IN THE UNITED STATES BANKRUPTCY COURT

DISTRICT OF DELAWARE
)
In re: )
)
ALLIED SYSTEMS HOLDINGS, INC. etal.,
1
)
)
Debtors. )
)
________________________________ )
)
ALLIED SYSTEMS HOLDINGS, INC. )
)
Plaintiff, )
v. )
)
AMERICAN MONEY MANAGEMENT CORP., )
A VENUE CAPITAL GROUP, BDCM )
OPPORTUNITY FUND II, LP, BENNETT )
MANAGEMENT, BLACK DIAMOND CLO 2005- )
1 LTD., DELMAR DISTRESSED )
OPPORTUNITIES MASTER FUND, MJX ASSET )
MANAGEMENT, LLC, PAR-FOUR )
INVESTMENT MANAGEMENT, SPECTRUM )
INVESTMENT PARTNERS LP, TEAK HILL )
CREDIT CAPITAL INVESTMENTS, LLC, THE )
CIT GROUP BUSINESS CREDIT, INC., THE )
OFFICIAL COMMITTEE OF UNSECURED )
CREDITORS, YUCAIPA AMERICAN )
ALLIANCE FUND II, L.P. and YUCAIPA )
AMERICAN ALLIANCE (PARALLEL) )
FUND II, L.P. )
)
Defendants. )
__________________________________ )
Chapter 11
Case No. 12 -11564 (CSS)
(Jointly Administered)
Re: Docket Nos. 538, 539
Adversary Proceeding
No.: 12-50947 (CSS)
Re: Docket No.4
The Debtors in these cases, along with the federal tax identification number (or Canadian business number
where applicable) for each of the Debtors, are: Allied Systems Holdings, Inc. (58-0360550); Allied
Automotive Group, Inc. (58-2201081); Allied Freight Broker LLC (59-2876864); Allied Systems (Canada)
Company (90-0169283); Allied Systems, Ltd. (L.P.) (58-1710028); Axis Areta. LLC (45-5215545); Axis
Canada Company (875688228); Axis Group, Inc. (58-2204628); Commercial Carriers, Inc. (38-0436930); CT
Services. Inc. (38-2918187); Cordin Transport LLC (38-1985795); F.J. Boutell Driveaway LLC (38-0365100);
GACS Incorporated (58-1944786); Logistic Systems. LLC (45-4241751); Logistic Technology, LLC (45-
4242057): QAT, Inc. (59-2876863): RMX LLC (31-0961359); Transport Support LLC (38-2349563); and
Terminal Services LLC (91-0847582).
{935.001-W0023380.}
APPENDIX TO
OMNIBUS OBJECTION OF BDCM OPPORTUNITY FUND II, LP, BLACK DIAMOND
CLO 2005-1 LTD, AND SPECTRUM INVESTMENT PARTNERS, L.P., TO THE
DEBTORS'
(1) MOTION FOR AN ORDER EXTENDING THE AUTOMATIC STAY TO CERTAIN
NON-DEBTOR THIRD PARTIES PURSUANT TO SECTIONS 105 AND 362 OF THE
BANKRUPTCY CODE,
(2) MOTION FOR AN ORDER PURSUANT TO SECTION 105(a) OF THE
BANKRUPTCY CODE AND BANKRUPTCY RULE 9019 APPROVING STIPULATION
AMONG THE DEBTORS, THE DIP AGENT, THE DIP LENDERS AND THE
OFFICIAL COMMITTEE OF UNSECURED CREDITORS REGARDING
POSTPETITION SECURED DIP FINANCING, CREDIT BIDDING UNDER SECTION
363 OF THE BANKRUPTCY CODE AND CERTAIN ADMINISTRATIVE MATTERS,
AND
(3) MOTION PURSUANT TO 11 U.S.C. 105(A), FOR ORDER AMENDING THE
FINAL ORDER PURSUANT TO 11 U.S.C. 361, 362, 363(c), 364(c)(1), 364(c)(2),
364(c)(3), 364(d), 364(e), 503(b), AND 507(a), FED. R. BANK. P. 2002,4001, AND 9014
AND DEL. BANK. L.R. 4001-2: (I) AUTHORIZING DEBTORS TO (A) OBTAIN
POSTPETITION SECURED DIP FINANCING AND (B) USE CASE COLLATERAL; (II)
GRANTING SUPERPRIORITY LIENS AND PROVIDING FOR SUPERPRIORITY
ADMINISTRATIVE EXPENSE STATUS; (III) GRANTING ADEQUATE
PROTECTION TO PREPETITION SECURED LENDERS; AND (IV) MODIFYING
THE AUTOMATIC STAY,
AND
CROSS-MOTION OF BDCM OPPORTUNITY FUND II, LP, BLACK DIAMOND CLO
2005-1 LTD, AND SPECTRUM INVESTMENT PARTNERS, L.P., PURSUANT TO 28
U.S.C. 1334(c) FOR ABSTENTION
LANDIS RATH & COBB LLP
Adam G. Landis (No. 3407)
Kerri K. Mumford (No. 4186)
919 Market Street, Suite 1300
Wilmington, Delaware 19801
Telephone: (302) 467-4400
Facsimile: (302) 467-4450
November 1, 2012
{935.001-W0023380.}
SCHULTE ROTH & ZABEL LLP
Adam C. Harris
Robert J. Ward
919 Third A venue
New York, New York 10022
Telephone: (212) 756-2000
Facsimile: (212) 593-5955
Counsel to BDCM Opportunity Fund II, LP,
Black Diamond CLO 2005-1 Ltd., and
Spectrum Investment Partners, L.P.
EXHIBIT A
EXECUTION VERSION
AMENDED AND RESTATED FIRST LIEN
SECURED SUPER-PRIORITY DEBTOR IN POSSESSION
AND EXIT CREDIT AND GUARANTY AGREEMENT
dated as of March 30, 2007
and
amended and restated as of May 15, 2007
among
ALLIED HOLDINGS, INC.
and
ALLIED SYSTEMS, LTD. (L.P.),
as Borrowers
CERTAIN SUBSIDIARIES OF
ALLIED HOLDINGS, INC.
and
ALLIED SYSTEMS, LTD. (L.P.),
as Guarantors,
VARIOUS LENDERS,
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Lead Arranger and Syndication Agent,
and
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Administrative Agent and Collateral Agent
$265,000,000 Senior Secured First Priority Credit Facilities
TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND INTERPRETATION ............................................................ 2
1.1
1.2
1.3
SECTION 2.
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
2.11
2.12
2.13
2.14
2.15
2.16
2.17
2.18
2.19
2.20
2.21
2.22
2.23
2.24
2.25
2.26
2.27
2.28
2.29
Definitions ................................................................................................................ 2
Accounting Terms .................................................................................................. 46
Interpretation, etc ................................................................................................... 4 7
LOANS AND LETTERS OF CREDIT ................................................................ .47
Term Loans ............................................................................................................ 47
Revolving Loans .................................................................................................... 49
Swing Line Loans .................................................................................................. 50
Issuance ofLetters of Credit and Purchase ofParticipations Therein ................... 52
Pro Rata Shares; Availability of Funds .................................................................. 60
Use of Proceeds ...................................................................................................... 61
Evidence ofDebt; Register; Lenders' Books and Records; Notes ......................... 61
Interest on Loans .................................................................................................... 62
Conversion/Continuation ....................................................................................... 65
Default Interest. ...................................................................................................... 65
Fees ........................................................................................................................ 66
Scheduled Payments .............................................................................................. 67
Voluntary Prepayments/Commitment Reductions; Call Protection ...................... 67
Mandatory Prepayments ........................................................................................ 69
Application ofPrepayments ................................................................................... 71
General Provisions Regarding Payments ............................................................... 72
Ratable Sharing ...................................................................................................... 73
Making or Maintaining Eurodollar Rate Loans ..................................................... 74
Increased Costs; Capital Adequacy ....................................................................... 76
Taxes; Withholding, etc ......................................................................................... 77
Obligation to Mitigate ............................................................................................ 79
Defaulting Lenders ................................................................................................. 80
Removal or Replacement of a Lender ................................................................... 81
Super-Priority Nature of Obligations and Lenders' Liens ..................................... 82
Payment of Obligations .......................................................................................... 83
No Discharge; Survival of Claims ......................................................................... 83
Waiver of any Priming Rights ............................................................................... 83
Co-Borrowers ......................................................................................................... 83
Judgment Currency ................................................................................................ 85
SECTION 3. CONDITIONS PRECEDENT AND CONVERSION TO EXIT
FACILITIES .......................................................................................................... 86
3.1 Closing Date ........................................................................................................... 86
3.2 Conditions to Each Credit Extension ..................................................................... 90
3.3 Exit Facilities Option ............................................................................................. 91
3.4
3.5
SECTION 4.
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
4.10
4.11
4.12
4.13
4.14
4.15
4.16
4.17
4.18
4.19
4.20
4.21
4.22
4.23
4.24
4.25
4.26
Conditions to Exit Facilities Option ...................................................................... 91
Conversion to Exit Facilities .................................................................................. 98
REPRESENTATIONS AND W ARRANTIES ...................................................... 99
Organization; Requisite Power and Authority; Qualification ................................ 99
Equity Interests and Ownership ............................................................................. 99
Due Authorization .................................................................................................. 99
No Conflict. ............................................................................................................ 99
Governmental Consents ....................................................................................... 1 00
Binding Obligation ............................................................................................... 1 00
Historical Financial Statements ........................................................................... 1 00
Projections ............................................................................................................ ! 01
No Material Adverse Change ............................................................................... 101
No Restricted Junior Payments ............................................................................ 1 01
Adverse Proceedings, etc ..................................................................................... 1 0 1
Payment ofTaxes ................................................................................................. l01
Properties ............................................................................................................. 1 02
Environmental Matters ......................................................................................... 1 02
No Defaults .......................................................................................................... 1 03
Material Contracts ................................................................................................ I 03
Governmental Regulation .................................................................................... 1 03
Margin Stock ........................................................................................................ 103
Employee Matters ................................................................................................ ! 03
Employee Benefit Plans ....................................................................................... l04
Certain Fees ......................................................................................................... 1 05
Solvency ............................................................................................................... ! 05
Compliance with Statutes, etc .............................................................................. 1 05
Disclosure ............................................................................................................ 1 06
Secured, Super -Priority Obligations .................................................................... 1 06
Patriot Act ............................................................................................................ 1 07
SECTION 5. AFFIRMATIVE COVENANTS ......................................................................... 107
5.1 Financial Statements and Other Reports ............................................................. .l07
5.2 Existence .............................................................................................................. 112
5.3 Payment ofTaxes and Claims .............................................................................. 113
5.4 Maintenance ofProperties ................................................................................... 113
5.5 Insurance .............................................................................................................. 113
5.6 Books and Records; Inspections .......................................................................... 114
5.7 Lenders Meetings ................................................................................................. 114
5.8 Compliance with Laws ........................................................................................ 114
5.9 Environmenta1 ...................................................................................................... 114
5.10 Subsidiaries .......................................................................................................... 116
5.11 Additional Real Estate Assets .............................................................................. 117
5.12 Interest Rate Protection ....................................................................................... .117
5.13 Further Assurances ............................................................................................... 117
5.14 Maintenance ofRatings ....................................................................................... 118
5.15 Final Supplemental DIP Order. ............................................................................ 118
11
5.16
5.17
5.18
SECTION 6.
6.1
6.2
6.3
6.4
6.5
6.6
6.7
6.8
6.9
6.10
6.11
6.12
6.13
6.14
6.15
6.16
6.17
6.18
6.19
6.20
6.21
6.22
SECTION?.
7.1
7.2
7.3
7.4
7.5
7.6
7.7
7.8
7.9
7.10
7.11
7.12
Canadian Supplemental Final Order .................................................................... 118
Restructuring Advisers ........................................................................................ 118
Intentionally Omitted ........................................................................................... 118
NEGATIVE COVENANTS ........................................................................ .,., .. 118
Indebtedness ......................................................................................................... 119
Liens ..................................................................................................................... 123
No Further Negative Pledges ............................................................................... 126
Restricted Junior Payments .................................................................................. 126
Restrictions on Subsidiary Distributions ............................................................. 127
Investments .......................................................................................................... 127
Financial Covenants ............................................................................................. 129
Fundamental Changes; Disposition of Assets; Acquisitions ............................... 132
Disposal of Subsidiary Interests ........................................................................... 134
Sales and Lease-Backs ......................................................................................... 135
Transactions with Shareholders and Affiliates .................................................... 135
Conduct ofBusiness ............................................................................................ 135
Amendments or Waivers of Organizational Documents and Certain
Agreements .......................................................................................................... 136
Haul Insurance ..................................................................................................... 13 6
Chapter 11 Claims; Adequate Protection ............................................................ .l36
DIP Orders and Canadian Orders ........................................................................ 136
Limitation on Prepayments ofPre-Petition Obligations ...................................... 136
Fiscal Year ........................................................................................................... 137
Repayment of Indebtedness ................................................................................. 137
Reclamation Claims ............................................................................................. 13 7
Chapter 11 Claims ................................................................................................ 137
Limitation on Voluntary Payments and Amendments or Waivers of the
Second Lien Credit Agreement. ........................................................................... 137
GUARANTY ....................................................................................................... 138
Guaranty of the Obligations ................................................................................. 138
Contribution by Guarantors ................................................................................. 138
Payment by Guarantors ........................................................................................ 139
Liability of Guarantors Absolute ......................................................................... 139
Waivers by Guarantors ........................................................................................ 141
Guarantors' Rights of Subrogation, Contribution, etc .......................................... 142
Subordination of Other Obligations ..................................................................... 142
Continuing Guaranty ............................................................................................ 143
Authority of Guarantors or Borrowers ................................................................. 143
Financial Condition ofBorrowers ....................................................................... 143
Bankruptcy, etc .................................................................................................... 143
Discharge of Guaranty Upon Sale of Guarantor. ................................................. 144
SECTION 8. EVENTS OF DEFAULT; CARVE-OUT EVENT .............................................. 144
8.1 Events of Default ................................................................................................. 144
8.2 Carve-Out Events ................................................................................................. 150
Ill
SECTION9.
9.1
9.2
9.3
9.4
9.5
9.6
9.7
9.8
AGENTS .............................................................................................................. 150
Appointment of Agents ........................................................................................ 150
Powers and Duties ................................................................................................ I 51
General Immunity ................................................................................................ 151
Agents Entitled to Act as Lender ......................................................................... 153
Lenders' Representations, Warranties and Acknowledgment.. ............................ 153
Right to Indemnity ............................................................................................... 153
Successor Administrative Agent, Collateral Agent and Swing Line Lender. ...... 154
Collateral Documents and Guaranty .................................................................... 155
SECTION 10. MISCELLANEOUS ............................................................................................ 156
10.1 Notices ................................................................................................................. 156
10.2 Expenses .............................................................................................................. 158
10.3 Indemnity ............................................................................................................. 158
10.4 Set-Off. ................................................................................................................. 159
10.5 Amendments and Waivers ................................................................................... 159
10.6 Successors and Assigns; Participations ............................................................... 163
10.7 Independence of Covenants ................................................................................. 167
10.8 Survival ofRepresentations, Warranties and Agreements ................................. .167
10.9 No Waiver; Remedies Cumulative ...................................................................... 167
10.10 Marshalling; Payments Set Aside ........................................................................ 167
10.11 Severability .......................................................................................................... 168
10.12 Obligations Several; Independent Nature of Lenders' Rights ............................. .168
10.I3 Headings .............................................................................................................. 168
IO.I4 APPLICABLE LAW ........................................................................................... I68
10.I5 CONSENT TO JURISDICTION ......................................................................... l68
10.16 WANER OF JURY TRIAL. ............................................................................... 169
I O.I7 Confidentiality ..................................................................................................... 169
1 O.I8 Usury Savings Clause .......................................................................................... 170
1 0.19 Counterparts ......................................................................................................... 1 71
10.20 Effectiveness ........................................................................................................ 17I
I 0.21 Patriot Act ............................................................................................................ 171
10.22 Electronic Execution of Assignments ................................................................. .17I
10.23 Post-Closing Actions ........................................................................................... 172
10.24 Joint and Several Liability ................................................................................... 172
10.25 Limitations Act, 2002 .......................................................................................... 172
10.26 Effect ofRestatement ........................................................................................... 172
IV
APPENDICES:
SCHEDULES:
EXHIBITS:
A-1
A-2
A-3
8
4.1
4.2
4.7
4.13
4.16
4.19
4.20
4.25
6.1
6.2
6.5
6.6
6.8(a)
6.8(b)
6.11
10.23
A-1
A-2
A-3
B-1
B-2
B-3
c
D
E
F
Term Loan Commitments
LC Commitments
Revolving Commitments
Notice Addresses
Jurisdictions of Organization and Qualification
Equity Interests and Ownership
Contingent Liabilities
Real Estate Assets
Material Contracts
Employee Matters
Employee Benefit Plans
Post-petition Liens
Certain Indebtedness
Certain Liens
Certain Restrictions on Subsidiary Distributions
Certain Investments
Planned Asset Sales
Restructuring Asset Sales
Certain Affiliate Transactions
Post-Closing Actions
Funding Notice
Conversion/Continuation Notice
Issuance Notice
Term Loan Note
Revolving Loan Note
Swing Line Note
Compliance Certificate
[Intentionally Omitted]
Assignment Agreement
Certificate Re Non-bank Status
G-1 Closing Date Certificate
G-2 Solvency Certificate
H Counterpart Agreement
I Pledge and Security Agreement
J Mortgage
K Landlord Waiver and Consent Agreement
L Intercompany Note
M Interim Supplemental DIP Order
N Canadian Pledge and Security Agreement
0 Affirmation Agreement
v
AMENDED AND RESTATED FIRST LIEN
SECURED SUPER-PRIORITY DEBTOR IN POSSESSION
AND EXIT CREDIT AND GUARANTY AGREEMENT
This AMENDED AND RESTATED FIRST LIEN SECURED SUPER-
PRIORITY DEBTOR IN POSSESSION AND EXIT CREDIT AND GUARANTY
AGREEMENT, dated as of March 30, 2007, and amended and restated as of May 15, 2007, is
entered into by and among ALLIED HOLDINGS, INC., a Georgia corporation and a debtor and
debtor in possession under Chapter 11 of the Bankruptcy Code (as defined below) ("Holdings"),
ALLIED SYSTEMS, LTD. (L.P.), a Georgia limited partnership and a debtor and debtor in
possession under Chapter 11 of the Bankruptcy Code ("Systems" and, together with Holdings,
the "Borrowers"), CERTAIN SUBSIDIARIES OF BORROWERS, as Subsidiary Guarantors,
the Lenders party hereto from time to time, GOLDMAN SACHS CREDIT PARTNERS L.P.
("GSCP"), as Syndication Agent (in such capacity, "Syndication Agent"), and THE CIT
GROUP/BUSINESS CREDIT, INC. ("CIT"), as Administrative Agent (together with its
permitted successors in such capacity, "Administrative Agent") and as Collateral Agent
(together with its permitted successor in such capacity, "Collateral Agent").
RECITALS:
WHEREAS, capitalized terms used in these Recitals shall have the respective
meanings set forth for such terms in Section 1.1 hereof;
WHEREAS, on July 31, 2005 (the "Petition Date"), Borrowers and each of the
other Debtors filed voluntary petitions for relief (collectively, the "Cases") under Chapter 11 of
the Bankruptcy Code with the Bankruptcy Court, which Cases have been recognized in Canada
pursuant to the Canadian Stay Order;
WHEREAS, from and after the Petition Date, Debtors are continuing to operate
their respective businesses and manage their respective properties as debtors in possession under
Sections 1107 and 11 08 of the Bankruptcy Code;
WHEREAS, Borrowers and the Agents and the Lenders party thereto previously
entered into the Secured Super-Priority Debtor in Possession and Exit Credit and Guaranty
Agreement, dated as of March 30, 2007 (the "Existing Credit Agreement"), as amended, under
which the Lenders extended to Borrowers certain credit facilities (the "Existing Credit
Facilities") consisting of $230,000,000 aggregate principal amount of Term Loans (the
"Existing Term Loans"), $35,000,000 aggregate principal amount of Revolving Commitments
and $50,000,000 aggregate principal amount of LC Commitments;
WHEREAS, Borrowers will refinance a portion of the Existing Term Loans with
the proceeds of a new second lien term loan in an aggregate principal amount equal to
$50,000,000 under a new Second Lien Secured Super-Priority Debtor in Possession and Exit
Credit and Guaranty Agreement dated as of May 15, 2007;
WHEREAS, Borrowers have agreed to secure all of their Obligations by granting
to Collateral Agent, for the benefit of Secured Parties, a First Priority Lien on substantially all of
their assets, including a pledge of all of the Equity Interests of each of their respective Domestic
Subsidiaries, 100% of all the Equity Interests of each of their Canadian Subsidiaries and 65% of
all the Equity Interests of each of their other respective first-tier Foreign Subsidiaries;
WHEREAS, Guarantors have agreed to guarantee the obligations of Borrowers
hereunder and to secure their respective Obligations by granting to Collateral Agent, for the
benefit of Secured Parties, a First Priority Lien on substantially all of their respective assets,
including a pledge of all of the Equity Interests of each of their respective Domestic Subsidiaries
(including Systems), 100% of all the Equity Interests of each of their respective Canadian
Subsidiaries and 65% of all the Equity Interests of each of their other respective directly owned
Foreign Subsidiaries; and
WHEREAS, the Lenders have agreed to grant an option to Borrowers to cause
the Credit Facilities to be converted to the Exit Facilities subject to certain terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND INTERPRETATION
1.1 Definitions. The following terms used herein, including in the preamble, recitals,
exhibits and schedules hereto, shall have the following meanings:
"Act" as defined in Section 3.1(r).
"Adjusted Eurodollar Rate" means, for any Interest Rate Determination Date
with respect to an Interest Period for a Eurodollar Rate Loan, the rate per annum obtained by
dividing (and rounding upward to the next whole multiple of 1/16 of 1%) (i) (a) the rate per
annum (rounded to the nearest 1/100 of 1 %) equal to the rate determined by Administrative
Agent to be the offered rate which appears on the page of the Telerate Screen which displays an
average British Bankers Association Interest Settlement Rate (such page currently being page
number 3740 or 3750, as applicable) for deposits (for delivery on the first day of such period)
with a term equivalent to such period in Dollars, determined as of approximately 11 :00 a.m.
2
(London, England time) on such Interest Rate Determination Date, or (b) in the event the rate
referenced in the preceding clause (a) does not appear on such page or service or if such page or
service shall cease to be available, the rate per annum (rounded to the nearest 1/100 of I%) equal
to the rate determined by Administrative Agent to be the offered rate on such other page or other
service which displays an average British Bankers Association Interest Settlement Rate for
deposits (for delivery on the first day of such period) with a term equivalent to such period in
Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest
Rate Determination Date, or (c) in the event the rates referenced in the preceding clauses (a) and
(b) are not available, the rate per annum (rounded to the nearest 11100 of 1%) equal to the
offered quotation rate to first class banks in the London interbank market by Deutsche Bank for
deposits (for delivery on the first day of the relevant period) in Dollars of amounts in same day
funds comparable to the principal amount of the applicable Loan of Administrative Agent, in its
capacity as a Lender, for which the Adjusted Eurodollar Rate is then being determined with
maturities comparable to such period as of approximately 11:00 a.m. (London, England time) on
such Interest Rate Determination Date, by (ii) an amount equal to (a) one minus (b) the
Applicable Reserve Requirement.
"Administrative Agent" as defined in the preamble hereto.
"Adverse Proceeding" means any action, suit, proceeding, hearing (whether
administrative, judicial or otherwise), governmental investigation or arbitration (whether or not
purportedly on behalf of Holdings or any of its Subsidiaries) at law or in equity, or before or by
any Governmental Authority, domestic or foreign (including any Environmental Claims),
whether pending or, to the knowledge of Holdings or any of its Subsidiaries, threatened against
or affecting Holdings or any of its Subsidiaries or any property of Holdings or any of its
Subsidiaries.
"Affected Lender" as defined in Section 2.18(b).
"Affected Loans" as defined in Section 2.18(b ).
"Affiliate" means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with, that Person. For the
purposes of this definition, "control" (including, with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as applied to any Person,
means the possession, directly or indirectly, of the power (i) to vote 5% or more (or, for purposes
of the definition of "Controlled Investment Affiliate", 50% or more) of the Securities having
ordinary voting power for the election of directors of such Person or (ii) to direct or cause the
direction of the management and policies of that Person, whether through the ownership of
voting securities or by contract or otherwise.
3
"Affirmation Agreement" shall mean the Affirmation Agreement substantially in
the form ofExhibit 0 hereto.
"Agent" means each of Administrative Agent, Syndication Agent and Collateral
Agent.
"Agent Affiliates" as defined in Section 10.1 (b )(iii).
"Aggregate Amounts Due" as defined in Section 2.17.
"Aggregate Payments" as defined in Section 7.2.
"Agreement" means this Amended and Restated First Lien Secured Super-
Priority Debtor in Possession and Exit Credit and Guaranty Agreement, dated as of March 30,
2007, and amended and restated as of May 15, 2007, as it may be amended, supplemented or
otherwise modified from time to time.
"AH Industries" means AH Industries Inc., an Alberta corporation.
"Applicable Reserve Requirement" means, at any time, for any Eurodollar Rate
Loan, the maximum rate, expressed as a decimal, at which reserves (including any basic
marginal, special, supplemental, emergency or other reserves) are required to be maintained with
respect thereto against "Eurocurrency liabilities" (as such tem1 is defined in Regulation D) under
regulations issued from time to time by the Board of Governors or other applicable banking
regulator. Without limiting the effect of the foregoing, the Applicable Reserve Requirement
shall reflect any other reserves required to be maintained by such member banks with respect to
(i) any category of liabilities which includes deposits by reference to which the applicable
Adjusted Eurodollar Rate or any other interest rate of a Loan is to be determined, or (ii) any
category of extensions of credit or other assets which include Eurodollar Rate Loans. A
Eurodollar Rate Loan shall be deemed to constitute Eurocurrency liabilities and as such shall be
deemed subject to reserve requirements without benefits of credit for proration, exceptions or
offsets that may be available from time to time to the applicable Lender. The rate of interest on
Eurodollar Rate Loans shall be adjusted automatically on and as of the effective date of any
change in the Applicable Reserve Requirement.
"Approved Electronic Communications" means any notice, demand,
communication, infunnalion, document or other material that any Credit Party provides to
Administrative Agent pursuant to any Credit Document or the transactions contemplated therein
which is distributed to the Agents or to the lenders by means of electronic communications
pursuant to Section 10.1 (b).
4
"Asset Sale" means a sale, lease or sub-lease (as lessor or sublessor), sale and
leaseback, assignment, conveyance, exclusive license (as licensor or sublicensor), transfer or
other disposition to, or any exchange of property with, any Person (other than Borrower or any
Guarantor Subsidiary), in one transaction or a series of transactions, of all or any part of
Holdings' or any of its Subsidiaries' businesses, assets or properties of any kind, whether real,
personal, or mixed and whether tangible or intangible, whether now owned or hereafter acquired,
leased or licensed, including the Equity Interests of any of Holdings' Subsidiaries, other than (i)
inventory (or other assets) sold, leased or licensed out in the ordinary course of business
(excluding any such sales, leases or licenses out by operations or divisions discontinued or to be
discontinued), (ii) sales or other dispositions of obsolete or worn out rigs and (iii) sales, leases or
licenses out of other assets for aggregate consideration of less than $500,000 with respect to any
transaction or series of related transactions and less than $1,000,000 in the aggregate during any
Fiscal Year.
"Assignment Agreement" means an Assignment and Assumption Agreement
substantially in the form of Exhibit E, with such amendments or modifications as may be
approved by Administrative Agent.
"Assignment Effective Date" as defined in Section 1 0.6(b ).
"Authorized Officer" means, as applied to any Person, any individual holding
the position of chairman of the board (if an officer), chief executive officer, president or one of
its vice presidents (or the equivalent thereof), and such Person's chief financial officer, controller,
assistant controller, treasurer or assistant treasurer.
"Bankruptcy Code" means Title 11 of the United States Code entitled "Bank-
ruptcy," as now and hereafter in effect, or any successor statute; provided, however, that, with
respect to the Cases, "Bankruptcy Code" means Title 11 of the United States Code, as in effect
on the Petition Date and as thereafter amended, if such amendments are made applicable to the
Cases.
"Bankruptcy Court" means the United States Bankruptcy Court for the Northern
District of Georgia or any other court having competent jurisdiction over the Cases.
"Base Fiscal Year" as defined in Section 6.7(c).
"Base Rate" means, for any day, a rate per annum equal to the greater of (i) the
Prime Rate in effect on such day and (ii) the Federal Funds Effective Rate in effect on such day
plus Y:! of 1%. Any change in the Base Rate due to a change in the Prime Rate or the Federal
Funds Effective Rate shall be effective on the effective day of such change in the Prime Rate or
the Federal Funds Effective Rate, respectively.
5
"Base Rate Loan" means a Loan bearing interest at a rate detennined by
reference to the Base Rate.
"Benchmark LIBOR Rate" as defined in Section 2.4(m).
"Beneficiary" means each Agent, Issuing Bank, Lender and Lender Counterparty.
"BIA'' means the Bankruptcy and Insolvency Act (Canada), as now or hereafter in
effect or any successor statute.
"Blue Thunder" means Blue Thunder Auto Transport, Inc. or any of its
Subsidiaries or Affiliates.
"Blue Thunder Equipment" means rigs (including tractors, trailers and related
equipment) purchased from Blue Thunder or any auctioneer acting on behalf of Blue Thunder
and any replacement parts or improvements made thereto.
"Board of Governors" means the Board of Governors of the United States
Federal Reserve System, or any successor thereto.
"Borrowers" as defined in the preamble hereto.
"Business Day" means (i) any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of New York or is a day on which banking
institutions located in such state are authorized or required by law or other governmental action
to close and (ii) with respect to all notices, determinations, fundings and payments in connection
with the Adjusted Eurodollar Rate or any Eurodollar Rate Loans, the term "Business Day" shall
mean any day which is a Business Day described in clause (i) and which is also a day for trading
by and between banks in Dollar deposits in the London interbank market.
"Canadian Court" means the Ontario Superior Court of Justice (Commercial
List).
"Canadian Confirmation Order" means an order of the Canadian Court under
Section 18.6 of the CCAA, together with all extensions, modifications and amendments thereto,
in each case in form and substance satisfactory to Agents, giving full effect to the Confirmation
Order, which order shall specifically but not exclusively confirm the Plan and approve and
authorize the transactions contemplated thereby and the granting of liens under the Credit
6
Documents and containing a release in favor of Administrative Agent and Syndication Agent and
the Lenders and their respective affiliates.
"Canadian Credit Party" means any Credit Party incorporated, organized or
otherwise established under the laws of Canada or any political subdivision of Canada.
"Canadian DIP Order" means the Canadian Interim Order or the Canadian Final
Order, as applicable.
"Canadian Final Order" means the order entitled "In the Matter of Section 18.6
of the Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36 and in the matter of Allied
Holdings and those subsidiaries listed on Schedule A hereto" entered by the Canadian Court on
April 16, 2007, as amended, supplemented or otherwise modified by the Canadian Supplemental
Interim Order and Canadian Supplemental Final Order.
"Canadian Insolvency Law" shall mean any of the BIA and the CCAA, and any
other applicable insolvency or other similar law.
"Canadian Interim Order" means the order entitled "In the Matter of Section
18.6 of the Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36 and in the matter of
Allied Holdings and those subsidiaries listed on Schedule A hereto" entered by the Canadian
Court on March 29, 2007, as amended, supplemented or otherwise modified by the Canadian
Supplemental Interim Order and Canadian Supplemental Final Order.
"Canadian Pledge and Security Agreement" means the Pledge and Security
Agreement, dated as of March 30, 2007, executed by each Canadian Credit Party, as it may be
amended, supplemented or otherwise modified from time to time.
"Canadian PPSA" means the Personal Property Security Act (Ontario) and the
Regulations thereunder, as from time to time in effect, provided, however, if the validity,
perfection (or opposability), effect of perfection or of non-perfection or priority of Collateral
Agent's security interest in any Collateral are governed by the personal property security laws or
laws relating to movable property of any jurisdiction other than Ontario, Canadian PPSA shall
mean those personal property security laws or laws relating to movable property in such other
jurisdiction for the purpose of the provisions hereof relating to such validity, perfection (or
opposability), effect of perfection or of non-perfection or priority and for the definitions related
to such provisions.
"Canadian Stay Order" means, collectively, the order of the Canadian Court
entered on August 5, 2005 under Section 18.6 of the CCAA, together with all extensions,
modifications and amendments thereto, in. each case in form and substance reasonably
7
satisfactory to the Agent, which, among other matters but not by way of limitation, recognizes
the Cases and imposes a stay of proceedings against creditors and others in Canada.
"Canadian Subsidiary" means any Subsidiary that is incorporated, organized or
otherwise established under the laws of Canada or any political subdivision of Canada.
"Canadian Supplemental Final Order" means an order of the Canadian Court
under Section 18.6 of the CCAA, together with all extensions, modifications and amendments
thereto, in each case in form and substance satisfactory to Agents, giving full effect to the Final
Supplemental DIP Order, which order shall specifically but not exclusively provide that each of
the Canadian Credit Parties is authorized to enter into the Credit Documents (as amended and
restated) to which it is a party, and provide, execute and deliver all such guarantees, documents,
security interests and liens as are contemplated in such Credit Documents and granting to the
Collateral Agent a fixed charge, mortgage, hypothec, security interest and lien in all of the
Collateral in which any of the Canadian Credit Parties now or hereafter has an interest ranking in
priority to all other encumbrances.
"Canadian Supplemental Interim Order" means an order of the Canadian
Court under Section 18.6 of the CCAA, together with all extensions, modifications and
amendments thereto, in each case in form and substance satisfactory to Agents, giving full effect
to the Interim Supplemental DIP Order, which order shall specifically but not exclusively
provide that each of the Canadian Credit Parties is authorized to enter into the Credit Documents
(as amended and restated) to which it is a party, and provide, execute and deliver all such
guarantees, documents, security interests and liens as are contemplated in such Credit
Documents and granting to the Collateral Agent a fixed charge, mortgage, hypothec, security
interest and lien in all of the Collateral in which any of the Canadian Credit Parties now or
hereafter has an interest ranking in priority to all other encumbrances.
"Capital Lease" means, as applied to any Person, any lease of any property
(whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is or
should be accounted for as a capital lease on the balance sheet ofthat Person.
"Carve-Out" means the following claims: (a) quarterly fees pursuant to 28 U.S.C.
1930(a)(6), (b) fees payable to the clerk ofthe Bankruptcy Court and any agent thereof and (c)
fees and disbursements incurred by the Credit Parties' professionals (other than the Credit Parties'
ordinary course professionals) and the professionals of the Committee retained prior to the Exit
Facilities Conversion Date (collectively, the "Professionals") and allowed by order of the
Bankruptcy Court in the aggregate amount not to exceed $1,500,000, in each case incurred prior
to a Carve-Out Event but not yet paid to the extent such fees and expenses are approved by the
Bankruptcy Court, subject to the right of Administrative Agent, the Lenders and any other party
in interest to object to the award of such fees and expenses; provided, however, that the Carve-
Out shall not include, apply to, or be available for any fees or expenses incurred by any party,
including the Credit Parties, any Committee or any Professional in connection with the
8
investigation, initiation or prosecution of any claims, defenses or causes of action (as described
in the Interim DIP Order) against the Agents or the Lenders and as otherwise provided in the
Interim DIP Order or Final DIP Order, as applicable; provided, further, prior to a Carve-Out
Event the Credit Parties shall be permitted to pay compensation and reimbursement of expenses
allowed and payable under Sections 328, 330 and 331 of the Bankruptcy Code or otherwise
pursuant to an order of the Bankruptcy Court, as the same may be due and payable, and the same
shall not reduce the Carve-Out, subject to the right of Administrative Agent, the Lenders and any
other party in interest to object to such payments; provided, further, that in the event of any
inconsistency in the definition of "Carve-Out" between the provisions of this Agreement and the
Interim DIP Order or Final DIP Order, the provisions of the Interim DIP Order or Final DIP
Order shall govern.
"Carve-Out Event" as defined in Section 8.2.
"Carve-Out Event Notice" as defmed in Section 8.2.
"Cases" as defined in the recitals hereto.
"Cash" means money, currency or a credit balance in any demand or Deposit
Account.
"Cash Equivalents" means, as at any date of determination, (i) marketable
securities (a) issued or directly and unconditionally guaranteed as to interest and principal by the
United States Government or the Government of Canada or (b) issued by any agency of the
United States, in each case maturing within one year after the date of acquisition; (ii) marketable
direct obligations issued by any state ofthe United States of America or any political subdivision
of any such state or any public instrumentality thereof, in each case maturing within one year
after the date of acquisition and having, at the time of the acquisition thereof, a rating of at least
A-1 from S&P or at least P-1 from Moody's; (iii) commercial paper maturing no more than one
year from the date of acquisition thereof and having, at the time of the acquisition thereof, a
rating of at least A-1 from S&P or at least P-1 from Moody's; (iv) certificates of deposit or
bankers' acceptances maturing within one year after the date of acquisition and issued or
accepted by any Lender or by any commercial bank organized under the laws of the United
States of America or any state thereof or the District of Columbia that (a) is at least "adequately
capitalized" (as defined in the regulations of its primary Federal banking regulator) and (b) has
Tier 1 capital (as defined in such regulations) of not less than $1 00,000,000; (v) fully
collateralized repurchase agreements with a term of not more than 90 days for securities
described in clause (i) above and entered into with a financial institution satisfying the criteria of
clause (iv) above; and (vi) shares of any money market mutual fund that (a) has substantially all
ofits assets invested continuously in the types of investments referred to in clauses (i) through (v)
above, (b) has net assets of not less than $500,000,000, and (c) has the highest rating obtainable
from either S&P or Moody's.
9
"CCAA" means Companies' Creditors Arrangement Act (Canada), as now and
hereafter in effect, or any successor statute.
"Certificate re Non-Bank Status" means a certificate substantially in the forn1 of
Exhibit F.
"Change of Control" means, at any time on or after the Exit Facilities
Conversion Date (i) prior to a Qualified Public Offering, (a) Sponsor and its Controlled
Investment Affiliates shall not beneficially own and control at least 40% on a fully diluted basis
of the economic and voting interests in the Equity Interests of Holdings, (b) Sponsor and its
Controlled Investment Affiliates fail to elect a majority of the members of the board of directors
(or similar governing body) of Holdings or (c) any Person or "group" (within the meaning of
Rules 13d-3 and 13d-5 under the Exchange Act) shall at any time have acquired beneficial
ownership on a fully diluted basis of the voting and/or economic interests in the Equity Interests
of Holdings greater than the beneficial ownership on a fully diluted basis of the voting and/or
economic interests in the Equity Interests of Holdings owned by the Sponsor and its Controlled
Investment Affiliates at such time; (ii) after a Qualified Public Offering, any Person or "group"
(within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) other than Sponsor and
its Controlled Investment Affiliates (a) shall have acquired beneficial ownership of 35% or more
on a fully diluted basis ofthe voting and/or economic interest in the Equity Interests of Holdings
or (b) shall have obtained the power (whether or not exercised) to elect a majority of the
members of the board of directors (or similar governing body) of Holdings; (iii) Holdings shall
cease to beneficially own and control, directly or indirectly, 100% on a fully diluted basis of the
economic and voting interest in the Equity Interests of Systems; (iv) the majority of the seats
(other than vacant seats) on the board of directors (or similar governing body) of Holdings cease
to be occupied by Persons who either (a) were members of the board of directors of Holdings on
the Exit Facilities Conversion Date or (b) were nominated for election by the board of directors
of Holdings, a majority of whom were directors on the Exit Facilities Conversion Date or whose
election or nomination for election was previously approved by a majority of such directors.
"CIT" as defined in the preamble.
"Claim" has the meaning specified in Section 101(5) ofthe Bankruptcy Code.
"Class" means with respect to Lenders, each of the following classes of Lenders:
(i) Lenders having Term Loan Exposure, (ii) Lenders having Revolving Loan Exposure and (iii)
Lenders having LC Deposits.
"Closing Date" means March 30, 2007.
10
"Closing Date Certificate" means a Closing Date Certificate substantially in the
form of Exhibit G-1.
"Collateral" means, collectively, all of the real, personal and mixed property
(including Equity Interests) in which Liens are purported to be granted pursuant to the Collateral
Documents as security for the Obligations.
"Collateral Agent" as defined in the preamble hereto.
"Collateral Documents" means the Pledge and Security Agreement, Canadian
Pledge and Security Agreement, the Quebec Security the Collateral Servicing Agreement, the
Mortgages, the Intellectual Property Security Agreements, the Landlord Personal Property
Collateral Access Agreements, if any, and all other instruments, documents and agreements
delivered by any Credit Party pursuant to this Agreement or any of the other Credit Documents
in order to.grant to Collateral Agent, for the benefit of Secured Parties, or perfect a Lien on any
real, personal or mixed property of that Credit Party as security for the Obligations.
"Collateral Questionnaire" means a certificate in form satisfactory to Collateral
Agent that provides information with respect to the personal or mixed property of each Credit
Party.
"Collateral Servicing Agreement" means a Collateral Servicing Agreement, in
form and substance reasonably satisfactory to the Collateral Agent, by and among Corporation
Service Company, each Credit Party (other than any Foreign Subsidiary), the Collateral Agent
and the Second Lien Collateral Agent.
"Committed Capital Expenditures" as defined in Section 6.7(d).
"Committee" means the Official Committee ofUnsecured Creditors appointed in
the Cases pursuant to Section 1102 ofthe Bankruptcy Code, on August 5, 2005, as reconstituted
from time to time.
"Commitment" means any Revolving Commitment, LC Commitment or Term
Loan Commitment.
"Commodity Agreement" means any commodity exchange contract, commodity
swap agreement, futures contract, option contract, synthetic cap or other similar agreement or
arrangement, each of which is for the purpose of hedging the commodity risk associated with
Holdings' and its Subsidiaries' operations and not for speculative purposes.
11
"Compliance Certificate" means a Compliance Certificate substantially in the
form ofExhibit C.
"Confirmation Order" as defined in Section 3.4(e)(iv).
"Consolidated Adjusted EBITDA" means, for any period, an amount
determined for Holdings and its Subsidiaries on a consolidated basis equal to (i) Consolidated
Net Income for such period, plus, to the extent deducted in determining such Consolidated Net
Income, the sum, without duplication, of amounts for (a) Consolidated Interest Expense for such
period; (b) consolidated income, single business, franchise, unitary or gross receipt tax expense
for such period; (c) total depreciation expense for such period; (d) total amortization expense for
such period; (e) the cumulative effect (whether positive or negative) of any change in accounting
principles; (f) management fees and expenses paid during such period pursuant to the
Management Agreement to the extent permitted hereunder; (g) Transaction Costs for such period;
(h) with respect to any period (including any Fiscal Quarter) during Fiscal Year 2006 or 2007,
costs and expenses resulting from administrative expenses paid with respect to the Cases for
professional fees and expenses in an amount up to, but not exceeding in the aggregate for Fiscal
Year 2006 and 2007, $30,000,000; (i) with respect to any period (including any Fiscal Quarter)
during Fiscal Year 2006 or 2007, amounts paid as cure payments or similar costs in connection
with assumptions of executory contracts assumed during the Cases or as part of the Plan in an
amount up to, but not exceeding in the aggregate for Fiscal Year 2006 and 2007, $5,000,000; (j)
fees and charges related to any events or transactions that are unusual in nature and infrequent in
occurrence, in that it is unrelated to, or only incidentally related to, the current ordinary and
typical activities of Borrowers and would not reasonably be expected to recur in a normal
operating cycle in an amount up to, but not exceeding, $1,000,000 in the aggregate for any
periods occurring during any Fiscal Year and, $3,000,000 in the aggregate from the Closing Date
to the date of determination; (k) with respect to any period (including any Fiscal Quarter) during
Fiscal Year 2007, non-recurring costs and expenses arising from or recognized in connection
with the consummation and effectiveness of the Plan in an amount up to, but not exceeding in the
aggregate for Fiscal Year 2007, $5,000,000; and (1) other non-Cash charges for such period
(excluding any such non- Cash charge to the extent that it represents an accrual or reserve for
potential Cash payment in any future period or amortization of a prepaid Cash payment that was
made in a prior period); and (m) with respect to any period (including any Fiscal Quarter) during
Fiscal Year 2007, amounts paid to Sponsor in connection with a claim by Sponsor for substantial
contribution in accordance with the Plan in an amount up to, but not exceeding, $5,000,000,
minus (ii) to the extent included in determining such Consolidated Net Income, non-Cash gains
for such period (excluding any such non -Cash gain to the extent it represents the reversal of an
accrual or reserve for potential Cash gain in any prior period).
"Consolidated Capital Expenditures" means, for any period, the aggregate of all
expenditures of Holdings and its Subsidiaries during such period determined on a consolidated
basis that, in accordance with GAAP, are or should be included in "purchase of property and
equipment" or similar items reflected in the consolidated statement of cash flows of Holdings
12
and its Subsidiaries, but excluding, however, any such expenditures made in connection with a
Permitted Acquisition permitted hereunder.
"Consolidated Cash Interest Expense" means, for any period, total interest
expense (including that portion attributable to Capital Leases in accordance with GAAP and
capitalized interest) of Holdings and its Subsidiaries on a consolidated basis with respect to all
outstanding Indebtedness of Holdings and its Subsidiaries, including all commissions, discounts
and other fees and charges owed with respect to letters of credit and net costs under Interest Rate
Agreements, but excluding, however, any amount not payable in Cash and any amounts referred
to in Section 2.ll(f) payable on or before the Closing Date.
"Consolidated Current Assets" means, as at any date of determination, the total
assets of Holdings and its Subsidiaries on a consolidated basis that may properly be classified as
current assets in conformity with GAAP, excluding Cash and Cash Equivalents.
"Consolidated Current Liabilities" means, as at any date of determination, the
total liabilities of Holdings and its Subsidiaries on a consolidated basis that may properly be
classified as current liabilities in conformity with GAAP, excluding the current portion of long
term debt.
"Consolidated Excess Cash Flow" means, for any Fiscal Year, an amount (if
positive) equal to: (i) the sum, without duplication, of (a) Consolidated Adjusted EBITDA for
such Fiscal Year; plus (b) the Consolidated Working Capital Adjustment for such Fiscal Year;
minus (ii) the sum, without duplication, of (a) scheduled repayments of Indebtedness for
borrowed money (including the implied principal component of scheduled payments made on
Capital Leases, but excluding repayments of Revolving Loans or Swing Line Loans except to the
extent the Revolving Commitments are permanently reduced in connection with such
repayments) paid in Cash during such Fiscal Year; (b) Consolidated Capital Expenditures for
such Fiscal Year (net of any proceeds of (x) any related financings with respect to such
expenditures, (y) any sales of assets used to finance such expenditures and (z) any Spent
Committed Capital Expenditures deducted in the calculation of Consolidated Excess Cash Flow
for the preceding Fiscal Year); (c) Consolidated Cash Interest Expense for such Fiscal Year;
(d) with respect to Fiscal Year 2007, any amounts referred to in Section 2.11 (f) paid on or before
the Closing Date; (e) consolidated income, single business, franchise, unitary or gross receipt tax
expense payable in cash with respect to such Fiscal Year; (f) management fees and expenses paid
during such Fiscal Year pursuant to the Management Agreement to the extent permitted
hereunder; (g) with respect to Fiscal Year 2007, Transaction Costs paid in Cash during such
Fiscal Year; (h) with respect to Fiscal Year 2007, costs and expenses resulting from
administrative expenses with respect to the Cases which are for professional fees and expenses
and are paid in Cash during such Fiscal Year; (i) amounts paid in cash during such Fiscal Year as
cure payments or similar costs in connection with assumptions of executory contracts assumed
during the Cases or as part of the Plan; U) fees, charges and expenses related to any events or
transactions that are paid in Cash during such Fiscal Year and are unusual in nature and
infrequent in occurrence, in that it is unrelated to, or only incidentally related to, the current
13
ordinary and typical activities of Borrowers and would not reasonably be expected to recur in a
normal operating cycle in an amount up to, but not exceeding, in the aggregate for any periods
occurring during any Fiscal Year $1,000,000 and, $3,000,000 in the aggregate from the Closing
Date to the date of determination; (k) with respect to Fiscal Year 2007, non-recurring costs and
expenses paid in Cash during such Fiscal Year arising from or recognized in coru1ection with the
consummation and effectiveness of the Plan; and (I) the amount of Spent Committed Capital
Expenditures paid in Cash within ninety days after the end of such Fiscal Year.
"Consolidated Interest Expense" means, for any period, total interest expense
(including that portion attributable to Capital Leases in accordance with GAAP and capitalized
interest) of Holdings and its Subsidiaries on a consolidated basis with respect to all outstanding
Indebtedness of Holdings and its Subsidiaries, including all commissions, discounts and other
fees and charges owed with respect to letters of credit and net costs under Interest Rate
Agreements, but excluding, however, any amounts referred to in Section 2.ll(f) payable on or
before the Closing Date.
"Consolidated Net Income" means, for any period, (i) the net income (or loss) of
Holdings and its Subsidiaries on a consolidated basis for such period taken as a single accounting
period determined in conformity with GAAP, minus (ii) (a) the income (or loss) of any Person
(other than a Subsidiary of Holdings) in which any other Person (other than Holdings or any of
its Subsidiaries) has a joint interest, except to the extent of the amount of dividends or other
distributions actually paid to Holdings or any of its Subsidiaries by such Person during such
period, (b) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary
of Holdings or is merged into or consolidated with Holdings or any of its Subsidiaries or that
Person's assets are acquired by Holdings or any of its Subsidiaries, (c) the income of any
Subsidiary of Holdings to the extent that the declaration or payment of dividends or similar
distributions by that Subsidiary of that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary, (d) any after-tax gains or losses
attributable to Asset Sales or returned surplus assets of any Pension Plan, and (e) (to the extent
not included in clauses (a) through (d) above) any net extraordinary gains or net extraordinary
losses.
"Consolidated Total Debt" means, as at any date of determination, the aggregate
stated balance sheet amount of all Indebtedness of Holdings and its Subsidiaries determined on a
consolidated basis in accordance with GAAP.
"Consolidated Working Capital" means, as at any date of determination, the
excess of Consolidated Current Assets over Consolidated Current Liabilities.
"Consolidated Working Capital Adjustment" means, for any period on a
consolidated basis, the amount (which may be a negative number) by which Consolidated
14
Working Capital as of the beginning of such period exceeds (or is less than) Consolidated
Working Capital as ofthe end of such period.
"Contractual Obligation" means, as applied to any Person, any provision of any
Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking,
agreement or other instrument to which that Person is a party or by which it or any of its
properties is bound or to which it or any of its properties is subject.
"Contributing Guarantors" as defined in Section 7.2.
"Controlled Foreign Corporation" shall mean a "controlled foreign corporation"
as defined in the Internal Revenue Code.
"Controlled Investment Affiliate" means any Affiliate of Sponsor which is
organized primarily for making equity or debt investments in Holdings or other similar portfolio
companies.
"Conversion/Continuation Date" means the effective date of a continuation or
conversion, as the case may be, as set forth in the applicable Conversion/Continuation Notice.
"Conversion/Continuation Notice" means a Conversion/Continuation Notice
substantially in the form of Exhibit A-2.
"Counterpart Agreement" means a Counterpart Agreement substantially in the
form of Exhibit H delivered by a Credit Party pursuant to Section 5.1 0.
"Credit Date" means the date of a Credit Extension.
"Credit Document" means any of this Agreement, the Notes, if any, the
Collateral Documents, the Intercreditor Agreement, any documents executed by the
Administrative Agent in connection with or relating to the LC Deposit Account, any documents
or certificates executed by Borrowers in favor of Issuing Bank relating to Letters of Credit, and
all other documents, instruments or agreements executed and delivered by a Credit Party for the
benefit of any Agent, Issuing Bank or any Lender in connection herewith.
"Credit Extension" means the making of a Loan, the issuing of a Letter of Credit
or the making of an LC Deposit.
15
"Credit Facilities" means the credit facilities provided by the Lenders and
Issuing Bank pursuant to this Agreement.
"Credit Party" means each Borrower and each Guarantor.
"Currency Agreement" means any foreign exchange contract, currency swap
agreement, futures contract, option contract, synthetic cap or other similar agreement or
arrangement, each of which is for the purpose of hedging the foreign currency risk associated
with Holdings' and its Subsidiaries' operations and not for speculative purposes.
"Debtors" means Holdings, Systems, and certain Subsidiaries named as debtors
in the Plan, each as debtor in the Cases under Chapter 11 of the Bankruptcy Code.
"Default" means a condition or event that, after notice or lapse of time or both,
would constitute an Event of Default.
"Default Excess" means, with respect to any Defaulting Lender, the excess, if any,
of such Defaulting Lender's Pro Rata Share of the aggregate outstanding principal amount of
Loans of all Lenders (calculated as if all Defaulting Lenders (including such Defaulting Lender)
had funded all of their respective Defaulted Loans) over the aggregate outstanding principal
amount of all Loans of such Defaulting Lender.
"Default Period" means, with respect to any Defaulting Lender, the period
commencing on the date of the applicable Funding Default and ending on the earliest of the
following dates: (i) the date on which all Commitments are cancelled or terminated and/or the
Obligations are declared or become immediately due and payable, (ii) the date on which (a) the
Default Excess with respect to such Defaulting Lender shall have been reduced to zero (whether
by the funding by such Defaulting Lender of any Defaulted Loans of such Defaulting Lender or
by the non-pro rata application of any voluntary or mandatory prepayments of the Loans in
accordance with the terms of Section 2.13 or Section 2.14 or by a combination thereof) and (b)
such Defaulting Lender shall have delivered to Borrowers and Administrative Agent a written
reaffirmation of its intention to honor its obligations hereunder with respect to its Commitments,
and (iii) the date on which Borrowers, Administrative Agent and Requisite Lenders waive all
Funding Defaults of such Defaulting Lender in writing.
"Defaulted Loan" as defined in Section 2.22.
"Defaulting Lender" as defined in Section 2.22.
16
"Deposit Account" means a demand, time, savings, passbook or like account with
a bank, savings and loan association, credit union or like organization, other than an account
evidenced by a negotiable certificate of deposit.
"DIP Order" means the Interim DIP Order or the Final DIP Order, as applicable.
"Disclosure Statement" means the written disclosure statement that relates to the
Plan, as approved by the Bankruptcy Court pursuant to Section 1125 of the Bankruptcy Code and
Rule 3017 of the Federal Rules of Bankruptcy Procedure, as such disclosure statement may be
amended, modified or supplemented from time to time in accordance with applicable law.
"Disqualified Equity Interests" means any Equity Interest which, by its terms
(or by the terms of any security or other Equity Interests into which it is convertible or for which
it is exchangeable), or upon the happening of any event or condition (i) matures or is mandatorily
redeemable (other than solely for Equity Interests which are not otherwise Disqualified Equity
Interests), pursuant to a sinking fund obligation or otherwise, (ii) is redeemable at the option of
the holder thereof (other than solely for Equity Interests which are not otherwise Disqualified
Equity Interests), in whole or in part, (iii) provides for the scheduled payments or dividends in
cash, or (iv) is or becomes convertible into or exchangeable for Indebtedness or any other Equity
Interests that would constitute Disqualified Equity Interests, in each case, prior to the date that is
91 days after the Maturity Date.
"Dollars" and the Sign "$" mean the lawful money of the United States of
America.
"Domestic Subsidiary" means any Subsidiary organized under the laws of the
United States of America, any State thereof or the District of Columbia.
"Eligible Assignee" means (i) any Lender, any Affiliate of any Lender and any
Related Fund (any two or more Related Funds being treated as a single Eligible Assignee for all
purposes hereof), and (ii) any commercial bank, insurance company, investment or mutual fund
or other entity that is an "accredited investor" (as defined in Regulation D under the Securities
Act) and which extends credit or buys loans; provided, no Affiliate of Holdings or Sponsor shall
be an Eligible Assignee.
"Employee Benefit Plan" means, in respect of any Credit Party other than a
Canadian Credit Party, any "employee benefit plan" as defined in Section 3(3) of ERISA which
is or was sponsored, maintained or contributed to by, or required to be contributed by, Holdings,
any of its Subsidiaries or any of their respective ERISA Affiliates, and in respect of any
Canadian Credit Party, any employee benefit plan of any nature or kind that is not a Pension Plan
17
or Multiemployer Plan and is maintained by or contributed to, or required to be maintained by or
contributed to, by such Canadian Credit Party.
"Environmental Claim" means any investigation, notice, notice of violation,
claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional
or otherwise), by any Governmental Authority or any other Person, arising (i) pursuant to or in
connection with any actual or alleged violation of any Environmental Law; (ii) in connection
with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (iii) in
connection with any actual or alleged damage, injury, threat or harm to health, safety, natural
resources or the environment.
"Environmental Laws" means any and all current or future foreign or domestic,
federal, state or provincial (or any subdivision of either of them), statutes, ordinances, standards,
decrees, orders-in-council, orders, rules, regulations, judgments, Governmental Authorizations,
or any other requirements of Governmental Authorities relating to (i) environmental matters,
including those relating to any Hazardous Materials Activity; (ii) the generation, use, storage,
transportation or disposal of Hazardous Materials; or (iii) occupational safety and health,
industrial hygiene, land use (as it relates to Hazardous Materials) or the protection of human,
plant or animal health or welfare (as it relates to Hazardous Materials) or of the environment or
natural resources (including ambient air, surface water, groundwater, wetlands, land surface or
subsurface strata), in any manner applicable to Holdings or any of its Subsidiaries or any Facility.
"Equity Interests" means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation), including partnership interests and
membership interests, and any and all warrants, rights or options to purchase or other
arrangements or rights to acquire any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto.
"ERISA Affiliate" means, as applied to any Person, (i) any corporation which is a
member of a controlled group of corporations within the meaning of Section 414(b) of the
Internal Revenue Code of which that Person is a member; (ii) any trade or business (whether or
not incorporated) which is a member of a group of trades or businesses under common control
within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a
member; and (iii) any member of an affiliated service group within the meaning of Section
414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in
clause (i) above or any trade or business described in clause (ii) above is a member. Any former
ERISA Affiliate of Holdings or any of its Subsidiaries shall continue to be considered an ERISA
Affiliate of Holdings or any such Subsidiary within the meaning of this definition with respect to
the period such entity was an ERISA Affiliate of Holdings or such Subsidiary and with respect to
18
liabilities arising after such period for which Holdings or such Subsidiary could be liable under
the Internal Revenue Code or ERISA.
"ERISA Event" means, only to the extent such event would not be discharged by
the consummation of the Plan on the Plan Effective Date, (i) a "reportable event" within the
meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any
Pension Plan (excluding those for which the provision for 30-day notice to the PBGC has been
waived by regulation); (ii) the failure to meet the minimum funding standard of Section 412 of
the Internal Revenue Code with respect to any Pension Plan (whether or not waived in
accordance with Section 412(d) of the Internal Revenue Code) or the failure to make by its due
date a required installment under Section 412(m) of the Internal Revenue Code with respect to
any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iii)
the provision by the administrator of any Pension Plan pursuant to Section 4041 (a)(2) of ERISA
of a notice of intent to terminate such plan in a distress termination described in Section 4041 (c)
of ERISA; (iv) the withdrawal by Holdings, any of its Subsidiaries or any of their respective
ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the
termination of any such Pension Plan resulting in liability to Holdings, any of its Subsidiaries or
any of their respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the institution
by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or
condition which might constitute grounds under ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan; (vi) the imposition of liability on
Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section
4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the
withdrawal of Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates in a
complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from
any Multiemployer Plan if there is any potential liability therefore, or the receipt by Holdings,
any of its Subsidiaries or any of their respective ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of
ERISA, or that it intends to terminate or has terminated under Section 4041 A or 4042 of ERISA;
(viii) the occurrence of an act or omission which could give rise to the imposition on Holdings,
any of its Subsidiaries or any of their respective ERISA Affiliates of fines, penalties, taxes or
related charges under Chapter 43 of the Internal Revenue Code or under Section 409, Section
502(c), (i) or (1), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (ix) the
assertion of a material claim (other than routine claims for benefits) against any Employee
Benefit Plan other than a Multi employer Plan or the assets thereof, or against Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates in connection with any Employee
Benefit Plan; (x) receipt from the Internal Revenue Service of notice of the failure of any
Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a)
ofthe Internal Revenue Code) to qualify under Section 40l(a) of the Internal Revenue Code, or
the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation
under Section 501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien pursuant to
Section 401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to ERISA with respect to
any Pension Plan.
19
"Eurodollar Rate Loan" means a Loan bearing interest at a rate determined by
reference to the Adjusted Eurodollar Rate.
"Event of Default" means each of the conditions or events set forth in Section R.l.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor statute.
"Executive Officer" means, as applied to any Person, any individual holding the
position of chairman of the board (if an officer), chief executive officer, president (or the
equivalent thereof), such Person's chief financial officer or treasurer and (except for purposes of
Sections 5.2 and 6.8) such Person's vice president of human resources and risk management.
"Existing Credit Agreement" has the meaning specified in the recitals to this
Agreement.
"Existing Credit Facilities" has the meaning specified in the recitals to this
Agreement.
"Existing Term Loans" has the meamng specified m the recitals to this
Agreement.
"Existing DIP Credit Agreement" means the post-petition credit agreement,
dated as of August 1, 2005, as amended, among Borrowers, the other credit parties party thereto,
the lenders party thereto and General Electric Capital Corporation, Morgan Stanley Senior
Funding, Inc. and Marathon Structured Finance Fund, L.P ., as agents.
"Existing DIP Credit Agreement Reserve Amount" means an amount equal to
the "Reserve" under and as defined in the letter agreement, dated as of March 30, 2007, by and
among each of the Debtors, General Electric Capital Corporation and Morgan Stanley Senior
Funding, Inc.
"Existing Indebtedness" means all Indebtedness and other Obligations (as
defined therein) outstanding under the Existing DIP Credit Agreement and other documents
related thereto.
"Exit Facilities" means the Credit Facilities after the Exit Facilities Conversion
Date.
20
"Exit Facilities Conversion Date" means the first date on which a Plan becomes
effective, the Exit Facilities Option has been exercised and each of the conditions to exercising
the Exit Facilities Option set forth in Section 3.4 has been satisfied or waived.
"Exit Facilities Option" as defined in Section 3.3.
"Facility" means any real property (including all buildings, fixtures or other
improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by
Holdings or any of its Subsidiaries or any of their respective predecessors or Affiliates.
"Fair Share" as defined in Section 7.2.
"Fair Share Contribution Amount" as defined in Section 7.2.
"Federal Funds Effective Rate" means for any day, the rate per annum
(expressed, as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1 %) equal to
the weighted average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank ofNew York on the Business Day next succeeding such day; provided, (i)
if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such
rate on such transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (ii) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to
Administrative Agent, in its capacity as a Lender, on such day on such transactions as
determined by Administrative Agent.
"Final DIP Order" that certain Final Order under 11 U.S.C. 1 05(a), 362, 363,
and 364 and bankruptcy rules 2002, 4001, 6004, and 9014 (i) authorizing Debtors to (a) obtain
new secured post-petition financing to refinance existing post-petition financing; (b) convert new
post-petition financing into exit financing; and (c) pay related fees and expenses, and (ii)
granting related relief entered by the Bankruptcy Court on April 13, 2007, as amended,
supplemented or otherwise modified by the Interim Supplemental DIP Order and Final
Supplemental DIP Order.
"Final Supplemental DIP Order" means an order (in form and substance
substantially similar to the Interim DIP Order and otherwise satisfactory to Syndication Agent
and Administrative Agent) of the Bankruptcy Court pursuant to Section 364 of the Bankruptcy
Code approving this Agreement and the other Credit Documents that (a) has not been modified
or amended without the consent of Administrative Agent and Syndication Agent, or vacated,
reversed, revoked, rescinded, stayed or appealed from, except as Administrative Agent and
Syndication Agent may otherwise specifically consent, (b) with respect to which the time to
21
appeal, petition for certiorari, application or motion for reversal, rehearing, reargument, stay, or
modification has expired, (c) no petition, application or motion for reversal, rehearing,
reargument, stay or modification thereof or for a writ of certiorari with respect thereto has been
filed or granted or the order or judgment of the Bankruptcy Court has been affirmed by the
highest court to which the order or judgment was appealed and (d) is no longer subject to any or
further appeal or petition, application or motion for reversal, rehearing, reargument, stay or
modification thereof or for any writ of certiorari with respect thereto or further judicial review in
any form.
"Financial Officer Certification" means, with respect to the financial statements
for which such certification is required, the certification of the chief financial officer of Holdings
that such financial statements fairly present, in all material respects, the financial condition of
Holdings and its Subsidiaries as at the dates indicated and the results of their operations and their
cash flows for the periods indicated, subject to changes resulting from audit and normal year-end
adjustments.
"Financial Plan" as defined in Section 5.1 (i).
"First Priority" means, with respect to any Lien purported to be created in any
Collateral pursuant to any Collateral Document, that such Lien is the only Lien to which such
Collateral is subject, other than any Permitted Lien.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Holdings and its Subsidiaries ending on
December 31 of each calendar year.
"Flood Hazard Property" means any Real Estate Asset subject to a mortgage in
favor of Collateral Agent, for the benefit of the Secured Parties, and located in an area designated
by the Federal Emergency Management Agency as having special flood or mud slide hazards.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic Subsidiary.
"Funding Default" as defined in Section 2.22.
"Funding Guarantors" as defined in Section 7.2.
"Funding Notice" means a notice substantially in the form of Exhibit A- j.
22
"GAAP" means, subject to the limitations on the application thereof set forth in
Section 1.2, United States generally accepted accounting principles in effect as of the date of
determination thereof
"Governmental Acts" means any act or omission, whether rightful or wrongful,
of any present or future de jure or de facto government or Governmental Authority.
"Governmental Authority" means any federal, state, provincial, municipal,
national or other government, governmental department, commission, board, bureau, court,
tribunal, agency or instrumentality or political subdivision thereof or any entity, officer or
examiner exercising executive, legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether associated with a state of the
United States, the United States, or a foreign entity or government.
"Governmental Authorization" means any permit, license, authorization, plan,
directive, consent order or consent decree of or from any Governmental Authority.
"Grantor" as defined in the Pledge and Security Agreement.
"GSCP" as defined in the preamble.
"Guaranteed Obligations" as defined in Section 7 .1.
"Guarantor" means each Domestic Subsidiary of either Borrower and (except as
provided in Section 7.12) each Canadian Subsidiary of either Borrower, excluding in each case,
any Inactive Subsidiary.
"Guarantor Subsidiary" means each Guarantor.
"Guaranty" means the guaranty of each Guarantor set forth in Section 7.
"Hazardous Materials" means any chemical, material or substance, exposure to
which is prohibited, limited or regulated by any Governmental Authority or which may or could
pose a hazard to the health and safety of the owners, occupants or any Persons in the vicinity of
any Facility or to the indoor or outdoor environment.
"Haul Insurance" means, collectively, (a) Haul Insurance Limited, a Cayman
Islands corporation, and (b) any other captive insurance company hereafter formed by Holdings.
23
"Hazardous Materials Activity" means any past, current, proposed or threatened
activity, event or occurrence involving any Hazardous Materials, including the use, manufacture,
possession, storage, holding, presence, existence, location, Release, threatened Release,
discharge, placement, generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any
corrective action or response action with respect to any ofthe foregoing.
"Hedge Agreement" means an Interest Rate Agreement, a Currency Agreement
or a Commodity Agreement entered into with a Lender Counterparty and reasonably satisfactory
to Administrative Agent.
"Highest Lawful Rate" means the maximum lawful interest rate, if any, that at
any time or from time to time may be contracted for, charged, or received under the laws
applicable to any Lender which are presently in effect or, to the extent allowed by law, under
such applicable laws which may hereafter be in effect and which allow a higher maximum
nonusurious interest rate than applicable laws now allow.
"Historical Financial Statements" means as of the Closing Date, (i) the audited
financial statements of Holdings and its Subsidiaries, for the Fiscal Years ended December 31,
2003, December 31, 2004 and December 31, 2005, consisting of balance sheets and the related
consolidated statements of income, stockholders' equity and cash flows for such Fiscal Years, (ii)
the unaudited financial statements of Holdings and its Subsidiaries as at the most recent Fiscal
Quarter ending 45 days or more prior to the Closing Date, consisting of a balance sheet and the
related consolidated statements of income, stockholders' equity and cash flows for the twelve
month period, ending on such date, and (ii) the unaudited financial statements of Holdings and
its Subsidiaries as at the most recent calendar month ending 45 days or more prior to the Closing
Date, consisting of a balance sheet and the related consolidated statements of income,
stockholders' equity and cash flows for such month and, in the case of clauses (i), (ii) and (iii),
certified by the chief financial officer of Holdings that they fairly present, in all material respects,
the financial condition of Holdings and its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods indicated, subject to changes resulting from
audit and normal year-end adjustments.
"Holdings" as defined in the preamble hereto.
"Inactive Subsidiary" means any Subsidiary of Holdings that has (i) no assets
other than de minimus assets not exceeding $250,000, (ii) no revenues and (iii) no income.
"Increased-Cost Lenders" as defined in Section 2.23.
24
"Indebtedness", as applied to any Person, means, without duplication, (i) all
indebtedness for borrowed money; (ii) that portion of obligations with respect to Capital Leases
that is properly classified as a liability on a balance sheet in conformity with GAAP; (iii) notes
payable and bankers acceptances; (iv) any obligation owed for all or any part of the deferred
purchase price of property or services (excluding any such obligations incurred under ERISA),
which purchase price is (a) due more than six months from the date of incurrence of the
obligation in respect thereof or (b) evidenced by a note or similar written instrument; (v) all
indebtedness secured by any Lien on any property or asset owned or held by that Person (other
than a Lien on leased property (real or personal) granted by the landlord or lessor thereof)
regardless of whether the indebtedness secured thereby shall have been assumed by that Person
or is nonrecourse to the credit of that Person; (vi) the face amount of any letter of credit issued
for the account of that Person or as to which that Person is otherwise liable for reimbursement of
drawings; (vii) Disqualified Equity Interests, (viii) the direct or indirect guaranty, endorsement
(otherwise than for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the obligation which would be
Indebtedness of another; (ix) any obligation which would be Indebtedness of such Person the
primary purpose or intent of which is to provide assurance to an obligee that the obligation of the
obligor thereof will be paid or discharged, or any agreement relating thereto will be complied
with, or the holders thereof will be protected (in whole or in part) against loss in respect thereof;
(x) any liability of such Person for an obligation which would be Indebtedness of another
through any agreement (contingent or otherwise) (a) to purchase, repurchase or otherwise
acquire such obligation or any security therefor, or to provide funds for the payment or discharge
of such obligation (whether in the form of loans, advances, stock purchases, capital contributions
or otherwise) or (b) to maintain the solvency or any balance sheet item, level of income or
financial condition of another if, in the case of any agreement described under subclauses (a) or
(b) of this clause (x), the primary purpose or intent thereof is as described in clause (ix) above;
and (xi) all obligations which would be Indebtedness of such Person in respect of any exchange
traded or over the counter derivative transaction, including any Hedge Agreement, whether
entered into for hedging or speculative purposes; provided, in no event shall obligations under
any Hedge Agreement be deemed "Indebtedness" for any purpose under Section 6.7.
"Indemnified Liabilities" means, collectively, any and all liabilities, obligations,
losses, damages (including natural resource damages), penalties, claims (including
Environmental Claims), actions, judgments, suits, costs (including the costs of any investigation,
study, sampling, testing, abatement, cleanup, removal, remediation or other response action
necessary to remove, remediate, clean up or abate any Hazardous Materials Activity), expenses
and disbursements of any kind or nature whatsoever (including the reasonable fees and
disbursements of counsel for Indemnitees in connection with any investigative, administrative or
judicial proceeding or hearing commenced or threatened by any Person, whether or not any such
Indemnitee shall be designated as a party or a potential party thereto, and any fees or expenses
incurred by Indemnitees in enforcing this indemnity), whether direct, indirect or consequential
and whether based on any federal, state or foreign laws, statutes, rules or regulations (including
securities and commercial laws, statutes, rules or regulations and Environmental Laws), on
common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by,
or asserted against any such Indemnitee, in any manner relating to or arising out of (i) this
Agreement or the other Credit Documents or the transactions contemplated hereby or thereby
25
(including the Lenders' agreement to make Credit Extensions or Issuing Bank's agreement to
issue Letters of Credit or the use or intended use of the proceeds thereof, or any enforcement of
any of the Credit Documents (including any sale of, collection from, or other realization upon
any of the Collateral or the enforcement of the Guaranty)); (ii) the statements contained in the
commitment letter delivered by any Lender to Borrowers with respect to the transactions
contemplated by this Agreement; or (iii) any Environmental Claim or any Hazardous Materials
Activity relating to or arising from, directly or indirectly, any past or present activity, operation,
land ownership, or practice of Holdings or any of its Subsidiaries.
"Indemnitee" as defined in Section 10.3.
"Initial Mortgaged Property" as defined in Section 3.4(b)(i).
"Installment" as defined in Section 2.12.
"Intellectual Property" as defined in the Pledge and Security Agreement or the
Canadian Pledge and Security Agreement, as applicable.
"Intellectual Property Asset" means, at the time of determination, any interest
(fee, license or otherwise) then owned by any Credit Party in any Intellectual Property.
"Intellectual Property Security Agreements" has the meaning assigned to that
term in the Pledge and Security Agreement or the Canadian Pledge and Security Agreement, as
applicable.
"Intercompany Note" means a promissory note substantially in the form of
Exhibit L evidencing Indebtedness owed among the Credit Parties and their Subsidiaries.
"Intercreditor Agreement" means that certain Intercreditor Agreement, dated as
of the Restatement Date, among the Collateral Agent, Borrower, and the Second Lien Collateral
Agent.
"Interim DIP Order" means that certain Interim Order under 11 U.S.C.
105(a), 362, 363, and 364 and bankruptcy rules 2002, 4001, 6004, and 9014 (i) authorizing
Debtors to (a) obtain new secured post-petition financing to refinance existing post-petition
financing; (b) convert new post petition financing into exit financing; and (c) pay related fees
and expenses, and (ii) granting related relief entered by the Bankruptcy Court on March 26, 2007,
as amended, supplemented or otherwise modified by the Interim Supplemental DIP Order and
Final Supplemental DIP Order.
26
"Interim Supplemental DIP Order" means an order (in substantially the form of
Exhibit M and otherwise in form and substance satisfactory to Syndication Agent and
Administrative Agent) of the Bankruptcy Court pursuant to Section 364 of the Bankruptcy Code
entered after an interim hearing approving this Agreement and the other Credit Documents, as to
which no stay has been entered and which has not been reversed, vacated or overturned, and
from which no appeal or motion to reconsider has been timely filed, or if timely filed, such
appeal or motion to reconsider has been dismissed or denied unless Syndication Agent and
Administrative Agent waive such requirement, and which has not been amended, supplemented
or otherwise modified in any respect adverse to the Lenders without the prior written consent of
Syndication Agent and Administrative Agent.
"Interim Supplemental DIP Order" means an order (in substantially the form of
Exhibit M and otherwise in form and substance satisfactory to Syndication Agent and
Administrative Agent) of the Bankruptcy Court pursuant to Section 364 of the Bankruptcy Code
entered after an interim hearing approving this Agreement and the other Credit Documents, as to
which no stay has been entered and which has not been reversed, vacated or overturned, and
from which no appeal or motion to reconsider has been timely filed, or if timely filed, such
appeal or motion to reconsider has been dismissed or denied unless Syndication Agent and
Administrative Agent waive such requirement, and which has not been amended, supplemented
or otherwise modified in any respect adverse to the Lenders without the prior written consent of
Syndication Agent and Administrative Agent.
"Interest Coverage Ratio" means the ratio as of the last day of any Fiscal
Quarter of (i) Consolidated Adjusted EBITDA for the four Fiscal Quarter period then ended to (ii)
Consolidated Interest Expense for such four Fiscal Quarter period; provided that for any
calculation of the Interest Coverage Ratio prior to April 1, 2008, Consolidated Interest Expense
shall be (x) Consolidated Interest Expense for the period from April 1, 2007 through the end of
the Fiscal Quarter for which the Interest Coverage Ratio is being calculated divided by (y) the
number of months included in the calculation made under clause (x) and multiplied by (z) twelve
(12); provided further that for purposes of this definition, Consolidated Interest Expense shall
exclude any upfront fees and ancillary costs incurred in connection with the transactions
contemplated hereunder and any amortization thereof and any amortization or write down of fees
relating to the financings being refinanced as part of the transactions contemplated hereunder.
"Interest Payment Date" means with respect to (i) any Loan that is a Base Rate
Loan, each February 1, May 1, August 1 and November 1 of each year, commencing on the first
such date to occur after the Closing Date and the final maturity date of such Loan; and (ii) any
Loan that is a Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan;
provided, in the case of each Interest Period of longer than three months "Interest Payment Date"
shall also include each date that is three months, or an integral multiple thereof, after the
commencement of such Interest Period.
"Interest Period" means, in connection with a Eurodollar Rate Loan, an interest
period of one-, two-, three- or six-months, as selected by Borrowers in the applicable Funding
27
Notice or Conversion/Continuation Notice, (i) initially, commencing on the Credit Date or
Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter, commencing on
the day on which the immediately preceding Interest Period expires; provided, (a) if an Interest
Period would otherwise expire on a day that is not a Business Day, such Interest Period shall
expire on the next succeeding Business Day unless no further Business Day occurs in such
month, in which case such Interest Period shall expire on the immediately preceding Business
Day; (b) any Interest Period that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clauses (c) and (d), of this definition, end on the last Business
Day of a calendar month; (c) no Interest Period with respect to any portion of the Term Loans
shall extend beyond the Maturity Date; and (d) no Interest Period with respect to any portion of
the Revolving Loans shall extend beyond the Revolving Commitment Termination Date.
"Interest Rate Agreement" means any interest rate swap agreement, interest rate
cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar
agreement or arrangement, each of which is for the purpose of hedging the interest rate exposure
associated with Holdings' and its Subsidiaries' operations and not for speculative purposes.
"Interest Rate Determination Date" means, with respect to any Interest Period,
the date that is two Business Days prior to the first day of such Interest Period.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
to the date hereof and from time to time hereafter, and any successor statute.
"Investment" means (i) any direct or indirect purchase or other acquisition by
Holdings or any of its Subsidiaries of, or of a beneficial interest in, any of the Securities of any
other Person (other than a Guarantor Subsidiary); (ii) any direct or indirect redemption,
retirement, purchase or other acquisition for value, by any Subsidiary of Holdings from any
Person (other than Holdings or any Guarantor Subsidiary), of any Equity Interests of such Person;
and (iii) any direct or indirect loan, advance (other than advances to employees for moving,
entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary
course of business) or capital contributions by Holdings or any of its Subsidiaries to any other
Person (other than Holdings or any Guarantor Subsidiary), including all indebtedness and
accounts receivable from that other Person that are not current assets or did not arise from sales
to that other Person in the ordinary course of business. The amount of any Investment shall be
the original cost of such Investment plus the cost of all additions thereto, without any
adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment.
"Issuance Notice" means an Issuance Notice substantially m the form of
Exhibit A-3.
28
"Issuing Bank" means JPMorgan Chase Bank N.A. or a bank or other legally
authorized Person selected by or acceptable to Administrative Agent in its sole discretion and
guaranteed by Administrative Agent.
"Joint Venture" means a joint venture, partnership or other similar arrangement,
whether in corporate, partnership or other legal form; provided, in no event shall any corporate
Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.
"Landlord Consent and Estoppel" means, with respect to any Leasehold
Property, a letter, certificate or other instrument in writing from the lessor under the related lease,
pursuant to which, among other things, the landlord consents to the granting of a Mortgage on
such Leasehold Property by the Credit Party tenant, such Landlord Consent and Estoppel to be in
form and substance acceptable to Collateral Agent in its reasonable discretion, but in any event
sufficient for Collateral Agent to obtain a Title Policy with respect to such Mortgage.
"Landlord Personal Property Collateral Access Agreement" means a Landlord
Waiver and Consent Agreement substantially in the form of Exhibit K with such amendments or
modifications as may be approved by Collateral Agent.
"LC Commitment" means the commitment of a Lender to make LC Deposits
hereunder and "LC Commitments" means such commitments of all Lenders. The amount of
each Lender's LC Commitment, if any, is set forth on Appendix A-2 or in the applicable
Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and
conditions hereof. The aggregate amount of the LC Commitments as of the Closing Date is
$50,000,000.
"LC Commitment Period" means the period from the Closing Date to but
excluding the LC Commitment Termination Date.
"LC Commitment Termination Date" means the earliest to occur of (i) April 13,
2007, if the initial Term Loans are not made on or before that date, (ii) September 30, 2007,
which date shaH at the option of Holdings and upon satisfaction of the conditions set forth in
Section 3.4, be deemed extended to the fifth anniversary of the Exit Facilities Conversion Date,
(iii) the date the LC Commitments are permanently reduced to zero pursuant to Section 2.13(b),
and (iv) the date ofthe termination ofthe LC Commitments pursuant to Section 8.1.
"LC Deposit" means, with respect to each LC Lender, the amount of such LC
Lender's LC Commitment that such LC Lender shall deposit in such LC Lender's Sub-Account
with Administrative Agent on or after the Closing Date, and that amount shall in tum be
deposited by Administrative Agent in the LC Deposit Account, as such amount may be (a)
reduced or reinstated from time to time as a result ofwithdrawals from the LC Deposit Account
29
debited by Administrative Agent from and payments to the LC Deposit Account credited by
Administrative Agent to the Sub-Account of such LC Lender pursuant to Section 2.4, and (b)
reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to
Section 10.6 and, "LC Deposits" mean such deposits of all LC Lenders.
"LC Deposit Account" as defined in Section 2.4(i).
"LC Deposit Return" shall mean the amount earned and received by the
Administrative Agent from time to time on the investment of the amounts held in the LC Deposit
Account in accordance with Section 2.4(m).
"LC Depositary Bank" shall mean the Issuing Bank or such other commercial
bank or its affiliates organized under the laws of the United States, or any state thereof or the
District of Columbia that (a) is at least "adequately capitalized" (as defined in the regulations of
its primary Federal banking regulator) and (b) has Tier 1 capital (as defined in such regulations)
ofnot less than $100,000,000.
"LC Disbursement" means a payment made by Issuing Bank pursuant to a Letter
of Credit.
"LC Exposure" means, with respect to any Lender, as of any date of
determination, such Lender's Pro Rata Share of the aggregate LC Deposits and LC Usage (other
than the portion of such LC Usage represented by amounts available for drawing, but not yet
drawn, under Letters of Credit).
"LC Lender" means a Lender having an interest in the LC Deposit Account or an
LC Commitment.
"LC Usage" means, as of any date of determination, the sum of (i) the maximum
aggregate amount which is, or at any time thereafter may become, available for drawing under
all Letters of Credit then outstanding, and (ii) the aggregate amount of all LC Disbursements not
theretofore reimbursed by or on behalf of Borrowers.
"Leasehold Property" means any leasehold interest of any Credit Party as lessee
under any lease of real property, other than any such leasehold interest designated from time to
time by Collateral Agent in its sole discretion as not being required to be included in the
Collateral.
"Lender" means each financial institution listed on the signature pages hereto as a
Lender, and any other Person that becomes a party hereto pursuant to an Assignment Agreement.
30
"Lender Counterparty" means each Lender or any Affiliate of a Lender
counterparty to a Hedge Agreement (including any Person who is a Lender (and any Affiliate
thereof) as of the Closing Date but subsequently, whether before or after entering into a Hedge
Agreement, ceases to be a Lender and any Person who enters into a Hedge Agreement in
connection with the transactions contemplated by the Credit Documents prior to the Closing
Date and is a Lender as of the Closing Date), including each such Affiliate that enters into a
joinder agreement with Collateral Agent.
"Letter of Credit" means a commercial or standby letter of credit issued or to be
issued by Issuing Bank pursuant to this Agreement.
"Leverage Ratio" means the ratio as of the last day of any Fiscal Quarter of
(i) Consolidated Total Debt as of such day to (ii) Consolidated Adjusted EBITDA for the four-
Fiscal Quarter period ending on such date.
"Lien" means (i) any lien, mortgage, pledge, assignment, security interest,
hypothec, deemed trust, charge or encumbrance of any kind (including any agreement to give
any of the foregoing, any conditional sale or other title retention agreement, and any lease or
license in the nature thereof) and any option, trust or other preferential arrangement having the
practical effect of any of the foregoing and (ii) in the case of Securities, any purchase option, call
or similar right of a third party with respect to such Securities.
"Loan" means a Term Loan and a Revolving Loan.
"Management Agreement" means any management agreement entered into on or
after the Exit Facilities Conversion Date between the Sponsor or any of its Controlled Investment
Affiliates and Holdings reasonably acceptable to Administrative Agent.
"Margin Stock" as defined in Regulation U of the Board of Governors as in
effect from time to time.
"Material Adverse Effect" means (i) a material adverse effect on and/or material
adverse developments with respect to the business, operations, properties, assets or condition
(financial or otherwise) of Holdings and its Subsidiaries taken as a whole; (ii) a material
impairment of the ability of Credit Parties to fully and timely perform their Obligations; (iii) a
material adverse effect on and/or material adverse developments with respect to the legality,
validity, binding effect or enforceability against a Credit Party of a Credit Document to which it
is a party; or (iv) a material impairment of the rights, remedies and benefits available to, or
conferred upon, any Agent and any Lender or any Secured Party under any Credit Document.
31
"Material Contract" means (i) any contract or other arrangement between
Holdings or any of its Subsidiaries and their customers that represented 10% or more of the
Consolidated Net Income of Holdings and its Subsidiaries for the most recently ended Fiscal
Year and (ii) any collective bargaining agreement to which Holdings or any of its Subsidiaries is
a party.
"Material Real Estate Asset" means (i) any fee-owned Real Estate Asset having
a fair market value in excess of $1,500,000 (as reasonably determined by Borrowers) and (ii) all
Leasehold Properties other than those with respect to which the aggregate payments under the
term of the lease are less than $500,000 per annum.
"Maturity Date" means the earlier of (i) September 30, 2007, which date shall at
the option of Holdings and upon satisfaction or waiver of the conditions set forth in Section 3.4,
be deemed extended to the fifth anniversary of the Exit Facilities Conversion Date, (ii) the Plan
Effective Date, if the conditions set forth in Section 3.4 have not been satisfied or waived on or
prior to such date and (iii) the date that all Loans shall become due and payable in full hereunder,
whether by acceleration or otherwise.
"Moody's" means Moody's Investor Services, Inc.
"Mortgage" means a Mortgage substantially in the form of Exhibit J, as it may be
amended, supplemented or otherwise modified from time to time, with respect to real property
located in the United States, and a mortgage or charge under applicable provincial law as may be
required by Collateral Agent, in form and substance satisfactory to Collateral Agent, in order to
grant a First Priority Lien in favor of Collateral Agent for the benefit of the Secured Parties in
real property in which any Canadian Credit Party may have an interest and which is located in a
province of Canada, including, without limitation, applicable Quebec Security, in each case, as it
may be amended, supplemented or otherwise modified from time to time.
"Multiemployer Plan" means in respect of any Credit Party other than a
Canadian Credit Party, any Employee Benefit Plan which is a "multiemployer plan" as defined in
Section 3(37) of ERISA and in respect of any Canadian Credit Party, any "multiemployer
pension plan" as defined in subsection 1(1) of the Pension Benefits Act (Ontario) or section 2 of
the Pensions Benefits Standard Act, 1985 (Canada).
"NAIC" means The National Association of Insurance Commissioners, and any
successor thereto.
"Narrative Report" means, with respect to the financial statements for which
such narrative report is required, a narrative report describing the operations of Holdings and its
Subsidiaries in the form prepared for presentation to senior management thereof for the
32
applicable Fiscal Quarter or Fiscal Year and for the period from the beginning of the then current
Fiscal Year to the end of such period to which such financial statements relate.
"Net Asset Sale Proceeds" means, with respect to any Asset Sale, an amount
equal to: (i) Cash payments (including any Cash received by way of deferred payment pursuant
to, or by monetization of, a note receivable or otherwise, but only as and when so received)
received by Holdings or any of its Subsidiaries from such Asset Sale, minus (ii) any bona fide
direct costs incurred in connection with such Asset Sale, including (a) income or gains taxes
payable by the seller as a result of any gain recognized in connection with such Asset Sale, (b)
payment of the outstanding principal amount of, premium or penalty, if any, and interest on any
Indebtedness (other than the Loans) that is secured by a Lien on the stock or assets in question
and that is required to be repaid under the terms thereof as a result of such Asset Sale and (c) a
reasonable reserve for any indemnification payments (fixed or contingent) attributable to seller's
indemnities and representations and warranties to purchaser in respect of such Asset Sale
undertaken by Holdings or any of its Subsidiaries in connection with such Asset Sale.
"Net Cash Proceeds" means, (i) with respect to any Asset Sale, the Net Asset
Sale Proceeds and (ii) with respect to any Recovery Event, the Net Insurance/Condemnation
Proceeds.
"Net Insurance/Condemnation Proceeds" means, with respect to any Recovery
Event, an amount equal to: (i) any Cash payments or proceeds received by Holdings or any of its
Subsidiaries in connection with a Recovery Event, minus (ii) (a) any actual and reasonable costs
incurred by Holdings or any of its Subsidiaries in connection with the adjustment or settlement
of any claims of Holdings or such Subsidiary in respect of such Recovery Event, and (b) any
bona fide direct costs incurred in connection with any sale of such assets as referred to in clause
(ii) of the definition of Recovery Event, including income taxes payable as a result of any gain
recognized in connection therewith.
"Nonpublic Information" means information which has not been disseminated in
a manner making it available to investors generally, within the meaning of Regulation FD.
"Non-US Lender" as defined in Section 2.20(c).
"Note" means a Term Loan Note, a Revolving Loan Note or a Swing Line Note.
"Notice" means a Funding Notice, an Issuance Notice, or a Conversion/
Continuation Notice.
"Obligations" means all obligations of every nature of each Credit Party,
including obligations from time to time owed to the Agents (including former Agents), the
33
Lenders or any of them and Lender Counterpartics, under any Credit Document or Hedge
Agreement with any Credit Party, whether for principal, interest (including interest which, but
for the filing of a petition in bankruptcy with respect to such Credit Party, would have accrued on
any Obligation, whether or not a claim is allowed against such Credit Party for such interest in
the related bank_nJptcy proceeding), reimbursement of amounts drawn under Letters of Credit,
payments for early termination of Hedge Agreements, fees, expenses, indemnification or
otherwise.
"Obligee Guarantor" as defined in Section 7.7.
"Organizational Documents" means (i) with respect to any corporation, its
certificate or articles of incorporation, amalgamation or organization, as amended, and its by-
laws, as amended, (ii) with respect to any limited partnership, its certificate or declaration of
limited partnership, as amended, and its partnership agreement, as amended, (iii) with respect to
any general partnership, its partnership agreement, as amended, (iv) with respect to any limited
liability company, its articles of organization, as amended, and its operating agreement, as
amended, and (v) with respect to an unlimited liability company, its memorandum and articles of
association. In the event any term or condition of this Agreement or any other Credit Document
requires any Organizational Document to be certified by a secretary of state or similar
governmental official, the reference to any such "Organizational Document" shall only be to a
document of a type customarily certified by such governmental official.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"Pension Plan" means, in respect of any Credit Party other than any Canadian
Credit Party, any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to
Section 412 of the Internal Revenue Code or Section 302 of ERISA and in respect of any
Canadian Credit Party, each pension, supplementary pension, retirement savings or other
retirement income plan or arrangement of any kind, registered or non-registered, established,
maintained or contributed to by such Canadian Credit Party for its employees or former
employees, but does not include a Multiemployer Plan or the Canada Pension Plan or the Quebec
Pension Plan that is maintained by the Government of Canada or the Province of Quebec,
respectively.
"Permitted Acquisition" means any acquisition by Holdings or any of its wholly-
owned Subsidiaries after the Exit Facilities Conversion Date, whether by purchase, merger or
otherwise, of all or substantially all of the assets of, all of the Equity Interests of, or a business
line or unit or a division of, any Person; provided,
34
(i) immediately prior to, and after giving effect thereto, no Default or Event
of Default shall have occurred and be continuing or would result
therefrom;
(ii) all transactions in connection therewith shall be consummated, in all
material respects, in accordance with all applicable laws and in conformity,
in all material respects, with all applicable Governmental Authorizations;
(iii) in the case of the acquisition of Equity Interests, all of the Equity Interests
(except for any such Securities in the nature of directors' qualifying shares
required pursuant to applicable law) acquired or otherwise issued by such
Person or any newly formed Subsidiary of Holdings in connection with
such acquisition shall be directly or indirectly owned 100% by Holdings
or a Guarantor Subsidiary thereof, and Holdings shall have taken, or
caused to be taken, as of the date such Person becomes a Subsidiary of
Holdings, each of the actions set forth in Sections 5.10 and/or 5.11, as
applicable;
(iv) the Interest Coverage Ratio on a pro forma basis after giving effect to such
acquisition as of the last day of the Fiscal Quarter most recently ended for
which financial statements have been delivered pursuant to Section 5 .I (b)
or (c) (as determined in accordance with Section 6.7(e)) shall be no less
than the correlative ratio indicated:

June 30, 2007 1.60:1.00
September 30, 2007 1.80:1.00
December 31, 2007 2.00:1.00
March 31, 2008 2.25:1.00
June 30, 2008 2.50:1.00
September 30, 2008 2.75:1.00
December 31, 2008 2.75:1.00
March 31, 2009 2.75:1.00
June 30, 2009 3.00:1.00
September 30, 2009 3.00:1.00
December 31, 2009 3.00:1.00
March 31,2010 3.00:1.00
June 30, 2010 3.00:1.00
35
December 31, 2010
< {){). 1 {){)
.J.VV.l.VV
Thereafter 3.50:1.00
(v) the Leverage Ratio on a pro forma basis after giving effect to such
acquisition as of the last day of the Fiscal Quarter most recently ended for
which financial statements have been delivered pursuant to Section 5.1(b)
or (c) (as determined in accordance with Section 6.7(e)) shall be no greater
than the correlative ratio indicated:

June 30, 2007 6.50:1.00
September 30, 2007 5.50:1.00
December 31, 2007 4.75:1.00
March 31, 2008 4.25:1.00
June 30, 2008 3.25:1.00
September 30, 2008 3.25:1.00
December 31,2008 3.25:1.00
March 31, 2009 3.00:1.00
June 30, 2009 3.00:1.00
September 30, 2009 3.00:1.00
December 31, 2009 3.00:1.00
March 31,2010 3.00:1.00
June 30, 2010 3.00:1.00
September 30,2010 3.00:1.00
December 31,2010 3.00:1.00
Thereafter 2.50:1.00
(vi) Holdings and its Subsidiaries shall be in compliance with the financial
covenants set forth in Section 6. 7 on a pro forma basis after giving effect
to such acquisition as of the last day of the Fiscal Quarter most recently
ended for which financial statements have been delivered pursuant to
Section 5.1(b) or (c) (as determined in accordance with Section 6.7(e));
(vii) for any proposed acquisition in excess of $5,000,000, Holdings shall have
delivered to Administrative Agent (A) at least 10 Business Days prior to
36
such proposed acqmsitlon, (i) a Compliance Certificate evidencing
compliance with Section 6.7 as required under clause (vi) above and (ii)
all other relevant financial information with respect to such acquired assets,
including the aggregate consideration for such acquisition and any other
information required to demonstrate compliance with Section 6.7 and (B)
promptly upon request by Administrative Agent, (i) a copy of the purchase
agreement related to the proposed Permitted Acquisition (and any related
documents reasonably requested by Administrative Agent) and (ii)
quarterly and annual financial statements of the Person whose Equity
Interests or assets are being acquired for the twelve month (12) month
period immediately prior to such proposed Permitted Acquisition,
including any audited financial statements that are available;
(viii) any Person or assets or division as acquired in accordance herewith (y)
shall be in same business or lines ofbusiness in which Holdings and/or its
Subsidiaries are engaged as of the Closing Date and (z) shall have
generated positive free cash flow (excluding capital expenditures) for the
four quarter period most recently ended prior to the date of such
acquisition;
(ix) an Authorized Officer of Holdings shall certify that Holdings reasonably
believes that, after giving effect to the Permitted Acquisition, Holdings
and its Subsidiaries shall remain in compliance with Section 6.7(c);
(x) during the 30 day period prior to the date of such proposed acquisition, the
excess of (x) the aggregate Revolving Commitments over (y) the Total
Utilization of the Revolving Commitments shall be no less than
$20,000,000 for at least 5 consecutive Business Days at any time during
such period; and
(xi) the aggregate unused portion of the Revolving Commitments at such time
(after giving effect to the consummation of the respective Permitted
Acquisition and any financing thereof) shall equal or exceed $20,000,000.
"Permitted Liens" means each of the Liens permitted pursuant to Section 6.2.
"Person" means and includes natural persons, corporations, limited partnerships,
general partnerships, limited liability companies, unlimited liability companies, limited liability
partnerships, joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts or other organizations, whether or not legal entities, and
Governmental Authorities.
37
"Petition Date" has the meaning specified in the recitals to this Agreement.
"Plan" means the Chapter 11 plan of reorganization with respect to the Debtors
confirmed by the Bankruptcy Court.
"Plan Effective Date" means the Effective Date as defined in the Plan.
"Planned Asset Sales" means the Asset Sales identified on Schedule 6.8(a).
"Platform" as defined in Section 5.1(q).
"Pledge and Security Agreement" means the Amended and Restated Pledge and
Security Agreement, dated as of the Restatement Date, by Borrowers and each Guarantor
substantially in the form of Exhibit I, as it may be amended, supplemented or otherwise modified
from time to time.
"Prepetition Indebtedness" means all Indebtedness of any of Borrowers and
their Subsidiaries outstanding on the Petition Date immediately prior to the filing of the Cases.
"Prime Rate" means the rate of interest quoted in The Wall Street Journal,
Money Rates Section as the Prime Rate (currently defined as the base rate on corporate loans
posted by at least 75% of the nation's thirty (30) largest banks), as in effect from time to time.
The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. Agent or any other Lender may make commercial loans or
other loans at rates of interest at, above or below the Prime Rate.
"Principal Office" means, for each of Administrative Agent, Swing Line Lender
and Issuing Bank, such Person's "Principal Office" as set forth on Appendix B, or such other
office or office of a third party or sub-agent, as appropriate, as such Person may from time to
time designate in writing to Borrowers, Administrative Agent and each Lender.
"Projections" as defined in Section 4.8.
"Pro Rata Share" means (i) with respect to all payments, computations and other
matters relating to the Term Loan of any Lender, the percentage obtained by dividing (a) the
Term Loan Exposure of that Lender by (b) the aggregate Term Loan Exposure of all Lenders;
(ii) with respect to all payments, computations and other matters relating to the participations in
Letters of Credit, the LC Deposits or the LC Disbursements, the percentage obtained by dividing
(a) the LC Exposure of such Lender by (b) the aggregate LC Exposure of all Lenders; (iii) with
38
respect to all payments, computations and other matters relating to the Revolving Commitment
or Revolving Loans of any Lender or participations in Swing Line Loans purchased therein by
any Lender the percentage obtained by dividing (a) the Revolving Exposure of such Lender by (b)
the aggregate Revolving Exposure of all Lenders. For all other purposes with respect to each
Lender, "Pro Rata Share" means the percentage obtained by dividing (A) an amount equal to the
sum of the Term Loan Exposure, the LC Exposure and the Revolving Exposure of that Lender,
by (B) an amount equal to the sum of the aggregate Term Loan Exposure, the aggregate LC
Exposure and the aggregate Revolving Exposure of all Lenders.
"Public Information" means information which has been disseminated m a
manner making it available to investors generally, within the meaning of Regulation FD.
"Qualified Public Offering" shall mean an underwritten public offering of
common stock of Holdings to the extent that net proceeds received by Holdings are contributed
to the equity capital of Holdings pursuant to an effective registration statement filed with the
Securities and Exchange Commission in accordance with the Securities Act that results in at least
$50,000,000 of net cash proceeds to Holdings and results in the listing of the common stock of
Holdings on a national securities exchange or the NASDAQ National Market quotation system.
"Quebec Security" means one or more demand debentures, pledges of debenture
and deeds of hypothec, as may be required by Collateral Agent in order to grant a First Priority
Lien in favor of Collateral Agent for the benefit of the Secured Parties in property or assets in
which any Canadian Credit Party may have an interest and which is located in the Province of
Quebec, in each case, in form and substance satisfactory to Collateral Agent and as may be
amended, supplemented or otherwise modified from time to time.
"Real Estate Asset" means, at any time of determination, any interest (fee,
leasehold or otherwise) then owned by any Credit Party in any real property.
"Record Document" means, with respect to any Leasehold Property, (i) the lease
evidencing such Leasehold Property or a memorandum thereof, executed and acknowledged by
the owner of the affected real property, as lessor, or (ii) if such Leasehold Property was acquired
or subleased from the holder of a Recorded Leasehold Interest, the applicable assignment or
sublease document, executed and acknowledged by such holder, in each case in form sufficient
to give such constructive notice upon recordation and otherwise in form reasonably satisfactory
to Collateral Agent.
"Recorded Leasehold Interest" means a Leasehold Property with respect to
which a Record Document has been recorded in all places necessary or desirable, in Collateral
Agent's reasonable judgment, to give constructive notice of such Leasehold Property to third-
party purchasers and encumbrancers of the affected real property.
39
"Recovery Event" means (i) any settlement of or payment in respect of any
property or casualty insurance claim in respect of a covered loss thereunder or (ii) as a result of
the taking of any assets of Holdings or any of its Subsidiaries by any Person pursuant to the
power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to
a purchaser with such power under tr.reat of such a taking.
"Refunded Swing Line Loans" as defined in Section 2.3(b)(iv).
"Register" as defined in Section 2. 7(b ).
"Regulation D" means Regulation D of the Board of Governors, as in effect from
time to time.
"Regulation FD" means Regulation FD as promulgated by the US Securities and
Exchange Commission under the Securities Act and Exchange Act as in effect from time to time.
"Reimbursement Date" as defined in Section 2.4(d).
"Reinvestment Deferred Amount" means, with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by Holdings or its Subsidiaries in connection
therewith that are not applied pursuant to Section 2.15(b) as a result of the delivery of a
Reinvestment Notice.
"Reinvestment Event" means any Asset Sale or Recovery Event in respect of
which Holdings has delivered a Reinvestment Notice.
"Reinvestment Notice" means a written notice executed by an Authorized
Officer (i) stating that Holdings (directly or indirectly through a Subsidiary) intends and expects
to use all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery Event to
repair or replace the assets which were the subject of such Asset Saie or Recovery Event or to
acquire or improve Useful Assets and (ii) certifying that no Default or Event of Default shall
have occurred and be continuing at such time.
"Reinvestment Prepayment Amount" means, with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount expended prior to the
relevant Reinvestment Prepayment Date to repair or replace the assets which were the subjt:ct of
the relevant Asset Sale or Recovery Event or to acquire or improve Useful Assets.
40
"Reinvestment Prepayment Date" means, with respect to any Reinvestment
Event, the earlier of (i) the date occurring 270 days after such Reinvestment Event or if Holdings
or its Subsidiaries enter into a legally binding commitment to reinvest the relevant Reinvestment
Deferred Amount within 270 days after such Reinvestment Event, the date occurring 450 days
after such Reinvestment Event and (ii) the date on which Holdings or its Subsidiaries shall have
determined not to use all or any portion of the relevant Reinvestment Deferred Amount to repair
or replace the assets which were the subject of the relevant Asset Sale or Recovery Event or to
acquire or improve Useful Assets, but in the case of this clause (ii) only with respect to the
portion of the applicable Reinvestment Deferred Amount as to which such determination has
been made.
"Related Fund" means, with respect to any Lender that is an investment fund,
any other investment fund that invests in commercial loans and that is managed or advised by the
same investment advisor as such Lender or by an Affiliate of such investment advisor.
"Release" means any release, spill, emission, leaking, pumping, pouring, injection,
escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any
Hazardous Material into the indoor or outdoor environment (including the abandonment or
disposal of any barrels, containers or other closed receptacles containing any Hazardous
Material), including the movement of any Hazardous Material through the air, soil, surface water
or groundwater.
"Replacement I.ender" as defined in Section 2.23.
"Requisite }_,enders" means one or more Lenders having or holding Term Loan
Exposure, LC Exposure and/or Revolving Exposure and representing more than 50% of the sum
of (i) the aggregate Term Loan Exposure of all Lenders, (ii) the aggregate LC Exposure of all
Lenders and (iii) the aggregate Revolving Exposure of all Lenders.
"Restatement Date" means May 15, 2007.
"Restricted Junior Payment" means (i) any dividend or other distribution, direct
or indirect, on account of any shares of any class of stock of Holdings now or hereafter
outstanding, except a dividend payable solely in shares of that class of stock to the holders of that
class; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class of stock of Holdings now or
hereafter outstanding; (iii) any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any class of stock of Holdings
now or hereafter outstanding; (iv) management or similar fees payable to Sponsor or any of its
Affiliates and (v) any payment or prepayment of principal of, premium, if any, or interest on, or
redemption, purchase, retirement, defeasance (including in-substance or legal defeasance),
sinking fund or similar payment with respect to the Indebtedness outstanding under the Second
41
Lien Credit Agreement or any Indebtedness which is subordinated in right of payment to the
Obligations (other than the conversion of any of such Indebtedness to common Equity Interests
of Holdings).
"Revolving Commitment" means the commitment of a Lender to make or
otherwise fund any Revolving Loan and to acquire participations in Swing Line Loans hereunder
and "Revolving Commitments" means such commitments of all Lenders in the aggregate. The
amount of each Lender's Revolving Commitment, if any, is set forth on Appendix A-3 or in the
applicable Assignment Agreement, subject to any adjustment or reduction pursuant to the terms
and conditions hereof. The aggregate amount of the Revolving Commitments as of the Closing
Date is $35,000,000.
"Revolving Commitment Period" means the period from the Closing Date to but
excluding the Revolving Commitment Termination Date.
"Revolving Commitment Termination Date" means the earliest to occur of
(i) April 13, 2007, if the initial Term Loans are not made on or before that date; (ii) September
30, 2007, which date shall at the option of Holdings and upon satisfaction of the conditions set
forth in Section 3.4, be deemed extended to the fifth anniversary of the Exit Facilities
Conversion Date, (iii) the date the Revolving Commitments are permanently reduced to zero
pursuant to Section 2.13(b ), and (iv) the date of the termination of the Revolving Commitments
pursuant to Section 8.1.
"Revolving Exposure" means, with respect to any Lender as of any date of
determination, (i) prior to the termination of the Revolving Commitments, that Lender's
Revolving Commitment; and (ii) after the termination of the Revolving Commitments, the sum
of (a) the aggregate outstanding principal amount of the Revolving Loans of that Lender, (b) in
the case of Swing Line Lender, the aggregate outstanding principal amount of all Swing Line
Loans (net of any participations therein by other Lenders), and (c) the aggregate amount of all
participations therein by that Lender in any outstanding Swing Line Loans.
"Revolving Loan" means a loan made by a Lender to Borrowers pursuant to
Section 2.2(a).
"Revolving Loan Note" means a promissory note in the form of Exhibit B-2, as it
may be amended, supplemented or otherwise modified from time to time.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw Hill
Corporation.
42
"Second Lien Collateral Agent" means the collateral agent under the Second
Lien Credit Agreement.
"Second Lien Credit Agreement" means the Second Lien Secured Super-
Priority Debtor in Possession and Exit Credit and Guaranty Agreement, dated as of the
Restatement Date, by and among GSCP as sole lead arranger, sole book runner and sole
syndication agent and the other agents and lenders party thereto, as such may be amended,
supplemented or otherwise modified from time to time in accordance with this Agreement.
"Second Lien Credit Documents" shall mean the "Credit Documents" as defined
in the Second Lien Credit Agreement.
"Second Lien Term Loans" means term loans in an aggregate principal amount
of$50,000,000 made on the Restatement Date under the Second Lien Credit Agreement.
"Secured Parties" has the meaning assigned to that term in the Pledge and
Security Agreement and the Canadian Pledge and Security Agreement, as applicable.
"Securities" means any stock, shares, partnership interests, voting trust
certificates, certificates of interest or participation in any profit-sharing agreement or
arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness,
secured or unsecured, convertible, subordinated or otherwise, or in general any instruments
commonly known as "securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended from time to time,
and any successor statute.
"Solvency Certificate" means a Solvency Certificate ofthe chief financial officer
ofHoldings substantially in the form of Exhibit G-2.
"Solvent" means, with respect to the Credit Parties, that as of the date of
determination, both (i) (a) the sum of such Credit Parties' debt (including contingent liabilities)
does not exceed the present fair saleable value of the Credit Parties' present assets; (b) the Credit
Parties' capital is not unreasonably small in relation to their business; and (c) the Credit Parties
have not incurred and do not intend to incur, or believe (nor should they reasonably believe) that
they will incur, debts beyond their ability to pay such debts as they become due (whether at
maturity or otherwise); and (ii) the Credit Parties are "solvent" within the meaning given that
term and similar terms under the Bankruptcy Code and applicable laws relating to fraudulent
transfers and conveyances. For purposes of this definition, the amount of any contingent liability
43
at any time shall be computed as the amount that, in light of all of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an actual
or matured liability (irrespective of whether such contingent liabilities meet the criteria for
accrual under Statement ofFinancial Accounting Standard No.5).
"Spent Committed Capital Expenditures" as defined in Section 6.7(d).
"Sponsor" means, collectively, Yucaipa American Alliance Fund I, LP and
Yucaipa American Alliance (Parallel) Fund I, LP.
"Sub-Account" as defined in Section 2.4(i).
"Subject Transaction" as defined in Section 6.7(e).
"Subsidiary" means, with respect to any Person, any corporation, partnership,
limited liability company, unlimited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of stock or other
ownership interests entitled (without regard to the occurrence of any contingency) to vote in the
election of the Person or Persons (whether directors, managers, trustees or other Persons
performing similar functions) having the power to direct or cause the direction of the
management and policies thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided,
in determining the percentage of ownership interests of any Person controlled by another Person,
no ownership interest in the nature of a "qualifying share" of the former Person shall be deemed
to be outstanding.
"Swing Line Lender" means CIT in its capacity as Swing Line Lender hereunder,
together with its permitted successors and assigns in such capacity.
"Swing Line Loan" means a Loan made by Swing Line Lender to Borrowers
pursuant to Section 2.3.
"Swing Line Note" means a promissory note in the form of Exhibit B-3, as it may
be amended, supplemented or otherwise modified from time to time.
"Swing Line Sublimit" means the Jesser of (i) $10,000,000 and (ii) the aggregate
unused amount ofRevolving Commitments then in effect.
"Syndication Agent" as defined in the preamble hereto.
44
"Systems" as defined in the preamble hereto.
"Tax" means any present or future tax, levy, impost, duty, assessment, charge, fee,
deduction or withholding of any nature and whatever called, by whomsoever, on whomsoever
and wherever imposed, levied, collected, withheld or assessed; provided, "Tax on the overall net
income" of a Person shall be construed as a reference to a tax imposed by the jurisdiction in
which that Person is organized or in which that Person's applicable principal office (and/or, in
the case of a Lender, its lending office) is located or in which that Person (and/or, in the case of a
Lender, its lending office) is deemed to be doing business on all or part of the net income, profits
or gains (whether worldwide, or only insofar as such income, profits or gains are considered to
arise in or to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in the case of
a Lender, its applicable lending office).
"Term Loan" means a loan made by a Lender to Borrowers pursuant to Section
2.1(a).
"Term Loan Commitment" means the commitment of a Lender to make or
otherwise fund any Term Loan and "Term Loan Commitments" means such commitments of
all Lenders in the aggregate. The amount of each Lender's Term Loan Commitment, if any, is
set forth on Appendix A-1 or in the applicable Assignment Agreement, subject to any adjustment
or reduction pursuant to the terms and conditions hereof. The aggregate amount of the Term
Loan Commitments as ofthe Restatement Date is $180,000,000.
"Term Loan Commitment Period" means the period from the Closing Date to
but excluding the Term Loan Commitment Termination Date.
"Term Loan Commitment Termination Date" means the earliest to occur of
(i) April 13, 2007, if the initial Term Loans are not made on or before that date; (ii) September
30, 2007, which date shall at the option of Holdings and upon satisfaction of the conditions set
forth in Section 3.4, be deemed extended to March 30, 2008, (iii) the date the Term Loan
Commitments are permanently reduced to zero pursuant to Section 2.13(b), and (iv) the date of
the termination of the Term Loan Commitments pursuant to Section 8.1.
"Term Loan Exposure" means, with respect to any Lender, as of any date of
determination, the outstanding principal amount of the Term Loans of such Lender plus during
the Term Loan Commitment Period, the unfunded Term Loan Commitment of such Lender;
provided, at any time prior to the making of the initial Term Loans, the Term Loan Exposure of
any Lender shall be equal to such Lender's Term Loan Commitment.
45
"Term Loan Funding Period" means the period from the Closing Date to and
including the nth month anniversary of the Closing Date and, upon satisfaction of the conditions
set forth in Section 3.4, be deemed extended to the one year anniversary of the Closing Date.
"Term Loan Note" means a promissory note in the form of Exhibit B-1, as it may
be amended, supplemented or otherwise modified from time to time.
"Terminated Lender" as defined in Section 2.23.
"Title Policy" as defined in Section 3.4(b )(v).
"Total Utilization of Revolving Commitments" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding Revolving Loans
(other than Revolving Loans made for the purpose of repaying any Refunded Swing Line Loans,
but not yet so applied) and (ii) the aggregate principal amount of all outstanding Swing Line
Loans.
"Transaction Costs" means the fees, costs and expenses payable by Borrowers,
or any of Subsidiaries of Borrowers on or before the Closing Date in connection with the
transactions contemplated by the Credit Documents.
"Type of Loan" means (i) with respect to either Term Loans or Revolving Loans,
a Base Rate Loan or a Eurodollar Rate Loan, and (ii) with respect to Swing Line Loans, a Base
Rate Loan.
"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction.
"U.S. Lender" as defined in Section 2.20(c).
"Useful Assets" means, in the case of an Asset Sale, assets useful in the business
of Holdings and its Subsidiaries and, in the case of a Recovery Event, long term or otherwise
non-current productive assets of the general type used in the business of Holdings and its
Subsidiaries.
1.2 Accounting Terms. (a) Except as otherwise expressly provided herein, all
accounting terms not otherwise defined herein shall have the meanings assigned to them in
conformity with GAAP. Financial statements and other information required to be delivered by
Holdings to Lenders pursuant to Section 5.l(a), 5.l(b) and 5.l(c) shall be prepared in accordance
with GAAP as in effect at the time of such preparation (and delivered together with the
46
reconciliation statements provided for in Section 5.1(e), if applicable). Subject to the foregoing,
calculations in connection with the definitions, covenants and other provisions hereof shall
utilize accounting principles and policies in conformity with those used to prepare the Historical
Financial Statements.
(b) If at any time the adoption of fresh-start accounting would affect the
computation of any financial ratio or requirement set forth in this Agreement and either
Borrowers or the Requisite Lenders shall so request, Administrative Agent and Borrowers shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such adoption of fresh-start accounting (subject to the approval of the Requisite
Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be
computed in accordance with GAAP, as applicable, prior to such change therein and (ii)
Borrowers shall provide the reconciliation statements required by Section 5.l(e).
1.3 Interpretation, etc. Any of the terms defined herein may, unless the context
otherwise requires, be used in the singular or the plural, depending on the reference. References
herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a
Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided. The
use herein of the word "include" or "including", when following any general statement, term or
matter, shall not be construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or matters, whether or not
non-limiting language (such as "without limitation" or "but not limited to" or words of similar
import) is used with reference thereto, but rather shall be deemed to refer to all other items or
matters that fall within the broadest possible scope of such general statement, term or matter.
The terms lease and license shall include sub-lease and sub-license, as applicable.
SECTION 2. LOANS AND LETTERS OF CREDIT
2.1 Term Loans.
(a) Loan Commitments. Subject to the terms and conditions hereof, during
the Term Commitment Period, each Lender severally agrees to make Term Loans to Borrowers
in an aggregate amount up to but not exceeding such Lender's Term Loan Commitment;
provided that after giving effect to the making of any Term Loans in no event shall the amount of
Term Loans made hereunder exceed the Term Loan Commitments then in effect. Any amount
borrowed under this Section 2.1 (a) and subsequently repaid or prepaid may not be reborrowed.
For the avoidance of doubt, as of the Restatement Date the Term Loans have been fully funded
and the aggregate unfunded Term Loan Commitments equal $0. Subject to Sections 2.13(a) and
2.14, all amounts owed hereunder with respect to the Term Loans shall be paid in full no later
than the Maturity Date.
(b) Borrowing Mechanics for Term Loans.
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(i) Term Loans shall be made in an aggregate minimum amount of
$5,000,000 and integral multiples of$1,000,000 in excess ofthat amount
(ii) Whenever any Borrower desires that Lenders make a Terrn Loan,
such Borrower shall deliver to Administrative Agent a fully executed and delivered
Funding Notice no later than 11:00 a.m. (New York City time) at least three Business
Days in advance of the proposed Credit Date in the case of a Eurodollar Rate Loan, and
at least one Business Day in advance of the proposed Credit Date in the case of a
Revolving Loan that is a Base Rate Loan. Except as otherwise provided herein, a
Funding Notice for a Term Loan that is a Eurodoiiar Rate Loan shall be irrevocable on
and after the related Interest Rate Determination Date, and the applicable Borrower shall
be bound to make a borrowing in accordance therewith.
(iii) Notice of receipt of each Funding Notice in respect of Term
Loans, together with the amount of each Lender's Pro Rata Share thereof, if any, together
with the applicable interest rate, shall be provided by Administrative Agent to each
applicable Lender by telefacsimile with reasonable promptness, but (provided
Administrative Agent shall have received such notice by 11:00 a.m. (New York City
time)) not later than 2:00p.m. (New York City time) on the same day as Administrative
Agent's receipt of such Notice from such Borrower.
(iv) Each Lender shall make its Term Loan available . to
Administrative Agent not later than 1:00 p.m. (New York City time) on the applicable
Credit Date, by wire transfer of same day funds in Dollars, at the Principal Office
designated by Administrative Agent. Upon satisfaction or waiver of the conditions
precedent specified herein, Administrative Agent shall make the proceeds of the Term
Loans available to Borrowers on the applicable Credit Date by causing an amount of
same day funds in Dollars equal to the proceeds of all such Term Loans received by
Administrative Agent from Lenders to be credited to the account of Borrowers at the
Principal Office designated by Administrative Agent or to such other account as may be
designated in writing to Administrative Agent by Borrowers.
(v) Notwithstanding anything to the contrary herein, Borrowers may
only request the Lenders to make Term Loans on up to three occasions (including the
Closing Date) during the Term Loan Funding Period.
(vi) Unless the Term Loan Commitments have been reduced in
accordance with Section 2.13(b) or terminated in accordance with Section 8.1, on the last
day of the Term Loan Funding Period, Burrowers shall be deemed to have made a
funding request for a final Term Loan in an aggregate amount equal to the excess of (A)
the Term Loan Commitments and (B) the aggregate principal amount of Term Loans
previously made by the Lenders hereunder. The Credit Date for such final Term Loan
shall be three Business Days after the last day of the Term Loan Funding Period.
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Administrative Agent shall deliver notice to each Lender with a Term Loan Commitment
of such request in accordance with paragraph (ii) above.
2.2 Revolving Loans.
(a) Revolving Commitments. During the Revolving Commitment Period,
subject to the terms and conditions hereof, each Lender severally agrees to make Revolving
Loans to Borrowers in an aggregate amount up to but not exceeding such Lender's Revolving
Commitment; provided, that after giving effect to the making of any Revolving Loans in no
event shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments
then in effect. Amounts borrowed pursuant to this Section 2.2(a) may be repaid and reborrowed
during the Revolving Commitment Period. Each Lender's Revolving Commitment shall expire
on the Revolving Commitment Termination Date and all Revolving Loans and all other amounts
owed hereunder with respect to the Revolving Loans and the Revolving Commitments shall be
paid in full no later than such date.
(b) Borrowing Mechanics for Revolving Loans.
(i) Except pursuant to 2.4( d), Revolving Loans that are Base Rate
Loans shall be made in an aggregate minimum amount of $1,000,000 and integral
multiples of $250,000 in excess of that amount, and Revolving Loans that are Eurodollar
Rate Loans shall be in an aggregate minimum amount of $1,000,000 and integral
multiples of $250,000 in excess of that amount.
(ii) Whenever any Borrower desires that Lenders make Revolving
Loans, such Borrower shall deliver to Administrative Agent a fully executed and
delivered Funding Notice no later than 11:00 a.m. (New York City time) at least three
Business Days in advance of the proposed Credit Date in the case of a Eurodollar Rate
Loan, and at least one Business Day in advance of the proposed Credit Date in the case of
a Revolving Loan that is a Base Rate Loan. Except as otherwise provided herein, a
Funding Notice for a Revolving Loan that is a Eurodollar Rate Loan shall be irrevocable
on and after the related Interest Rate Determination Date, and the applicable Borrower
shall be bound to make a borrowing in accordance therewith.
(iii) Notice of receipt of each Funding Notice in respect of Revolving
Loans, together with the amount of each Lender's Pro Rata Share thereof, if any, together
with the applicable interest rate, shall be provided by Administrative Agent to each
applicable Lender by telefacsimile with reasonable promptness, but (provided
Administrative Agent shall have received such notice by 11 :00 a.m. (New York City
time)) not later than 2:00p.m. (New York City time) on the same day as Administrative
Agent's receipt of such Notice from such Borrower.
49
(iv) Each Lender shall make the amount of its Revolving Loan
available to Administrative Agent not later than 1:00 p.m. (New York City time) on the
applicable Credit Date by wire transfer of same day funds in Dollars, at the Principal
Office designated by Administrative Agent. Except as provided herein, upon satisfaction
or \Vaiver of the conditions precedent specified herein, Administrative Agent shall make
the proceeds of such Revolving Loans available to Borrowers on the applicable Credit
Date by causing an amount of same day funds in Dollars equal to the proceeds of all such
Revolving Loans received by Administrative Agent from Lenders to be credited to the
account of Borrowers at the Principal Office designated by Administrative Agent or such
other account as may be designated in writing to Administrative Agent by Borrowers.
2.3 Swing Line Loans.
(a) Swing Line Loans Commitments. During the Revolving Commitment
Period, subject to the terms and conditions hereof, Swing Line Lender hereby agrees to make
Swing Line Loans to Borrowers in the aggregate amount up to but not exceeding the Swing Line
Sublimit; provided, that after giving effect to the making of any Swing Line Loan, in no event
shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments then
in effect. Amounts borrowed pursuant to this Section 2.3 may be repaid and reborrowed during
the Revolving Commitment Period. Swing Line Lender's Revolving Commitment shall expire
on the Revolving Commitment Termination Date and all Swing Line Loans and all other
amounts owed hereunder with respect to the Swing Line Loans and the Revolving Commitments
shall be paid in full no later than such date.
(b) Borrowing Mechanics for Swing Line Loans.
(i) Swing Line Loans shall be made in an aggregate mm1mum
amount of$100,000 and integral multiples of$50,000 in excess of that amount.
(ii) Whenever any Borrower desires that Swing Line Lender make a
Swing Line Loan, such Borrower shall deliver to Administrative Agent a Funding Notice
no later than 12:00 p.m. (New York City time) on the proposed Credit Date.
(iii) Swing Line Lender shall make the amount of its Swing Line
Loan available to Administrative Agent not later than 2:00 p.m.(New York City time) on
the applicable Credit Date by wire transfer of same day funds in Dollars, at
Administrative Agent's Principal Office. Except as provided herein, upon satisfaction or
waiver of the conditions precedent specified herein, Administrative Agent shall make the
proceeds of such Swing Line Loans available to the applicable Borrower on the
applicable Credit Date by causing an amount of same day funds in Dollars equal to the
proceeds of all such Swing Line Loans received by Administrative Agent from Swing
Line Lender to be credited to the account of Borrowers at Administrative Agent's
50
Principal Office, or to such other account as may be designated m writing to
Administrative Agent by Borrowers.
(iv) With respect to any Swing Line Loans which have not been
voluntarily prepaid by Borrowers pursuant to Section 2.13, Swing Line Lender may at
any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy
to Borrowers), no later than 11:00 a.m. (New York City time) at least one Business Day
in advance of the proposed Credit Date, a notice (which shall be deemed to be a Funding
Notice given by Borrowers, but Borrowers shall not be deemed to have made any
representations and warranties in connection with such deemed Funding Notice)
requesting that each Lender holding a Revolving Commitment make Revolving Loans
that are Base Rate Loans to Borrowers on such Credit Date in an amount equal to the
amount of such Swing Line Loans (the "Refunded Swing Line Loans") outstanding on
the date such notice is given which Swing Line Lender requests Lenders to prepay.
Anything contained in this Agreement to the contrary notwithstanding, (I) the proceeds
of such Revolving Loans made by the Lenders other than Swing Line Lender shall be
immediately delivered by Administrative Agent to Swing Line Lender (and not to
Borrowers) and applied to repay a corresponding portion of the Refunded Swing Line
Loans and (2) on the day such Revolving Loans are made, Swing Line Lender's Pro Rata
Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of
a Revolving Loan made by Swing Line Lender to Borrowers, and such portion of the
Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line
Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but
shall instead constitute part of Swing Line Lender's outstanding Revolving Loans to
Borrowers and shall be due under the Revolving Loan Note issued by Borrowers to
Swing Line Lender. Borrowers hereby authorize Administrative Agent and Swing Line
Lender to charge Borrowers' accounts with Administrative Agent and Swing Line Lender
(up to the amount available in each such account) in order to immediately pay Swing
Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of
such Revolving Loans made by Lenders, including the Revolving Loans deemed to be
made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line
Loans. If any portion of any such amount paid (or deemed to be paid) to Swing Line
Lender should be recovered by or on behalf of Borrowers from Swing Line Lender in
bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the
amount so recovered shall be ratably shared among all Lenders in the manner
contemplated by Section 2.17.
(v) If for any reason Revolving Loans are not made pursuant to
Section 2.3(b )(iv) in an amount sufficient to repay any amounts owed to Swing Line
Lender in respect of any outstanding Swing Line Loans on or before the third Business
Day after demand for payment thereof by Swing Line Lender, each Lender holding a
Revolving Commitment shall be deemed to, and hereby agrees to, have purchased a
participation in such outstanding Swing Line Loans, and in an amount equal to its Pro
Rata Share of the applicable unpaid amount together with accrued interest thereon. Upon
one Business Day's notice from Swing Line Lender, each Lender holding a Revolving
51
Commitment shall deliver to Swing Line Lender an amount equal to its respective
participation in the applicable unpaid amount in same day funds at the Principal Office of
Swing Line Lender. In order to evidence such participation each Lender holding a
Revolving Commitment agrees to enter into a participation agreement at the request of
S\xting Line Lender in form and substan.cc reasonably satisfactory to Swing Line Lender.
In the event any Lender holding a Revolving Commitment fails to make available to
Swing Line Lender the amount of such Lender's participation as provided in this
paragraph, Swing Line Lender shall be entitled to recover such amount on demand from
such Lender together with interest thereon for three Business Days at the rate customarily
used by Swing Line Lender for the correction of errors among banks and thereafter at the
Base Rate, as applicable.
(vi) Notwithstanding anything contained herein to the contrary, (1)
each Lender's obligation to make Revolving Loans for the purpose of repaying any
Refunded Swing Line Loans pursuant to the second preceding paragraph and each
Lender's obligation to purchase a participation in any unpaid Swing Line Loans pursuant
to the immediately preceding paragraph shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against Swing Line Lender, any
Credit Party or any other Person for any reason whatsoever; (B) the occurrence or
continuation of a Default or Event of Default; (C) any adverse change in the business,
operations, properties, assets, condition (financial or otherwise) or prospects of any
Credit Party; (D) any breach of this Agreement or any other Credit Document by any
party thereto; or (E) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing; provided that such obligations of each Lender are
subject to the condition that Swing Line Lender believed in good faith that all conditions
under Section 3.2 to the making of the applicable Refunded Swing Line Loans or other
unpaid Swing Line Loans, were satisfied at the time such Refunded Swing Line Loans or
unpaid Swing Line Loans were made, or the satisfaction of any such condition not
satisfied had been waived by the Requisite Lenders prior to or at the time such Refunded
Swing Line Loans or other unpaid Swing Line Loans were made; and (2) Swing Line
Lender shall not be obligated to make any Swing Line Loans (A) if it has elected not to
do so after the occurrence and during the continuation of a Default or Event of Default or
(B) at a time when a Funding Default exists unless Swing Line Lender has entered into
arrangements satisfactory to it and Borrowers to eliminate Swing Line Lender's risk with
respect to the Defaulting Lender's participation in such Swing Ling Loan, including by
cash collateralizing such Defaulting Lender's Pro Rata Share of the outstanding Swing
Line Loans.
2.4 Issuance of Letters of Credit and Purchase of Participations Therein.
(a) Letters of Credit. During the LC Commitment Period, subject to the terms
and conditions hereof, Administrative Agent agrees to cause the Issuing Bank to issue Letters of
Credit for the account of Borrowers in the aggregate amount up to but not exceeding the
aggregate LC Commitments; provided, (i) each Letter of Credit shall be denominated in Dollars;
52
(ii) the stated amount of each Letter of Credit shall not be less than $100,000 or such lesser
amount as is acceptable to Issuing Bank; (iii) after giving effect to such issuance, in no event
shall the LC Usage exceed the amount in the LC Deposit Account; (iv) in no event shall any
standby Letter of Credit have an expiration date later than the earlier of (1) after the Exit
Facilities Conversion Date, the second Business Day prior to the LC Commitment Termination
Date and (2) the date which is one year from the date of issuance of such standby Letter of Credit;
and (v) in no event shall any commercial Letter of Credit (x) have an expiration date later than
the earlier of (1) after the Exit Facilities Conversion Date, the second Business Day prior to the
LC Commitment Termination Date and (2) the date which is 180 days from the date of issuance
of such commercial Letter of Credit or (y) be issued if such commercial Letter of Credit is
otherwise unacceptable to Issuing Bank in its reasonable discretion.
(b) Notice of Issuance. Whenever any Borrower desires the issuance,
amendment, renewal or extension of a Letter of Credit, it shall deliver to Administrative Agent
an Issuance Notice no later than 1:00 p.m. (New York City time) at least three Business Days (in
the case of standby letters of credit) or five Business Days (in the case of commercial letters of
credit), or in each case such shorter period as may be agreed to by Administrative Agent and
Issuing Bank in any particular instance, in advance of the proposed date of issuance. Upon
satisfaction or waiver of the conditions set forth in Section 3.2, Administrative Agent shall cause
Issuing Bank to issue the requested Letter of Credit and such Letter of Credit shall be issued only
in accordance with Issuing Bank's standard operating procedures. Upon receiving notice of the
issuance of any Letter of Credit or amendment or modification to a Letter of Credit,
Administrative Agent shall promptly notify each LC Lender of such issuance, which notice shall
be accompanied by a copy of such Letter of Credit or amendment or modification to a Letter of
Credit and the amount of such Lender's respective participation in such Letter of Credit pursuant
to Section 2.4(e).
(c) Responsibility of Issuing Bank With Respect to Requests for Drawings
and Payments. In determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, Issuing Bank shall be responsible only to examine the documents delivered
under such Letter of Credit with reasonable care so as to ascertain whether they appear on their
face to be in accordance with the terms and conditions of such Letter of Credit. As between
Borrowers, Administrative Agent and Issuing Bank, Borrowers assume all risks of the acts and
omissions of, or misuse of the Letters of Credit issued by Issuing Bank, by the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation of the foregoing,
neither Administrative Agent nor Issuing Bank shall be responsible for: (i) the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any such Letter of Credit, even if it should in
fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer
or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of the
beneficiary of any such Letter of Credit to comply fully with any conditions required in order to
draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in
53
cipher; (v) errors in interpretation of technical tem1s; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such Letter of Credit
or of the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit
of the proceeds of any drawing under such Letter of Credit; or (viii) any consequences arising
from causes beyond the control of Issuing Bank, including any Governmental Acts; none of the
above shall affect or impair, or prevent the vesting of, any of Issuing Bank's rights or powers
hereunder. Without limiting the foregoing and in furtherance thereof, any action taken or
omitted by Administrative Agent or Issuing Bank under or in connection with the Letters of
Credit or any documents and certificates delivered thereunder, if taken or omitted in good faith,
shall not give rise to any liability on the part of Administrative Agent or Issuing Bank to
Borrowers. Notwithstanding anything to the contrary contained in this Section 2.4(c), Borrowers
shall retain any and all rights they may have against Administrative Agent and Issuing Bank for
any liability arising solely out of the gross negligence or willful misconduct of such respective
Person.
(d) Reimbursement by Borrowers of Amounts Drawn or Paid Under Letters of
Credit. Upon receiving notice that the Issuing Bank has determined to honor a drawing under a
Letter of Credit, Administrative Agent shall immediately notify the applicable Borrower, and
such Borrower shall reimburse such LC Disbursement by paying to Administrative Agent on or
before the Business Day immediately following the date of notice to such Borrower of such LC
Disbursement (the "Reimbursement Date") an amount in Dollars and in same day funds equal
to the amount of such LC Disbursement. Promptly following receipt by Administrative Agent of
any payment from such Borrower pursuant to this paragraph in respect of any LC Disbursement,
Administrative Agent shall distribute such payment to Issuing Bank or, to the extent payments
have been made from the LC Deposit Account pursuant to paragraph (e) below, to the LC
Deposit Account for allocation by Administrative Agent among the Sub-Accounts of the LC
Lenders in accordance with their Pro Rata Shares. Without limiting in any way the foregoing
and notwithstanding anything to the contrary contained herein or in any separate application for
any Letter of Credit, each Borrower hereby acknowledges and agrees that it shall be obligated to
reimburse Administrative Bank (on behalf ofthe Issuing Bank) upon each LC Disbursement, and
it shall be deemed to be the obligor for purposes of each such Letter of Credit issued hereunder.
(e) Lenders' Purchase of Participations in Letters of Credit. (i) Immediately
upon the issuance of each Letter of Credit, each LC Lender shall be deemed to have purchased,
and hereby agrees to irrevocably purchase, from Administrative Agent a participation in all
outstanding obligations incurred by Administrative Agent in connection with the issuance of
Letters of Credit by Issuing Bank and any related LC Disbursement made by Issuing Bank
thereunder in an amount equal to such Lender's Pro Rata Share (with respect to the LC
Commitments) of the maximum amount which is or at any time may become available to be
drawn thereunder. In the event that any Borrower shall fail for any reason to reimburse Issuing
Bank in respect of an LC Disbursement as provided in Section 2.4( d), Administrative Agent shall
promptly notify each LC Lender of the unreimbursed amount of such LC Disbursement, and
Administrative Agent shall pay to Issuing Bank, from the LC Deposit Account, for the account
of each LC Lender, an amount equal to such LC Lender's Pro Rata Share of such LC
Disbursement, in Dollars and in same day funds, at the office of Issuing Bank specified in such
54
notice, not later than 1:00 p.m. (New York City time) on the first business day (under the laws of
the jurisdiction in which such office of Issuing Bank is located) after the date notified by Issuing
Bank. In the event that the LC Deposit Account is charged by Administrative Agent to
reimburse Issuing Bank pursuant to this Section 2.4(e), the applicable Borrower shall pay over to
Administrative Agent in reimbursement of the applicable LC Disbursement an amount equal to
the amount so charged, as provided in paragraph (d) above, and such payment shall be deposited
by Administrative Agent in the LC Deposit Account. Each LC Lender irrevocably authorizes
Administrative Agent to apply, or to permit the LC Depositary Bank to apply, amounts of its LC
Deposit held in the LC Deposit Account as provided in this Section 2.4( e). Any payment made
from the LC Deposit Account, pursuant to this paragraph to reimburse Issuing Bank for any LC
Disbursement shall not constitute a Loan and shall not relieve any Borrower of its obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The obligation of Borrowers to reimburse Issuing
Bank for LC Disbursements made by it, the obligation of Borrowers to reimburse each LC
Lender for any payments made to Issuing Bank from the LC Deposit Account to reimburse
Issuing Bank for any LC Disbursement and the obligations of LC Lenders under Section 2.4(e)
shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms
hereof under all circumstances including any of the following circumstances: (i) any lack of
validity or enforceability of any Letter of Credit; (ii) the existence of any claim, set-off, defense
or other right which Borrowers or any Lender may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Persons for whom any such transferee may be acting),
Issuing Bank, Lender or any other Person or, in the case of a Lender, against Borrowers, whether
in connection herewith, the transactions contemplated herein or any unrelated transaction
(including any underlying transaction between Borrowers or one of its Subsidiaries and the
beneficiary for which any Letter of Credit was procured); (iii) any draft or other document
presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by
Issuing Bank to the beneficiary or as otherwise required by law under any Letter of Credit
against presentation of a draft or other document which does not substantially comply with the
terms of such Letter of Credit; (v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of Holdings or any of its Subsidiaries; (vi)
any breach hereof or any other Credit Document by any party thereto; (vii) any other
circumstance or happening whatsoever, whether or not similar to any of the foregoing; (viii) the
fact that an Event ofDefault or a Default shall have occurred and be continuing; or (ix) the return
of the LC Deposits; provided, in each case, that payment by Issuing Bank under the applicable
Letter of Credit shall not have constituted gross negligence or willful misconduct of Issuing
Bank under the circumstances in question.
(g) Indemnification. Without duplication of any obligation of Borrowers
under Section 10.2 or 1 0.3, in addition to amounts payable as provided herein, each Borrower
hereby agrees to protect, indemnify, pay and save harmless Administrative Agent and Issuing
Bank from and against any and all claims, demands, liabilities, damages, losses, costs, charges
and expenses (including reasonable fees, expenses and disbursements of counsel and reasonable
allocated costs of internal counsel) which Administrative Agent or Issuing Bank may incur or be
55
subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit by
Issuing Bank, other than, with respect to the Issuing Bank only, as a result of (1) the gross
negligence or willful misconduct of Issuing Bank or (2) the wrongful dishonor by Issuing Bank
of a proper demand for payment made under any Letter of Credit issued by it, or (ii) the failure
of Issuing Bank to honor a dravving under any such Letter of Credit as a resuit of any
Governmental Act.
(h) Issuing Bank Reports. Unless otherwise agreed by Administrative Agent,
Administrative Agent shall cause Issuing Bank to report in writing to Administrative Agent (i)
on or prior to each Business Day on which Issuing Bank issues, amends, renews or extends any
Letter of Credit, the date of such issuance, amendment, renewal or extension, and the aggregate
face amount of the Letters of Credit issued, amended, renewed or extended by it and outstanding
after giving effect to such issuance, amendment, renewal or extension (and whether the amount
thereof has changed), it being understood that Issuing Bank shall not affect the issuance, renewal,
extension or amendment resulting in an increase in the amount of any Letter of Credit without
first obtaining written confirmation from Administrative Agent that such increase is then
permitted under this Agreement, (ii) on each Business Day on which Issuing Bank makes an LC
Disbursement, the date and amount of such LC Disbursement, (iii) on any Business Day on
which any Borrower fails to reimburse an LC Disbursement required to be reimbursed to Issuing
Bank on such day, the date of such failure and the amount of such LC Disbursement and (iv) on
any other Business Day, such other information as Administrative Agent shall reasonably request
as to the Letters of Credit issued by Issuing Bank and outstanding on such Business Day.
(i) Establishment of LC Deposit Account and Sub-Accounts. On or prior to
the Closing Date, Administrative Agent shall establish a deposit account (the "LC Deposit
Account") of Administrative Agent at the LC Depositary Bank with the title "Allied Holdings
2007 Credit Agreement LC Deposit Account". Administrative Agent shall maintain records
enabling it to determine at any time the amount of the interest of each LC Lender in the LC
Deposit Account (the interest of each LC Lender in the LC Deposit Account, as evidenced by
such records, being referred to as such LC Lender's "Sub-Account"). Administrative Agent
shall establish such additional Sub-Accounts for assignee LC Lenders as shall be required
pursuant to Section I 0.6(g). No Person (including any LC Lender) shall have the right to make
any withdrawal from the LC Deposit Account or to exercise any other right or power with
respect thereto except as expressly provided in paragraph (1) below or in Section 1 0.6(g).
Without limiting the generality of the foregoing, each party hereto acknowledges and agrees that
the amounts on deposit in the LC Deposit Account are and will at all times be property of
Administrative Agent acting for the benefit of the LC Lenders, and that no amount on deposit at
any time in the LC Deposit Account shall be the property of any of the Credit Parties, constitute
"Collateral" under the Credit Documents or otherwise be available in any manner to satisfy any
Obligations of any of the Credit Parties under the Credit Documents. Each LC Lender agrees
that its right, title and interest in and to the LC Deposit Account shall be limited to the right,
acting through Administrative Agent, to require amounts in its Sub-Account to be applied as
provided in paragraph (I) below and that it will have no right to require the return of its portion
of the amounts in the LC Deposit Account other than as expressly provided in such paragraph (1)
(each LC Lender hereby acknowledging (i) that its portion of the amounts in the LC Deposit
56
Account constitutes payment for its participations in Letters of Credit issued or to be issued
hereunder, (ii) that its portion of amounts in the LC Deposit Account and any investments made
therewith shall secure its obligations to Administrative Agent hereunder in respect of Letters of
Credit (each LC Lender hereby granting to Administrative Agent a security interest in such LC
Lender's portion of the amounts in the LC Deposit Account to secure such obligations) and (iii)
that Administrative Agent shall cause the Issuing Bank to issue, amend, renew and extend
Letters of Credit in reliance on the availability of such LC Lender's portion of the amounts in the
LC Deposit Account to discharge such LC Lender's obligations in accordance with Section 2.4(e)
in connection with any LC Disbursement thereunder). The funding of the LC Deposits, the
establishment and funding of the LC Deposit Account and the agreements with respect thereto
set forth in this Agreement constitute arrangements among Administrative Agent, Issuing Bank
and the LC Lenders with respect to the funding obligations of the LC Lenders under this
Agreement, and the amounts in the LC Deposit Account do not constitute a loan or extension of
credit to any Credit Party. Except as otherwise set forth herein, no Credit Party shall have any
responsibility or liability to the LC Lenders, the Agents or any other Person in respect of the
establishment, maintenance, administration or misappropriation of the LC Deposit Account (or
any Sub-Account) or with respect to the investment of amounts held therein, including pursuant
to paragraph (n) below. Administrative Agent hereby waives (and shall use its commercially
reasonable efforts to cause the LC Depositary Bank to waive) any right of setoff against the LC
Deposit Account that it may have under applicable law or otherwise with respect to amounts
owed to it by LC Lenders (it being agreed that such waiver shall not reduce the rights of
Administrative Agent to apply or require the application of the amounts in the LC Deposit
Account in accordance with the provisions of this Agreement).
U) Funding ofLC Deposits.
(i) Subject to the terms and conditions hereof, each LC Lender
severally agrees to make a deposit in such LC Lender's Sub-Account with Administrative
Agent on the Closing Date in an aggregate amount up to but not exceeding such LC
Lender's LC Commitment.
(ii) Each LC Lender shall make the amount of its LC Deposit
available to Administrative Agent not later than 1:00 p.m. (New York City time) on the
Closing Date by wire transfer of same day funds in Dollars, at the Principal Office
designated by Administrative Agent. Except as provided herein, upon satisfaction or
waiver of the conditions precedent specified herein, Administrative Agent shall deposit
the proceeds of such LC Deposits into the LC Deposit Account.
(iii) LC Deposits shall be available, on the terms and subject to the
conditions set forth herein, for application pursuant to Section 2.4(e) to reimburse such
LC Lender's Pro Rata Share of LC Disbursements that are not reimbursed by Borrowers.
The obligations of LC Lenders to make the deposits required by this Section 2.4G) are
several, and no LC Lender shall be responsible for any other LC Lender's failure to make
its deposit as so required.
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(k) LC Deposits in LC Deposit Account. The following amounts will be
deposited in the LC Deposit Account at the following times:
(i) Each LC Lender shall make such LC Lender's LC Deposits
available to Administrative Agent in accordance with Section 2.4(j). Thereafter, the LC
Deposits shall be available, on the terms and subject to the conditions set forth herein, for
application pursuant to Section 2.4(e) to reimburse Issuing Bank for such LC Lender's
Pro Rata Share of LC Disbursements that are not reimbursed by Borrowers.
(ii) On any date prior to the LC Commitment Termination Date on
which Administrative Agent or Issuing Bank receives any reimbursement payment from
Borrowers in respect of an LC Disbursement with respect to which amounts were
withdrawn from the LC Deposit Account to reimburse Issuing Bank, subject to
subparagraph (iii) below, Administrative Agent shall deposit, or Issuing Bank shall
transfer to Administrative Agent, which shall deposit, in the LC Deposit Account, and
Administrative Agent shall credit to the Sub-Accounts of the LC Lenders, the portion of
such reimbursement payment to be deposited therein, in accordance with Section 2.4( e).
(iii) If at any time when any amount is required to be deposited in the
LC Deposit Account under subparagraph (ii) above the sum of such amount and the
amount held in the LC Deposit Account at such time would exceed the total LC Deposits,
then such excess shall not be deposited in the LC Deposit Account and shall instead be
paid to Administrative Agent, which shall pay to each LC Lender its Pro Rata Share of
such excess.
(iv) Concurrently with the effectiveness of any assignment by any
LC Lender of all or any portion of its LC Deposit, Administrative Agent shall transfer
into the Sub-Account ofthe assignee the corresponding portion of the amount on deposit
in the assignor's Sub-Account in accordance with Section 10.6(g).
(1) Withdrawals From and Closing of LC Deposit Account. Amounts on
deposit in the LC Deposit Account shall be withdrawn and distributed (or transferred, in the case
of subparagraph (iv) below) as follows:
(i) On each date on which Issuing Bank is to be reimbursed by the
LC Lenders pursuant to Section 2.4(e) for any LC Disbursement made by Issuing Bank,
Administrative Agent shall withdraw from the LC Deposit Account the amount of such
unreimbursed LC Disbursement (and Administrative Agent shall debit the Sub-Account
of each LC Lender in the amount of such LC Lender's Pro Rata Share of such
unreimbursed LC Disbursement) and apply such amount to reimburse Issuing Bank for
such LC Disbursement (if such Issuing Bank shall be the LC Depositary Bank) or transfer
such amount to Administrative Agent, which shall apply the amount so transferred to
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reimburse Issuing Bank (if Issuing Bank shall not be the LC Depositary Bank), all in
accordance with Section 2.4(e).
(ii) Concurrently with each voluntary reduction of the total LC
Commitments pursuant to and in accordance with Section 2.13 or 2.15, Administrative
Agent shall withdraw from the LC Deposit Account and pay to each LC Lender such LC
Lender's Pro Rata Share of any amount by which the LC Deposits, after giving effect to
such reduction of the total LC Commitments, would exceed the greater of the total LC
Commitments and the total LC Usage (and the LC Depositary Bank agrees to pay over
such amounts in the LC Deposit Account to Administrative Agent).
(iii) Concurrently with any reduction of the total LC Commitments to
zero pursuant to and in accordance with Section 2.13, 2.15 or Section 8, Administrative
Agent shall withdraw from the LC Deposit Account and pay to each LC Lender such LC
Lender's Pro Rata Share of the excess at such time of the aggregate amount of the LC
Deposits over the LC Usage (and the LC Depositary Bank agrees to pay over such
amounts in the LC Deposit Account to Administrative Agent).
(iv) Concurrently with the effectiveness of any assignment by any
LC Lender of all or any portion of its LC Deposit, the corresponding portion of the
assignor's Sub-Account shall be transferred on the records of Administrative Agent from
the assignor's Sub-Account to the assignee's Sub-Account in accordance with Section
10.6(g) and, if required by Section 10.6(g), Administrative Agent shall close such
assignor's Sub-Account.
(v) Upon the reduction of each of the total LC Commitments and the
LC Usage to zero, Administrative Agent shall withdraw from the LC Deposit Account
and pay to each LC Lender the entire remaining amount of such LC Lender's LC Deposit,
and shall close the LC Deposit Account (and the LC Depositary Bank agrees to pay over
such amounts in the LC Deposit Account to Administrative Agent).
Each LC Lender irrevocably and unconditionally agrees that its LC Deposit may be applied or
withdrawn from time to time as set forth in this paragraph (1).
(m) Investment of Amounts in LC Deposit Account. Administrative Agent
shall use its commercially reasonable efforts to invest, or cause to be invested, the amounts held
from time to time in the LC Deposit Account so as to earn for the account of Administrative
Agent, acting on behalf of each LC Lender, a return thereon for each day at a rate per annum
equal to (i) the one month LIBOR rate as determined by Administrative Agent on such day (or if
such day was not a Business Day, the first Business Day immediately preceding such day) based
on rates for deposits in dollars (as set forth by Bloomberg L.P.-page BTMMor any other
comparable publicly available service as may be selected by Administrative Agent) (the
59
"Benchmark LIBOR Rate") minus (ii) 0.15% per annum (based on a 365/366 day year). The
Benchmark LIBOR Rate will be reset on the first Business Day of each month. The LC Deposit
Return accrued through and including the first day of January, April, July and October of each
year shall be paid by the LC Depositary Bank to Administrative Agent, for payment to each LC
Lender, on the third Business Day following such last day, commencing on the first such date to
occur after the Closing Date, and on the date on which each of the total LC Deposits and the LC
Usage shall have been reduced to zero. Neither Administrative Agent nor any other Person
guarantees any rate of return on the investment of amounts held in the LC Deposit Account and,
for the avoidance of doubt, Administrative Agent shall not be limited to making investments that
by their terms are expressly based upon or related to an underlying LIBOR rate.
(n) Sufficiency of LC Deposits to Provide for Undrawn/ Unreimbursed
Letters of Credit. Notwithstanding any other provision ofthis Agreement, including Sections 2.1
and 2.4, Administrative Agent shall not cause any Letter of Credit to be issued or increased as to
its stated amount if, after giving effect to such issuance or increase, the aggregate amount of the
LC Deposits would be less than the LC Usage.
(o) Satisfaction ofLC Lender Funding Obligations. Borrowers, Issuing Bank
and Administrative Agent each acknowledge and agree that, notwithstanding any other provision
contained in this Agreement, the deposits by Administrative Agent, on behalf of each LC Lender,
in the LC Deposit Account on the Closing Date of funds equal to such LC Lender's LC
Commitment will fully discharge the obligation of such LC Lender to reimburse such LC
Lender's Pro Rata Share of LC Disbursements that are not reimbursed by Borrowers pursuant to
Section 2.4( d), and that no other or further payments shall be required to be made by any LC
Lender in respect of any such reimbursement obligations.
2.5 Pro Rata Shares; Availability of Funds.
(a) Pro Rata Shares. All Loans and LC Deposits shall be made, and all
participations purchased, by Lenders simultaneously and proportionately to their respective Pro
Rata Shares, it being understood that no Lender shall be responsible for any default by any other
Lender in such other Lender's obligation to make a Loan or LC Deposit requested hereunder or
purchase a participation required hereby nor shall any Term Loan Commitment, LC
Commitment or any Revolving Commitment of any Lender be increased or decreased as a result
of a default by any other Lender in such other Lender's obligation to make a Loan requested
hereunder or purchase a participation required hereby.
(b) Availability of Funds. Unless Administrative Agent shall have been
notified by any Lender prior to the applicable Credit Date that such Lender does not intend to
make available to Administrative Agent the amount of such Lender's Loan or LC Deposit
requested on such Credit Date, Administrative Agent may assume that such Lender has made
such amount available to Administrative Agent on such Credit Date and Administrative Agent
may, in its sole discretion, but shall not be obligated to, make available to Borrowers a
corresponding amount on such Credit Date. If such corresponding amount is not in fact made
60
available to Administrative Agent by such Lender, Administrative Agent shall be entitled to
recover such corresponding amount on demand from such Lender together with interest thereon,
for each day from such Credit Date until the date such amount is paid to Administrative Agent, at
the customary rate set by Administrative Agent for the correction of errors among banks for
three Business Days and thereafter at the Base Rate. If such Lender does not pay such
corresponding amount forthwith upon Administrative Agent's demand therefor, (i) in the case of
Loans, Administrative Agent shall promptly notify Borrowers and Borrowers shall immediately
pay such corresponding amount to Administrative Agent together with interest thereon, for each
day from such Credit Date until the date such amount is paid to Administrative Agent, at the rate
payable hereunder for the applicable Loans and (ii) in the case of LC Deposits, Administrative
Agent may withdraw from the LC Deposit Account such corresponding amount together with
interest thereon, for each day from such Credit Date until the date of such withdrawal by
Administrative Agent, at the rate for LC Deposits provided in Section 2.4(m). Nothing in this
Section 2.5(b) shall be deemed to relieve any Lender from its obligation to fulfill its LC
Commitment, Term Loan Commitments and Revolving Commitments hereunder or to prejudice
any rights that Borrowers may have against any Lender as a result of any default by such Lender
hereunder.
2.6 Use of Proceeds. The proceeds of the Term Loans made on the Closing Date
shall be applied by Borrowers to (i) pay in full Existing Indebtedness and (ii) pay certain other
fees and expenses relating to the credit facilities established hereunder. The proceeds of the
Terms Loans, Revolving Loans, Swing Line Loans and Letters of Credit made after the Closing
Date shall be applied by Borrowers for working capital and general corporate purposes of
Holdings and its Subsidiaries. No portion of the proceeds of any Credit Extension shall be used
in any manner that causes or might cause such Credit Extension or the application of such
proceeds to violate Regulation T, Regulation U or Regulation X of the Board of Governors or
any other regulation thereof or to violate the Exchange Act. Nothing herein shall in any way
prejudice or prevent any Agent or the Lenders from objecting, for any reason, to any requests,
motions, or applications made in the Bankruptcy Court, including any application of final
allowances of compensation for services rendered or reimbursement of expenses incurred under
Sections 1 05( a), 330 or 331 of the Bankruptcy Code, by any party in interest. Prior to the Exit
Facilities Conversion Date, Holdings and its Subsidiaries shall not use the proceeds of the Loans
or the Letters of Credit (i) for any purpose that is prohibited under the Bankruptcy Code or (ii) to
commence or prosecute or join in any action against any Agent, Lender or Issuing Bank seeking
(x) to avoid, subordinate or recharacterize the Obligations or any of the Collateral Agent's Liens,
(y) any monetary, injunctive or other affirmative relief against any Agent, Lender or Issuing
Bank or their Collateral in connection with the Credit Documents, or (z) to prevent or restrict the
exercise by any Agent, Lender or Issuing Bank of any of their respective rights or remedies
under the Credit Documents.
2.7 Evidence of Debt; Register; Lenders' Books and Records; Notes.
(a) Lenders' Evidence of Debt. Each Lender shall maintain on its internal
records an account or accounts evidencing the Obligations of Borrowers to such Lender,
including the amounts of the Loans made by it and each repayment and prepayment in respect
thereof. Any such recordation shall be conclusive and binding on Borrowers, absent manifest
61
error; that the failure to make any such recordation, or any error in such recordation,
shall not affect any Lender's Commitments or Borrowers' Obligations in respect of any
applicable Loans; and provided further, in the event of any inconsistency between the Register
and any Lender's records, the recordations in the Register shall govem.
(b) Register. Administrative Agent (or its agent or sub-agent appointed by it)
shall maintain at the Principal Office a register for the recordation of the names and addresses of
Lenders, the Commitments and Loans of each Lender and the LC Commitments and LC
Deposits of each Lender from time to time (the "Register"). The Register shall be available for
inspection by Borrowers or any Lender (with respect to any entry relating to such Lender's Loans
or LC Deposits) at any reasonable time and from time to time upon reasonable prior notice.
Administrative Agent shall record, or shall cause to be recorded, in the Register the
Commitments and the Loans of each Lender and the LC Commitments and the LC Deposits of
each Lender, each in accordance with the provisions of Section 1 0.6, and each repayment or
prepayment in respect of the principal amount of the Loans and each withdrawal from LC
Deposit Account, and any such recordation shall be conclusive and binding on Borrowers and
each Lender, absent manifest error; provided, failure to make any such recordation, or any error
in such recordation, shall not affect any Lender's Commitments or LC Commitments or
Borrowers' Obligations in respect of any Loan or LC Deposit. Borrowers hereby designate CIT
to serve as Borrowers' agent solely for purposes of maintaining the Register as provided in this
Section 2.7, and Borrowers hereby agree that, to the extent CIT serves in such capacity, CIT and
its officers, directors, employees, agents, sub-agents and affiliates shall constitute "Indemnitees."
(c) Notes. If so requested by any Lender by written notice to Borrowers (with
a copy to Administrative Agent) at least two Business Days prior to the Closing Date, or at any
time thereafter, Borrowers shall execute and deliver to such Lender (and/or, if applicable and if
so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section
10.6) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after
Borrower's receipt of such notice) a Note or Notes to evidence such Lender's Term Loan,
Revolving Loan or Swing Line Loan, as the case may be.
2.8 Interest on Loans.
(a) Except as otherwise set forth herein, each Loan shall bear interest on the
unpaid principal amount thereof from the date made through repayment (whether by acceleration
or otherwise) thereof as follows:
(i) in the case of Term Loans:
(1) if a Base Rate Loan, at the Base Rate plus 3 .00%; or
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(2)
Rate plus 4.00%;
if a Eurodollar Rate Loan, at the Adjusted Eurodollar
(ii) in the case of Revolving Loans:
(1) if a Base Rate Loan, at the Base Rate plus 1.00%; or
(2) if a Eurodollar Rate Loan, at the Adjusted Eurodollar
Rate plus 2.00%; and
(iii) in the case of Swing Line Loans, at the Base Rate plus 1.00%.
(b) The basis for determining the rate of interest with respect to any Loan
(except a Swing Line Loan which can be made and maintained as Base Rate Loans only), and the
Interest Period with respect to any Eurodollar Rate Loan, shall be selected by Borrowers and
notified to Administrative Agent and Lenders pursuant to the applicable Funding Notice or
Conversion/Continuation Notice, as the case may be; provided, until the earlier of (x) the date 75
days following the Closing Date and (y) the date that Syndication Agent notifies Borrowers that
the primary syndication of the Loans, LC Commitments, Term Loan Commitments and
Revolving Commitments has been completed, as determined by Syndication Agent, the Term
Loans shall be maintained as either (1) Eurodollar Rate Loans having an Interest Period of no
longer than one month or (2) Base Rate Loans. If on any day a Loan is outstanding with respect
to which a Funding Notice or Conversion/Continuation Notice has not been delivered to
Administrative Agent in accordance with the terms hereof specifying the applicable basis for
determining the rate of interest, then for that day such Loan shall be a Base Rate Loan.
(c) In connection with Eurodollar Rate Loans there shall be no more than five
(5) Interest Periods outstanding at any time. In the event Borrowers fail to specify between a
Base Rate Loan or a Eurodollar Rate Loan in the applicable Funding Notice or
Conversion/Continuation Notice, such Loan (if outstanding as a Eurodollar Rate Loan) will be
automatically converted into a Base Rate Loan on the last day of the then-current Interest Period
for such Loan (or if outstanding as a Base Rate Loan will remain as, or (if not then outstanding)
will be made as, a Base Rate Loan). In the event Borrowers fail to specify an Interest Period for
any Eurodollar Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice,
Borrowers shall be deemed to have selected an Interest Period of one month. As soon as
practicable after 11:00 a.m. (New York City time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent manifest error, be final,
conclusive and binding upon all parties) the interest rate that shall apply to the Eurodollar Rate
Loans for which an interest rate is then being determined for the applicable Interest Period and
shall promptly give notice thereof (in writing or by telephone confirmed in writing) to Borrowers
and each Lender.
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(d) Interest payable pursuant to Section 2.8(a) shall be computed (i) in the
case of Base Rate Loans on the basis of a 365-day or 366-day year, as the case may be, and (ii)
in the case of Eurodollar Rate Loans, on the basis of a 360-day year, in each case for the actual
number of days elapsed in the period during which it accrues. In computing interest on any Loan,
the date of the making of such Loan or the first day of an Interest Period applicable to such Loan
or, with respect to a Term Loan, the last Interest Payment Date with respect to such Term Loan
or, with respect to a Base Rate Loan being converted from a Eurodollar Rate Loan, the date of
conversion of such Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall be
included, and the date of payment of such Loan or the expiration date of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan being converted to a Eurodollar
Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the
case may be, shall be excluded; provided, if a Loan is repaid on the same day on which it is made,
one day's interest shall be paid on that Loan.
(e) Except as otherwise set forth herein, interest on each Loan (i) shall accrue
on a daily basis and shall be payable in arrears on each Interest Payment Date with respect to
interest accrued on and to each such payment date; (ii) shall accrue on a daily basis and shall be
payable in arrears upon any prepayment of that Loan, whether voluntary or mandatory, to the
extent accrued on the amount being prepaid; and (iii) shall accrue on a daily basis and shall be
payable in arrears at maturity of the Loans, including final maturity of the Loans; provided,
however, with respect to any voluntary prepayment of a Base Rate Loan, accrued interest shall
instead be payable on the applicable Interest Payment Date.
(f) Borrowers agrees to pay to Administrative Agent, for the account of
Issuing Bank and the LC Lenders as described in paragraph (g) below, with respect to any LC
Disbursement, interest on the amount paid by Issuing Bank in respect of each such LC
Disbursement from the date of such LC Disbursement to but excluding the date such amount is
reimbursed by or on behalf of Borrowers at a rate equal to (i) for the period from the date of such
LC Disbursement to but excluding the applicable Reimbursement Date, the rate of interest
otherwise payable hereunder with respect to Revolving Loans that are Base Rate Loans, and (ii)
thereafter, a rate which is 2% per annum in excess of the rate of interest otherwise payable
hereunder with respect to Revolving Loans that are Base Rate Loans.
(g) Interest payable pursuant to Section 2.8(f) shall be computed on the basis
of a 365/366-day year for the actual number of days elapsed in the period during which it accrues,
and shall be payable on demand or, ifno demand is made, on the date on which the related LC
Disbursement is reimbursed in full by or on behalf of Borrowers. Interest accrued pursuant to
paragraph (f) shall be for the account of Administrative Agent, except that interest accrued on
and after the date of the application of the LC Deposits by Administrative Agent pursuant to
Section 2.4(e) to reimburse Issuing Bank for the applicable LC Disbursement shall be for the
account of the LC Lenders to the extent of such payment and, upon receipt of such amounts,
Administrative Agent shall promptly distribute to each LC Lender (other than a Defaulting
Lender) such Lender's Pro Rata Share of such payments.
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(h) For purposes of disclosure pursuant to the Interest Act (Canada), the
annual rates of interest or fees to which the rates of interest or fees provided in this Agreement
and the other Credit Documents (and stated herein or therein, as applicable, to be computed on
the basis of a period of time less than a calendar year) are equivalent are the rates so determined
multiplied by the actual number of days in the applicable calendar year and divided by the
number of days in such period of time.
2.9 Conversion/Continuation.
(a) Subject to Section 2.18 and so long as no Default or Event of Default shall
have occurred and then be continuing, Borrowers shall have the option:
(i) to convert at any time all or any part of any Term Loan or
Revolving Loan equal to $1,000,000 and integral multiples of $250,000 in excess of that
amount from one Type of Loan to another Type of Loan; provided, a Eurodollar Rate
Loan may only be converted on the expiration of the Interest Period applicable to such
Eurodollar Rate Loan unless Borrowers shall pay all amounts due under Section 2.18 in
connection with any such conversion; or
(ii) upon the expiration of any Interest Period applicable to any
Eurodollar Rate Loan, to continue all or any portion of such Loan equal to $1,000,000
and integral multiples of$250,000 in excess of that amount as a Eurodollar Rate Loan.
(b) Borrowers shall deliver a Conversion/Continuation Notice to
Administrative Agent no later than 11:00 a.m. (New York City time) at least one Business Day
in advance of the proposed conversion date (in the case of a conversion to a Base Rate Loan) and
at least three Business Days in advance of the proposed conversion/continuation date (in the case
of a conversion to, or a continuation of, a Eurodollar Rate Loan). Except as otherwise provided
herein, a Conversion/Continuation Notice for conversion to, or continuation of, any Eurodollar
Rate Loans (or telephonic notice in lieu thereof) shall be irrevocable on and after the related
Interest Rate Determination Date, and Borrowers shall be bound to effect a conversion or
continuation in accordance therewith.
2.10 Default Interest. The principal amount of all Loans outstanding and not paid
when due and, to the extent permitted by applicable law, any interest payments on the Loans or
any fees or other amounts owed hereunder and not paid when due, shall thereafter bear interest
(including post-petition interest in any proceeding under the Bankruptcy Code or other
applicable bankruptcy laws) payable on demand at a rate that is 2% per annum in excess of the
interest rate otherwise payable hereunder with respect to the applicable Loans (or, in the case of
any such fees and other amounts, at a rate which is 2% per annum in excess of the interest rate
otherwise payable hereunder for Base Rate Loans that are Revolving Loans); provided, in the
case of Eurodollar Rate Loans, upon the expiration ofthe Interest Period in effect at the time any
such increase in interest rate is effective such Eurodollar Rate Loans shall thereupon become
Base Rate Loans and shall thereafter bear interest payable upon demand at a rate which is 2% per
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annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans. Payment
or acceptance of the increased rates of interest provided for in this Section 2.10 is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of Default or
otherwise prejudice or limit any rights or remedies of Administrative Agent or any Lender.
2.11 Fees.
(a) Borrowers agree to pay to Lenders having Revolving Exposure
commitment fees equal to (1) the average of the daily difference between (a) the Revolving
Commitments and (b) the aggregate principal amount of all outstanding Revolving Loans times
(2) 0.375%. All fees referred to in this Section 2.1l(a) shall be paid to Administrative Agent at
its Principal Office and upon receipt, Administrative Agent shall promptly distribute to each
Lender its Pro Rata Share thereof.
(b) Borrowers agree to pay to Lenders having LC Deposits letter of credit fees
equal to (i) sum of the Adjusted Eurodollar Rate plus 4.00% per annum plus 0.15% per annum
times (ii) the average daily amount of total LC Deposits (it being understood that the LC Deposit
Return paid to Administrative Agent on behalf of the LC Lenders pursuant to Section 2.4(m)
during the applicable period referred to in Section 2.11(e) shall be credited towards payment of
the fees referred to in this Section 2.11 (b) for such period). All fees referred to in this Section
2.11 (b) shall be paid to Administrative Agent at its Principal Office and upon receipt,
Administrative Agent shall promptly distribute to each Lender its Pro Rata Share thereof.
(c) Borrowers agree to pay to Lenders having a Term Loan Commitment
ticking fees equal to (1) the average of the daily difference between (a) the Term Loan
Commitments and (b) the aggregate of the Term Loans previously made hereunder times (2)
1. 7 5%. All fees referred to in this Section 2.11 (c) shall be paid to Administrative Agent at its
Principal Office and upon receipt, Administrative Agent shall promptly distribute to each Lender
its Pro Rata Share thereof.
(d) (i) Borrowers agree to pay (x) to Administrative Agent, for its own
account, a fronting fee equal to .55% per annum times the average aggregate daily maximum
amount available to be drawn under all Leiters of Credit (determined as of the close of business
on any date of determination), and (y) to Administrative Agent, for the account of the Issuing
Bank, such documentary and processing charges (other than fronting fees) for any issuance,
amendment, transfer or payment of a Letter of Credit as are in accordance with Issuing Bank's
standard schedule for such charges and as in effect at the time of such issuance, amendment,
transfer or payment, as the case may be; and (ii) Administrative Agent agrees to pay to Issuing
Bank a fronting fee in such amount as may be agreed to by Issuing Bank and Administrative
Agent from time lo lime.
(e) All fees referred to in Section 2.11 (a), 2.11 (b), 2.11 (c) and 2.11 ( d)(i) shall
be calculated on the basis of a 360-day year and the actual number of days elapsed and shall be
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payable quarterly in arrears on February I, May 1, August 1 and November 1 of each year during
the Revolving Commitment Period, commencing on the first such date to occur after the Closing
Date, and on the Revolving Commitment Termination Date.
(f) In addition to any of the foregoing fees, Borrowers agree to pay to Agents
such other fees in the amounts and at the times separately agreed upon.
2.12 Scheduled Payments.
(a) Prior to the Exit Facilities Conversion Date, the principal amount of the
Term Loans, together with all other amounts owed hereunder with respect thereto, shall be paid
in full no later than the Maturity Date.
(b) Following the Exit Facilities Conversion Date, the principal amount of the
Term Loans shall be repaid in consecutive quarterly installments (each, an "Installment") of
0.25% of the original aggregate principal amount thereof after giving effect to the application of
the proceeds of the Second Lien Loans on the Restatement Date, each on the first day of each
calendar quarter of each year commencing on the first day of the calendar quarter following the
Exit Facilities Conversion Date. Notwithstanding the foregoing, (x) such Installments shall be
reduced in connection with any voluntary or mandatory prepayments of the Term Loans, in
accordance with Sections 2.13, 2.14 and 2.15, as applicable; and (y) the Term Loans, together
with all other amounts owed hereunder with respect thereto, shall, in any event, be paid in full no
later than the Maturity Date.
2.13 Voluntary Prepayments/Commitment Reductions; Call Protection.
(a) Voluntary Prepayments.
(i) Any time and from time to time:
(1) with respect to Base Rate Loans, Borrowers may prepay
any such Loans on any Business Day in whole or in part, in an aggregate
minimum amount of $1,000,000 and integral multiples of $250,000 in excess of
that amount;
(2) with respect to Eurodollar Rate Loans, Borrowers may
prepay any such Loans on any Business Day in whole or in part in an aggregate
minimum amount of $1,000,000 and integral multiples of $250,000 in excess of
that amount; and
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(3) with respect to Swing Line Loans, Borrowers may
prepay any such Loans on any Business Day in whole or in part in an aggregate
minimum amount of $100,000, and in integral multiples of $50,000 in excess of
that amount.
(ii) All such prepayments shall be made:
( 1) upon not less than one Business Day's prior written or
telephonic notice in the case of Base Rate Loans;
(2) upon not less than three Business Days' prior written or
telephonic notice in the case of Eurodollar Rate Loans; and
(3) upon written or telephonic notice on the date of
prepayment, in the case of Swing Line Loans;
in each case given to Administrative Agent or Swing Line Lender, as the case may be, by 12:00
p.m. (New York City time) on the date required and, if given by telephone, promptly confirmed
in writing to Administrative Agent (and Administrative Agent will promptly transmit such
telephonic or original notice for Term Loans or Revolving Loans, as the case may be, by
telefacsimile or telephone to each Lender) or Swing Line Lender, as the case may be. Upon the
giving of any such notice, the principal amount of the Loans specified in such notice shall
become due and payable on the prepayment date specified therein; provided that if specified in
such notice that such prepayment is being made with the proceeds of another transaction, such
prepayment may be contingent on the closing of such other transaction; provided further, that
Borrowers shall pay any amounts payable pursuant to Section 2.18(c) upon the failure of
Borrowers to make such prepayment on the date specified in such notice. Any such voluntary
prepayment shall be applied as specified in Section 2.15(a).
(b) Voluntary Commitment Reductions.
(i) Borrowers may, upon not less than three Business Days' prior
written or telephonic notice confirmed in writing to Administrative Agent (which original
written or telephonic notice Administrative Agent will promptly transmit by telefacsimile
or telephone to each applicable Lender), at any time and from time to time terminate in
whole or permanently reduce in part, without premium or penalty, the Revolving
Commitments in an amount up to the amount by which the Revolving Commitments
exceed the Total Utilization of Revolving Commitments at the time of such proposed
termination or reduction; provided, any such partial reduction of the Revolving
Commitments shall be in an aggregate minimum amount of $1,000,000 and integral
multiples of $250,000 in excess of that amount.
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(ii) Borrowers may, upon not less than three Business Days' prior
written or telephonic notice confirmed in writing to Administrative Agent (which original
written or telephonic notice Administrative Agent will promptly transmit by telefacsimile
or telephone to each applicable Lender), at any time and from time to time permanently
reduce in part, without premium or penalty, the Term Loan Commitments; provided, any
such reduction of the Term Loan Commitments shall be in an aggregate minimum
amount of$1,000,000 and integral multiples of$250,000 in excess ofthat amount.
(iii) Borrowers may, upon not less than three Business Days' prior
written or telephonic notice confirmed in writing to Administrative Agent (which original
written or telephonic notice Administrative Agent will promptly transmit by telefacsimile
or telephone to each applicable Lender and Issuing Bank), at any time and from time to
time terminate in whole or permanently reduce in part, without premium or penalty, the
LC Commitment in an amount up to the amount by which the LC Commitments exceed
the LC Usage at the time of such proposed termination or reduction; provided, any such
partial reduction of the LC Commitments shall be in an aggregate minimum amount of
$1,000,000 and integral multiples of$250,000 in excess ofthat amount.
(iv) Any Borrower's notice to Administrative Agent shall designate
the date (which shall be a Business Day) of such termination or reduction and the amount
of any partial reduction, and such termination or reduction of the Revolving
Commitments, Term Loan Commitments or LC Commitments shall be effective on the
date specified in such Borrower's notice and shall reduce the Revolving Commitment,
Term Loan Commitment or LC Commitment of each Lender proportionately to its Pro
Rata Share thereof.
(c) Call Protection. Notwithstanding anything herein to the contrary, in the
event that the Term Loans are prepaid or repaid in whole or in part, or the Revolving
Commitments or LC Deposits are reduced in whole or in part, in each case, on or prior to
November 15, 2008 for any reason other than a prepayment required under Section 2.14,
Borrower shall pay to the Administrative Agent for the account of the applicable Lenders a
prepayment premium on the amount so prepaid, repaid or reduced of 1.00% of the percentage of
the amount so prepaid, repaid or reduced.
2.14 Mandatory Prepayments.
(a) Asset Sales; Insurance/Condemnation Proceeds. If on any date Holdings
or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery
Event, then such Net Cash Proceeds shall be applied not later than on the third Business Day
following the receipt of such Net Cash Proceeds as set forth in Section 2.15(b) unless (i) a
Reinvestment Notice shall be delivered in respect thereof, (ii) the aggregate Net Cash Proceeds
from the Closing Date through the applicable date of determination do not exceed $10,000,000
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and (iii) no Event of Default shall have occurred and be continuing at such time; provided that,
notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be
applied as set forth in Section 2.15(b).
(b) Issuance of Equity Securities. Prior to the end of the Business Day on
which Holdings or its Subsidiaries receive of any Cash proceeds from a capital contribution to,
or the issuance of any Equity Interests of, Holdings or any of their Subsidiaries (other than (i) in
accordance with the implementation of the Plan, (ii) pursuant to any employee stock or stock
option compensation plan, (iii) to Sponsor or any of its Controlled Investment Affiliates or (iv) to
Holdings or any Subsidiary of Holdings) an aggregate amount equal to (A) 100% of such
proceeds prior to the Exit Facilities Conversion Date and (B) 50% of such proceeds on and after
the Exit Facilities Conversion Date, in each case, net of underwriting discounts and commissions
and other reasonable costs and expenses associated therewith, including reasonable legal fees
and expenses, shall be applied by Borrowers as set forth in Section 2.15(b).
(c) Issuance of Debt. Prior to the end of the Business Day on which Holdings
or any of its Subsidiaries receives any Cash proceeds from the incurrence of any Indebtedness of
Holdings or any of its Subsidiaries (other than with respect to any Indebtedness permitted to be
incurred pursuant to Section 6.1 ), an aggregate amount equal to 1 00% of such proceeds, net of
underwriting discounts and commissions and other reasonable costs and expenses associated
therewith, including reasonable legal fees and expenses, shall be applied by Borrowers as set
forth in Section 2.15(b).
(d) Consolidated Excess Cash Flow. In the event that there shall be
Consolidated Excess Cash Flow for any Fiscal Year (commencing with the Fiscal Year ending
December 31, 2007), an aggregate amount equal to (i) 75% of such Consolidated Excess Cash
Flow minus (ii) voluntary repayments of the Loans (excluding repayments of Revolving Loans
or Swing Line Loans except to the extent the Revolving Commitments are permanently reduced
in connection with such repayments), shall be applied by Borrowers as set forth in Section 2.15(b)
no later than ninety days after the end of such Fiscal Year.
(e) Revolving Loans and Swing Loans. Borrowers shall from time to time
prepay first, the Swing Line Loans, and second, the Revolving Loans to the extent necessary so
that the Total Utilization of Revolving Commitments shall not at any time exceed the Revolving
Commitments then in effect.
(f) Prepayment Certificate. Concurrently with any prepayment of the Loans
and/or reduction of the Revolving Commitments pursuant to Sections 2.14(a) through 2.14(d),
Holdings shall deliver to Administrative Agent a certificate of an Authorized Officer
demonstrating the calculation of the amount of the applicable net proceeds or Consolidated
Excess Cash Flow, as the case may be. In the event that Holdings shall subsequently determine
that the actual amount received exceeded the amount set forth in such certificate, Holdings shall
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promptly make an additional prepayment of the Loans and/or the Revolving Commitments shall
be permanently reduced in an amount equal to such excess, and Holdings shall concurrently
therewith deliver to Administrative Agent a certificate of an Authorized Officer demonstrating
the derivation of such excess.
2.15 Application of Prepayments.
(a) Application of Voluntary Prepayments by Type of Loans. Any
prepayment of any Loan pursuant to Section 2.13(a) shall be applied as specified by Borrowers
in the applicable notice of prepayment; provided, in the event Borrowers fail to specify the Loans
to which any such prepayment shall be applied, such prepayment shall be applied as follows:
first, to repay outstanding Swing Line Loans to the full extent thereof;
second, to repay outstanding Revolving Loans to the full extent thereof;
and
third, to prepay the Term Loans on a pro rata basis to reduce the scheduled
remaining Installments of principal ofthe Term Loans.
(b) Application of Mandatory Prepayments. Subject to Section 2.16(h), any
amount required to be paid pursuant to Sections 2.14(a) through 2.14(d) shall be applied as
follows:
first, to prepay the Swing Line Loans to the full extent thereof;
second, to prepay the Revolving Loans (without any corresponding
reduction of the Revolving Commitments until such time as the Term Loans have been
paid in full from and after which time all such payments shall permanently reduce the
Revolving Commitments by the amount thereof) and pay any outstanding reimbursement
obligations with respect to Letters of Credit (without any corresponding reduction of the
LC Commitments until such time as the Term Loans have been paid in full from and after
which time all such payments shall permanently reduced the LC Commitments by the
amount thereof), in each case to the full extent thereof, on a pro rata basis (in accordance
with the outstanding principal amount of the Revolving Loans and amount of outstanding
reimbursement obligations with respect to Letters of Credit);
third, to prepay the next four scheduled Installments of principal of the
Term Loans in direct order of maturity;
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fourth, to prepay the Term Loans on a pro rata basis to reduce the
scheduled remaining Installments of principal ofthe Term Loans; and
fifth, to cash collateralize, on < ~ pro rata basis, outstanding Letters of Credit
and permanently reduce the LC Commitments by the amount of such cash
collateralization.
(c) Application of Prepayments of Loans to Base Rate Loans and Eurodollar
Rate Loans. Considering each Class of Loans being prepaid separately, any prepayment thereof
shall be applied first to Base Rate Loans to the full extent thereof before application to
Eurodollar Rate Loans, in each case in a manner which minimizes the amount of any payments
required to be made by Borrowers pursuant to Section 2.18( c).
2.16 General Provisions Regarding Payments.
(a) All payments by Borrowers of principal, interest, fees and other
Obligations shall be made in Dollars in same day funds, without defense, setoff or counterclaim,
free of any restriction or condition, and delivered to Administrative Agent not later than 12:00
p.m. (New York City time) on the date due at the Principal Office designated by Administrative
Agent for the account of Lenders; for purposes of computing interest and fees, funds received by
Administrative Agent after that time on such due date shall be deemed to have been paid by
Borrowers on the next succeeding Business Day.
(b) All payments in respect of the principal amount of any Loan (other than
voluntary prepayments of Revolving Loans) shall be accompanied by payment of accrued
interest on the principal amount being repaid or prepaid, and all such payments (and, in any
event, any payments in respect of any Loan on a date when interest is due and payable with
respect to such Loan) shall be applied to the payment of interest then due and payable before
application to principal.
(c) Administrative Agent (or its agent or sub-agent appointed by it) shall
promptly distribute to each Lender at such address as such Lender shall indicate in writing, such
Lender's applicable Pro Rata Share of all payments and prepayments of principal and interest due
hereunder, together with all other amounts due thereto, including all fees payable with respect
thereto, to the extent received by Administrative Agent.
(d) Notwithstanding the foregoing proviSions hereof, if any Conversion/
Continuation Notice is withdrawn as to any Affected Lender or if any Affected Lender makes
Base Rate Loans in lieu of its Pro Rata Share of any Eurodollar Rate Loans, Administrative
Agent shall give effect thereto in apportioning payments received thereafter.
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(e) Subject to the provisos set forth in the definition of "Interest Period" as
they may apply to Revolving Loans, whenever any payment to be made hereunder with respect
to any Loan shall be stated to be due on a day that is not a Business Day, such payment shall be
made on the next succeeding Business Day and, with respect to Revolving Loans only, such
extension of time shall be included in the computation of the payment of interest hereunder or of
the Revolving Commitment fees hereunder.
(f) Borrowers hereby authorize Administrative Agent to charge each
Borrower's accounts with Administrative Agent in order to cause timely payment to be made to
Administrative Agent of all principal, interest, fees and expenses due hereunder (subject to
sufficient funds being available in its accounts for that purpose).
(g) Administrative Agent shall deem any payment by or on behalf of
Borrowers hereunder that is not made in same day funds prior to 12:00 p.m. (New York City
time) to be a non-conforming payment. Any such payment shall not be deemed to have been
received by Administrative Agent until the later of (i) the time such funds become available
funds, and (ii) the applicable next Business Day. Administrative Agent shall give prompt
telephonic notice to Borrowers and each applicable Lender (confirmed in writing) if any
payment is non-conforming. Any non-conforming payment may constitute or become a Default
or Event of Default in accordance with the terms of Section 8.1(a). Interest shall continue to
accrue on any principal as to which a non-conforming payment is made until such funds become
available funds (but in no event less than the period from the date of such payment to the next
succeeding applicable Business Day) at the rate determined pursuant to Section 2.10 from the
date such amount was due and payable until the date such amount is paid in full.
(h) If an Event of Default shall have occurred and not otherwise been waived
and the maturity of the Obligations shall have been accelerated pursuant to Section 8.1, or any
Event of Default under Section 8.l(f) or (g) shall have occurred, or as to any mandatory
prepayments under Section 2.14 at any time after an Event of Default shall have occurred and
not otherwise been waived in accordance with the terms hereof, then, in each case, all payments
or proceeds received by Agents hereunder in respect of any of the Obligations, shall be applied
in accordance with the application arrangements described in Section 7.2 of the Pledge and
Security Agreement.
2.17 Ratable Sharing. Except as provided in Section 2.14(e) or Section 2.22, the
Lenders hereby agree among themselves that if any of them shall, whether by voluntary or
mandatory payment (other than a voluntary or mandatory prepayment of Loans made and
applied in accordance with the terms hereof), through the exercise of any right of set-off or
banker's lien, by counterclaim or cross action or by the enforcement of any right under the Credit
Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under
the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of
principal, interest, amounts payable in respect of Letters of Credit, fees and other amounts then
due and owing to such Lender hereunder or under the other Credit Documents (collectively, the
"Aggregate Amounts Due" to such Lender) which is greater than the proportion received by any
73
other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender
receiving such proportionately greater payment shall (a) notify Administrative Agent and each
other Lender of the receipt of such payment and (b) apply a portion of such payment to purchase
participations (which it shall be deemed to have purchased from each seller of a participation
simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate
Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall
be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided, if all or
part of such proportionately greater payment received by such purchasing Lender is thereafter
recovered from such Lender upon the bankruptcy or reorganization of any Borrower or otherwise,
those purchases shall be rescinded and the purchase prices paid for such participations shall be
returned to such purchasing Lender ratably to the extent of such recovery, but without interest.
Each Borrower expressly consents to the foregoing arrangement and agrees that any holder of a
participation so purchased may exercise any and all rights of banker's lien, set-off or
counterclaim with respect to any and all monies owing by Borrowers to that holder with respect
thereto as fully as if that holder were owed the amount of the participation held by that holder.
2.18 Making or Maintaining Eurodollar Rate Loans.
(a) Inability to Determine Applicable Interest Rate. In the event that
Administrative Agent shall have determined (which determination shall be final and conclusive
and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any
Eurodollar Rate Loans, that by reason of circumstances affecting the London interbank market
adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on
the basis provided for in the definition of Adjusted Eurodollar Rate, Administrative Agent shall
on such date give notice (by telefacsimile or by telephone confirmed in writing) to Borrowers
and each Lender of such determination, whereupon (i) no Loans may be made as, or converted to,
Eurodollar Rate Loans until such time as Administrative Agent notifies Borrowers and Lenders
that the circumstances giving rise to such notice no longer exist, and (ii) any Funding Notice or
Conversion/Continuation Notice given by Borrowers with respect to the Loans in respect of
which such determination was made shall be deemed to be a Funding Notice for or
Conversion/Continuation Notice into Base Rate Loans.
(b) Illegality or Impracticability of Eurodollar Rate Loans. In the event that
on any date any Lender shall have determined (which determination shall be final and conclusive
and binding upon all parties hereto but shall be made only after consultation with Borrowers and
Administrative Agent) that the making, maintaining or continuation of its Eurodollar Rate Loans
(i) has become unlawful as a result of compliance by such Lender in good faith with any law,
treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty,
governmental rule, regulation, guideline or order not having the force of law even though the
failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result
of contingencies occurring after the date hereof which materially and adversely affect the
London interbank market or the position of such Lender in that market, then, and in any such
event, such Lender shall be an "Affected Lender" and it shall on that day give notice (by
telefacsimile or by telephone confirmed in writing) to Borrowers and Administrative Agent of
such determination (which notice Administrative Agent shall promptly transmit to each other
74
Lender). Thereafter (1) the obligation of the Affected Lender to make Loans as, or to convert
Loans to, Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by the
Affected Lender, (2) to the extent such determination by the Affected Lender relates to a
Eurodollar Rate Loan then being requested by Borrower pursuant to a Funding Notice or a
Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or continue such
Loan as or convert such Loan to, as the case may be) a Base Rate Loan, (3) the Affected Lender's
obligation to maintain its outstanding Eurodollar Rate Loans (the "Affected Loans") shall be
terminated at the earlier to occur of the expiration of the Interest Period then in effect with
respect to the Affected Loans or when required by law, and (4) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such termination. Notwithstanding
the foregoing, to the extent a determination by an Affected Lender as described above relates to a
Eurodollar Rate Loan then being requested by any Borrower pursuant to a Funding Notice or a
Conversion/Continuation Notice, such Borrower shall have the option, subject to the provisions
of Section 2.18(c), to rescind such Funding Notice or Conversion/Continuation Notice as to all
Lenders by giving notice (by telefacsimile or by telephone confirmed in writing) to
Administrative Agent of such rescission on the date on which the Affected Lender gives notice
of its determination as described above (which notice of rescission Administrative Agent shall
promptly transmit to each other Lender). Except as provided in the immediately preceding
sentence, nothing in this Section 2.18(b) shall affect the obligation of any Lender other than an
Affected Lender to make or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in
accordance with the terms hereof.
(c) Compensation for Breakage or Non-Commencement of Interest Periods.
Borrowers shall compensate each Lender, upon written request by such Lender (which request
shall set forth the basis for requesting such amounts), for all reasonable losses, expenses and
liabilities (including any interest paid by such Lender to Lenders of funds borrowed by it to make
or carry its Eurodollar Rate Loans and any loss, expense or liability sustained by such Lender in
connection with the liquidation or re-employment of such funds but excluding loss of anticipated
profits) which such Lender may sustain: (i) if for any reason (other than a default by such Lender
or a rescission pursuant to Section 2.18(b )) a borrowing of any Eurodollar Rate Loan does not
occur on a date specified therefor in a Funding Notice or a telephonic request for borrowing, or a
conversion to or continuation of any Eurodollar Rate Loan does not occur on a date specified
therefor in a Conversion/Continuation Notice or a telephonic request for conversion or
continuation; (ii) if any prepayment or other principal payment of, or any conversion of, any of
its Eurodollar Rate Loans occurs on a date prior to the last day of an Interest Period applicable to
that Loan; or (iii) if any prepayment of any of its Eurodollar Rate Loans is not made on any date
specified in a notice of prepayment given by any Borrower.
(d) Booking of Eurodollar Rate Loans. Any Lender may make, carry or
transfer Eurodollar Rate Loans at, to, or for the account of any of its branch offices or the office
of an Affiliate of such Lender.
(e) Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation
of all amounts payable to a Lender under this Section 2.18 and under Section 2.19 shall be made
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as though such Lender had actually funded each of its relevant Eurodollar Rate Loans through
the purchase of a Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i) of
the definition of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar
Rate Loan and having a maturity comparable to the relevant Interest Period and through the
transfer of such Eurodollar deposit from an offshore office of such Lender to a domestic office of
such Lender in the United States of America; provided, however, each Lender may fund each of
its Eurodollar Rate Loans in any manner it sees fit and the foregoing assumptions shall be
utilized only for the purposes of calculating amounts payable under this Section 2.18 and under
Section 2.19.
2.19 Increased Costs; Capital Adequacy.
(a) Compensation For Increased Costs and Taxes. Subject to the provisions
of Section 2.20 (which shall be controlling with respect to the matters covered thereby), in the
event that any Lender (which term shall include Issuing Bank for purposes of this Section 2.19(a))
shall determine (which determination shall, absent manifest error, be final and conclusive and
binding upon all parties hereto) that any law, treaty or governmental rule, regulation or order, or
any change therein or in the interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order), or any
determination of a court or Governmental Authority, in each case that becomes effective after the
date hereof, or compliance by such Lender with any guideline, request or directive issued or
made after the date hereof by any central bank or other governmental or quasi-governmental
authority (whether or not having the force of law): (i) subjects such Lender (or its applicable
lending office) to any additional Tax (other than any Tax on the overall net income of such
Lender) with respect to this Agreement or any of the other Credit Documents or any of its
obligations hereunder or thereunder or any payments to such Lender (or its applicable lending
office) of principal, interest, fees or any other amount payable hereunder; (ii) imposes, modifies
or holds applicable any reserve (including any marginal, emergency, supplemental, special or
other reserve), special deposit, compulsory loan, FDIC insurance or similar requirement against
assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or
other credit extended by, or any other acquisition of funds by, any office of such Lender (other
than any such reserve or other requirements with respect to Eurodollar Rate Loans that are
reflected in the definition of Adjusted Eurodollar Rate); or (iii) imposes any other condition
(other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending
office) or its obligations hereunder or the London interbank market; and the result of any of the
foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining
Loans hereunder participating in, issuing or maintaining Letters of Credit or LC Deposits
hereunder or to reduce any amount received or receivable by such Lender (or its applicable
lending office) with respect thereto; then, in any such case, Borrowers shall promptly pay to such
Lender, upon receipt of the statement referred to in the next sentence, such additional amount or
amounts (in the form of an increased rate of, or a different method of calculating, interest or
otherwise as such Lender in its sole discretion shall detem1ine) as may be necessary to
compensate such Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Such Lender shall deliver to Borrowers (with a copy to Administrative
Agent) a written statement, setting forth in reasonable detail the basis for calculating the
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additional amounts owed to such Lender under this Section 2.19(a), which statement shall be
conclusive and binding upon all parties hereto absent manifest error.
(b) Capital Adequacy Adjustment. In the event that any Lender (which term
shall include Issuing Bank for purposes of this Section 2.19(b )) shall have determined that the
adoption, effectiveness, phase-in or applicability after the Closing Date of any law, rule or
regulation (or any provision thereof) regarding capital adequacy, or any change therein or in the
interpretation or administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or compliance by
any Lender (or its applicable lending office) with any guideline, request or directive regarding
capital adequacy (whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency, has or would have the effect of reducing the rate of return on
the capital of such Lender or any corporation controlling such Lender as a consequence of, or
with reference to, such Lender's Loans, Revolving Commitments, LC Deposits or Letters of
Credit, or participations therein or other obligations hereunder with respect to the Loans or the
Letters of Credit to a level below that which such Lender or such controlling corporation could
have achieved but for such adoption, effectiveness, phase-in, applicability, change or compliance
(taking into consideration the policies of such Lender or such controlling corporation with regard
to capital adequacy), then from time to time, within five Business Days after receipt by
Borrowers from such Lender of the statement referred to in the next sentence, Borrowers shall
pay to such Lender such additional amount or amounts as will compensate such Lender or such
controlling corporation on an after-tax basis for such reduction. Such Lender shall deliver to
Borrowers (with a copy to Administrative Agent) a written statement, setting forth in reasonable
detail the basis for calculating the additional amounts owed to Lender under this Section 2.19(b ),
which statement shall be conclusive and binding upon all parties hereto absent manifest error.
(c) Notice. Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or receivable or
reduction in return on capital shall not constitute a waiver of such Lender's or the Issuing Bank's
right to demand such compensation; provided that Borrowers shall not be under any obligation to
compensate any Lender or the Issuing Bank under paragraph (a) or (b) of this Section 2.19 with
respect to increased costs or reductions with respect to any period prior to the date that is 180
days prior to the date of the delivery of the statement required pursuant to paragraph (a) or (b);
provided further that the foregoing limitation shall not apply to any increased costs or reductions
arising out of the retroactive application of any change in any law, treaty, governmental rule,
regulation or order within such 180-day period.
2.20 Taxes; Withholding, etc.
(a) Payments to Be Free and Clear. All sums payable by any Credit Party
hereunder and under the other Credit Documents shall (except to the extent required by law) be
paid free and clear of, and without any deduction or withholding on account of, any Tax (other
than a Tax on the overall net income of any Lender) imposed, levied, collected, withheld or
assessed by or within the United States of America or any political subdivision in or of the
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United States of America or by or within any other jurisdiction from or to which a payment is
made by or on behalf of any Credit Party or by any federation or organization of which the
United States of America or any such jurisdiction is a member at the time of payment.
(b) Withholding_of Taxes. If any Credit Party or any other Person is required
by law to make any deduction or withholding on account of any such Tax from any sum paid or
payable by any Credit Party to or for the benefit of Administrative Agent or any Lender (which
term shall include Issuing Bank for purposes of this Section 2.20(b)) under any of the Credit
Documents: (i) Borrowers shall notify Administrative Agent of any such requirement or any
change in any such requirement as soon as Borrowers become aware of it; (ii) Borrowers shall
pay or cause to be paid any such Tax before the date on which penalties attach thereto, such
payment to be made (if the liability to pay is imposed on any Credit Party) for its own account or
(if that liability is imposed on Administrative Agent or such Lender, as the case may be) on
behalf of and in the name of Administrative Agent or such Lender; (iii) the sum payable by such
Credit Party in respect of which the relevant deduction, withholding or payment is required shall
be increased to the extent necessary to ensure that, after the making of that deduction,
withholding or payment, Administrative Agent or such Lender, as the case may be, receives on
the due date a net sum equal to what it would have received had no such deduction, withholding
or payment been required or made; and (iv) within thirty days after paying any sum from which
it is required by law to make any deduction or withholding, and within thirty days after the due
date of payment of any Tax which it is required by clause (ii) above to pay, Borrowers shall
deliver to Administrative Agent evidence satisfactory to the other affected parties of such
deduction, withholding or payment and of the remittance thereof to the relevant taxing or other
authority; provided, no such additional amount shall be required to be paid to any Lender under
clause (iii) above except to the extent that any change after the date hereof (in the case of each
Lender listed on the signature pages hereof on the Closing Date) or after the effective date of the
Assignment Agreement pursuant to which such Lender became a Lender (in the case of each
other Lender) in any such requirement for a deduction, withholding or payment as is mentioned
therein shall result in an increase in the rate of such deduction, withholding or payment from that
in effect at the date hereof or at the date of such Assignment Agreement, as the case may be, in
respect of payments to such Lender.
(c) Evidence of Exemption From U.S. Withholding Tax. Each Lender that is
not a United States Person (as such term is defined in Section 7701(a)(30) of the Internal
Revenue Code) for U.S. federal income tax purposes (a "Non-US Lender") shall deliver to
Administrative Agent for transmission to Borrowers, on or prior to the Closing Date (in the case
of each Lender listed on the signature pages hereof on the Closing Date) or on or prior to the date
of the Assignment Agreement pursuant to which it becomes a Lender (in the case of each other
Lender), and at such other times as may be necessary in the determination of Borrowers or
Administrative Agent (each in the reasonable exercise of its discretion), (i) two original copies of
Internal Revenue Service Form W-8BEN or W-8ECI (or any successor forms), properly
completed and duly executed by such Lender, and such other documentation required under the
Internal Revenue Code and reasonably requested by Borrowers to establish that such Lender is
not subject to deduction or withholding of United States federal income tax with respect to any
payments to such Lender of principal, interest, fees or other amounts payable under any of the
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Credit Documents, or (ii) if such Lender is not a "bank" or other Person described in
Section 88l(c)(3) of the Internal Revenue Code and cannot deliver either Internal Revenue
Service Form W-8ECI pursuant to clause (i) above, a Certificate re Non-Bank Status together
with two original copies of Internal Revenue Service Form W-8BEN (or any successor form),
properly completed and duly executed by such Lender, and such other documentation required
under the Internal Revenue Code and reasonably requested by Borrowers to establish that such
Lender is not subject to deduction or withholding of United States federal income tax with
respect to any payments to such Lender of interest payable under any of the Credit Documents.
Each Lender that is a United States person (as such term is defmed in Section 770l(a)(30) ofthe
Internal Revenue Code) for United States federal income tax purposes (a "U.S. Lender") shall
deliver to Administrative Agent and Borrowers on or prior to the Closing Date (or, if later, on or
prior to the date on which such Lender becomes a party to this Agreement) two original copies of
Internal Revenue Service Form W-9 (or any successor form), properly completed and duly
executed by such Lender, certifying that such U.S. Lender is entitled to an exemption from
United States backup withholding tax, or otherwise prove that it is entitled to such an exemption.
Each Lender required to deliver any forms, certificates or other evidence with respect to United
States federal income tax withholding matters pursuant to this Section 2.20(c) hereby agrees,
from time to time after the initial delivery by such Lender of such forms, certificates or other
evidence, whenever a lapse in time or change in circumstances renders such forms, certificates or
other evidence obsolete or inaccurate in any material respect, that such Lender shall promptly
deliver to Administrative Agent for transmission to Borrowers two new original copies of
Internal Revenue Service Form W-8BEN or W-8ECI, or a Certificate re Non-Bank Status and
two original copies of Internal Revenue Service Form W -8BEN (or any successor form), as the
case may be, properly completed and duly executed by such Lender, and such other
documentation required under the Internal Revenue Code and reasonably requested by
Borrowers to confirm or establish that such Lender is not subject to deduction or withholding of
United States federal income tax with respect to payments to such Lender under the Credit
Documents, or notify Administrative Agent and each Borrower of its inability to deliver any
such forms, certificates or other evidence. Borrowers shall not be required to pay any additional
amount to any Non-US Lender under Section 2.20(b )(iii) if such Lender shall have failed (1) to
deliver the forms, certificates or other evidence referred to in the second sentence of this Section
2.20{c), or (2) to notify Administrative Agent and Borrowers of its inability to deliver any such
forms, certificates or other evidence, as the case may be; provided, if such Lender shall have
satisfied the requirements of the first sentence of this Section 2.20( c) on the Closing Date or on
the date of the Assignment Agreement pursuant to which it became a Lender, as applicable,
nothing in this last sentence of Section 2.20(c) shall relieve each Borrower of its obligation to
pay any additional amounts pursuant this Section 2.20 in the event that, as a result of any change
in any applicable law, treaty or governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Lender is no longer properly entitled to
deliver forms, certificates or other evidence at a subsequent date establishing the fact that such
Lender is not subject to withholding as described herein.
2.21 Obligation to Mitigate. Each Lender (which term shall include Issuing Bank for
purposes of this Section 2.21) agrees that, as promptly as practicable after the officer of such
Lender responsible for administering its Loans or Letters of Credit, as the case may be, becomes
aware of the occurrence of an event or the existence of a condition that would cause such Lender
to become an Affected Lender or that would entitle such Lender to receive payments under
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Section 2.18, 2.19 or 2.20, it will, to the extent not inconsistent with the internal policies of such
Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (a) make,
issue, fund or maintain its Credit Extensions, including any Affected Loans, through another
office of such Lender, or (b) take such other measures as such Lender may deem reasonable, if as
a result thereof the circumstances which would cause such Lender to be an Affected Lender
would cease to exist or the additional amounts which would otherwise be required to be paid to
such Lender pursuant to Section 2.18, 2.19 or 2.20 would be materially reduced and if, as
determined by such Lender in its sole discretion, the making, issuing, funding or maintaining of
such Revolving Commitments, Loans or Letters of Credit through such other office or in
accordance with such other measures, as the case may be, would not otherwise adversely affect
such Revolving Commitments, Loans or Letters of Credit or the interests of such Lender;
provided, such Lender will not be obligated to utilize such other office pursuant to this Section
2.21 unless each Borrower agrees to pay all incremental expenses incurred by such Lender as a
result of utilizing such other office as described above. A certificate as to the amount of any
such expenses payable by Borrowers pursuant to this Section 2.21 (setting forth in reasonable
detail the basis for requesting such amount) submitted by such Lender to Borrowers (with a copy
to Administrative Agent) shall be conclusive absent manifest error.
2.22 Defaulting Lenders. Anything contained herein to the contrary notwithstanding,
in the event that any Lender, other than at the direction or request of any regulatory agency or
authority, defaults (a "Defaulting Lender") in its obligation to fund (a "Funding Default") any
Revolving Loan or make an LC Deposit under Section 2.3(b)(iv) or 2.4(j) (in each case, a
"Defaulted Loan"), then (a) during any Default Period with respect to such Defaulting Lender,
such Defaulting Lender shall be deemed not to be a "Lender" for purposes of voting on any
matters (including the granting of any consents or waivers) with respect to any of the Credit
Documents; (b) to the extent permitted by applicable law, until such time as the Default Excess
with respect to such Defaulting Lender shall have been reduced to zero, (i) any voluntary
prepayment of the Revolving Loans shall, if any Borrower so directs at the time of making such
voluntary prepayment, be applied to the Revolving Loans of other Lenders as if such Defaulting
Lender had no Revolving Loans outstanding and the Revolving Exposure of such Defaulting
Lender were zero, and (ii) any mandatory prepayment of the Revolving Loans shall, if any
Borrower so directs at the time of making such mandatory prepayment, be applied to the
Revolving Loans of other Lenders (but not to the Revolving Loans of such Defaulting Lender) as
if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender, it being
understood and agreed that Borrowers shall be entitled to retain any portion of any mandatory
prepayment of the Revolving Loans that is not paid to such Defaulting Lender solely as a result
of the operation of the provisions of this clause (b); (c) such Defaulting Lender's Revolving
Commitment and outstanding Revolving Loans shall be excluded for purposes of calculating the
Revolving Commitment fee payable to Lenders in respect of any day during any Default Period
with respect to such Defaulting Lender, and such Defaulting Lender shall not be entitled to
receive any Revolving Commitment fee pursuant to Section 2.11 with respect to such Defaulting
Lender's Revolving Commitment in respect of any Default Period with respect to such
Defaulting Lender; and (d) the Total Utilization of Revolving Commitments and the aggregate
LC Exposure of all Len4ers as at any date of determination shall be calculated as if such
Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender. No Revolving
Commitment or LC Commitment of any Lender shall be increased or otherwise affected, and,
except as otherwise expressly provided in this Section 2.22, performance by each Borrower of its
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obligations hereunder and the other Credit Documents shall not be excused or othetwise
modified as a result of any Funding Default or the operation of this Section 2.22. The rights and
remedies against a Defaulting Lender under this Section 2.22 are in addition to other rights and
remedies which Borrower may have against such Defaulting Lender with respect to any Funding
Default and which Administrative Agent or any Lender may have against such Defaulting
Lender with respect to any Funding Default.
2.23 Removal or Replacement of a Lender. Anything contained herein to the
contrary notwithstanding, in the event that: (a) (i) any Lender (an "Increased-Cost Lender")
shall give notice to Borrowers that such Lender is an Affected Lender or that such Lender is
entitled to receive payments under Section 2.18, 2.19 or 2.20, (ii) the circumstances which have
caused such Lender to be an Mfected Lender or which entitle such Lender to receive such
payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within
five Business Days after Borrowers' request for such withdrawal; or (b) (i) any Lender shall
become a Defaulting Lender, (ii) the Default Period for such Defaulting Lender shall remain in
effect, and (iii) such Defaulting Lender shall fail to cure the default as a result of which it has
become a Defaulting Lender within five Business Days after Borrower's request that it cure such
default; or (c) in connection with any proposed amendment, modification, termination, waiver or
consent with respect to any of the provisions hereof as contemplated by Section 10.5(b), the
consent of Requisite Lenders shall have been obtained but the consent of one or more of such
other Lenders (each a "Non-Consenting Lender") whose consent is required shall not have been
obtained; then, with respect to each such Increased-Cost Lender, Defaulting Lender or Non-
Consenting Lender (the "Terminated Lender"), Borrowers may, by giving written notice to
Administrative Agent and any Terminated Lender of their election to do so, elect to cause such
Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its
outstanding Loans, its Commitments and its LC Commitments and LC Deposit, if any, in full to
one or more Eligible Assignees (each a "Replacement Lender") in accordance with the
provisions of Section 10.6 and Borrowers shall pay or cause to be paid the fees, if any, payable
thereunder in connection with any such assignment from an Increased Cost Lender or a Non-
Consenting Lender and the Defaulting Lender shall pay the fees, if any, payable thereunder in
connection with any such assignment from such Defaulting Lender; provided, (1) on the date of
such assignment, the Replacement Lender shall pay to Terminated Lender an amount equal to
the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding
Loans of the Terminated Lender, (B) an amount equal to the LC Deposit of such Terminated
Lender, together with all accrued LC Deposit Return thereon, (C) an amount equal to all
unreimbursed LC Disbursements that have been funded by such Terminated Lender, together
with all then unpaid interest with respect thereto at such time and (D) an amount equal to all
accrued, but theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.11
and all other amounts owing to such Terminated Lender pursuant to any other provision of any
Credit Document; (2) on the date of such assignment, Borrowers shall pay any amounts payable
to such Terminated Lender pursuant to Section 2.18( c), 2.19 or 2.20; or othetwise as if it were a
prepayment and (3) in the event such Terminated Lender is a Non-Consenting Lender, each
Replacement Lender shall consent, at the time of such assignment, to each matter in respect of
which such Terminated Lender was a Non-Consenting Lender; provided, Borrowers may not
make such election with respect to any Terminated Lender that is also an Issuing Bank unless,
prior to the effectiveness of such election, Borrowers shall have caused each outstanding Letter
of Credit issued thereby to be cancelled. Upon the prepayment of all amounts owing to any
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Terminated Lender and the termination of such Terminated Lender's Commitments and LC
Commitments, if any, such Terminated Lender shall no longer constitute a "Lender" for purposes
hereof; provided, any rights of such Terminated Lender to indemnification hereunder shall
survive as to such Terminated Lender.
2.24 Super-Priority Nature of Obligations and Lenders' Liens. Until the Exit
Facilities Conversion Date:
(a) The priority of Collateral Agents' and Lenders' Liens on the Collateral
owned by the Credit Parties shall be set forth in the Interim DIP Order, the Final DIP Order, the
Canadian Interim Order and the Canadian Final Order.
(b) All Obligations shall constitute administrative expenses of the Credit
Parties in the Cases, with administrative priority and senior secured status under Sections
364(c)(l), 364(c)(2) and 364(c)(3) of the Bankruptcy Code. Subject to the Carve-Out, such
administrative claim shall have priority over all other costs and expenses of the kinds specified in,
or ordered pursuant to, Sections 105, 326, 328, 330, 331, 503(b), 506(c), 507(a), 507(b), 546(c),
726, 1113, 1114 or any other provision of the Bankruptcy Code or otherwise, and shall at all
times be senior to the rights of the Credit Parties, the estates of the Credit Parties, and any
successor trustee or estate representative in the Chapter 11 Cases or any subsequent proceeding
or case under the Bankruptcy Code or any Canadian Insolvency Law. The Liens granted to
Lenders on the Collateral owned by the Credit Parties, and the priorities accorded to the
Obligations shall have the priority and senior secured status afforded by Sections 364( c )(1 ),
364(c)(2) and 364(c)(3) of the Bankruptcy Code (all as more fully set forth in the Interim DIP
Order and Final DIP Order), and the Canadian Court (as more fully set forth in the Canadian
Interim Order and the Canadian Final Order) senior to all claims and interests other than the
Carve-Out, Permitted Liens (to the extent provided for in the DIP Orders and Canadian DIP
Orders) and claims of the lenders and agents under the Existing DIP Credit Agreement relating
to the Existing DIP Credit Agreement Reserve Amount.
(c) Collateral Agent's Liens on the Collateral owned by the Credit Parties and
Administrative Agent's, Collateral Agent's and Lenders' respective administrative claims under
Sections 364(c)(l), 364(c)(2) and 364(c)(3) of the Bankruptcy Code afforded the Obligations
shall aiso have priority over any claims arising under Section 506(c) of the Bankruptcy Code
subject and subordinate only to the Carve-Out and the Existing DIP Credit Agreement Reserve
Amount. Except as set forth herein or in the Interim DIP Order, the Final DIP Order, the
Canadian Interim Order or the Canadian Final Order, no other claim having a priority superior or
pari passu to that granted to Administrative Agent and Lenders by the Interim DIP Order, the
Final DIP Order, the Canadian Interim Order and the Canadian Final Order shall be granted or
approved while any Obligations under this Agreement remain outstanding. Except for the Carve
Out, no costs or expenses of administration shall be imposed against Administrative Agent,
Lenders or any of the Collateral under Section 105 or 506(c) of the Bankruptcy Code, or
otherwise, and each of the Credit Parties hereby waives for itself and on behalf of its estate in
bankruptcy, any and all rights under Section 105 or 506( c), or otherwise, to assert or impose or
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seek to assert or impose, any such costs or expenses of administration against Administrative
Agent or the Lenders.
2.25 Payment of Obligations. Subject to Section 8.1 hereof, upon the maturity
(whether by acceleration or otherwise) of any of the Obligations under this Agreement or any of
the other Credit Documents, Lenders shall be entitled to immediate payment of such Obligations
without further application to or order of the Bankruptcy Court or the Canadian Court.
2.26 No Discharge; Survival of Claims. The Credit Parties agree that (a) the
Obligations hereunder shall not be discharged by (i) the entry of an order confirming a plan of
reorganization in any Case (and Credit Parties pursuant to Section ll41(d)(4) of the Bankruptcy
Code, hereby waive any such discharge) or under Canadian Insolvency Law, (ii) converting any
of the Cases to a chapter 7 case, (iii) dismissing any of the Cases, or (iv) terminating any of the
proceedings under the CCAA in respect of any of the Canadian Credit Parties or the appointment
of any monitor, trustee in bankruptcy, interim receiver, receiver or receiver-manager or similar
officer or agent with respect to any of the Canadian Credit Parties and (b) the super-priority
administrative claim granted to Administrative Agent and Lenders pursuant to the Interim DIP
Order and the Final DIP Order and the Liens granted to Administrative Agent pursuant to the
Interim DIP Order, the Final DIP Order, the Canadian Interim Order and the Canadian Final
Order shall not be affected in any manner by the entry of an order confirming a plan of
reorganization in any Case or under Canadian Insolvency Law.
2.27 Waiver of any Priming Rights. Upon the Closing Date, and on behalf of
themselves and their estates, and for so long as any Obligations shall be outstanding, Credit
Parties hereby irrevocably waives any right, pursuant to Sections 364(c) or 364(d) of the
Bankruptcy Code or otherwise, to grant any Lien of equal or greater priority than the Liens
securing the Obligations, or to approve a claim of equal or greater priority than the Obligations,
except as expressly permitted under the Interim DIP Order or the Final DIP Order.
2.28 Co-Borrowers.
(a) Joint and Several Liability. All Obligations of Borrowers under this
Agreement and the other Credit Documents shall be joint and several Obligations of each
Borrower. Anything contained in this Agreement and the other Credit Documents to the
contrary notwithstanding, the Obligations of each Borrower hereunder, solely to the extent that
such Borrower did not receive proceeds of Loans from any borrowing hereunder, shall be limited
to a maximum aggregate amount equal to the largest amount that would not render its
Obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under
Section 548 of the Bankruptcy Code, 11 U.S.C. 548, or any applicable provisions of
comparable state law (collectively, the "Fraudulent Transfer Laws"), in each case after giving
effect to all other liabilities of such Borrower, contingent or otherwise, that are relevant under the
Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Borrower in
respect of intercompany Indebtedness to any other Credit Party or Affiliates of any other Credit
Party to the extent that such Indebtedness would be discharged in an amount equal to the amount
paid by such Credit Party hereunder) and after giving effect as assets to the value (as determined
under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation or
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contribution of such Borrower pursuant to (i) applicable law or (ii) any agreement providing for
an equitable allocation among such Borrower and other Affiliates of any Credit Party of
Obligations arising under Guaranties by such parties.
(b) Subrogation. Until the Obligations (other than contingent indemnification
obligations for which no claim has been made) shall have been paid in full in Cash, each
Borrower shall withhold exercise of any right of subrogation, contribution or any other right to
enforce any remedy which it now has or may hereafter have against the other Borrower or any
other guarantor of the Obligations. Each Borrower further agrees that, to the extent the waiver of
its rights of subrogation, contribution and remedies as set forth herein is found by a court of
competent jurisdiction to be void or voidable for any reason, any such rights such Borrower may
have against the other Borrower, any col1ateral or security or any such other guarantor, shall be
junior and subordinate to any rights Collateral Agent may have against the other Borrower, any
such collateral or security, and any such other guarantor. Borrowers under this Agreement and
the other Credit Documents together desire to allocate among themselves, in a fair and equitable
manner, their Obligations arising under this Agreement and the other Credit Documents.
Accordingly, in the event any payment or distribution is made on any date by any Borrower
under this Agreement and the other Credit Documents (a "Funding Borrower") that exceeds its
Obligation Fair Share (as defined below) as of such date, that Funding Borrower shall be entitled
to a contribution from the other Borrower in the amount of such other Borrowers' Obligation Fair
Share Shortfall (as defined below) as of such date, with the result that all such contributions will
cause Borrowers' Obligation Aggregate Payments (as defined below) to equal its Obligation Fair
Share as of such date. "Obligation Fair Share" means, with respect to a Borrower as of any
date of determination, an amount equal to (i) the ratio of (X) the Obligation Fair Share
Contribution Amount (as defined below) with respect to such Borrower to (Y) the aggregate of
the Obligation Fair Share Contribution Amounts with respect to all Borrowers, multiplied by (ii)
the aggregate amount paid or distributed on or before such date by all Funding Borrowers under
this Agreement and the other Credit Documents in respect of the Obligations guarantied.
"Obligation Fair Share ShortfaJI" means, with respect to a Borrower as of any date of
determination, the excess, if any, of the Obligation Fair Share of such Borrower over the
Obligation Aggregate Payments of such Borrower. "Obligation Fair Share Contribution
Amount" means, with respect to a Borrower as of any date of determination, the maximum
aggregate amount of the Obligations of such Borrower under this Agreement and the other Credit
Documents that would not render its Obligations hereunder or thereunder subject to avoidance as
a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or
any comparable applicable provisions of state law; provided that, solely for purposes of
calculating the Obligation Fair Share Contribution Amount with respect to any Borrower for
purposes of this Section 2.28, any assets or liabilities of such Credit Party arising by virtue of
any rights to subrogation, reimbursement or indemnification or any rights to or Obligations of
contribution hereunder shall not be considered as assets or liabilities of such Borrower.
"Obligation Aggregate Payments" means, with respect to a Borrower as of any date of
cietermination, an amount equal to (i) the aggregate amount of all payments and distributions
made on or before such date by such Borrower in respect of this Agreement and the other Credit
Documents (including in respect of this Section 2.28) minus (ii) the aggregate amount of all
payments received on or before such date by such Borrower from the other Borrower as
contributions under this Section 2.28. The amounts payable as contributions hereunder shall be
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determined as of the date on which the related payment or distribution is made by the applicable
Funding Borrower. The allocation among Borrowers of their Obligations as set forth in this
Section 2.28 shall not be construed in any way to limit the liability of any Borrower hereunder or
under any Credit Document.
(c) Representative of Borrowers. Systems hereby appoints Holdings as its
agent, attorney-in-fact and representative for the purpose of (i) making any borrowing requests or
other requests required under this Agreement, (ii) the giving and receipt of notices by and to
Borrowers under this Agreement, (iii) the delivery of all documents, reports, financial statements
and written materials required to be delivered by Borrowers under this Agreement, and (iv) all
other purposes incidental to any of the foregoing. Systems agrees that any action taken by
Holdings as the agent, attorney-in-fact and representative of Systems shall be binding upon
Systems to the same extent as if directly taken by Systems.
(d) Allocation of Loans. All Loans shall be made to Holdings as borrower
unless a different allocation of the Loans as between Holdings and Systems with respect to any
borrowing hereunder is included in the applicable Funding Notice.
2.29 Judgment Currency. If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due from any Credit Party hereunder in the currency expressed to be
payable herein (the "specified currency") into another currency, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used shall be that at which
in accordance with normal banking procedures Administrative Agent could purchase the
specified currency with such other currency at Administrative Agent's main New York City
office on the Business Day preceding that on which final, non appealable judgment is given. The
obligations of each Credit Party in respect of any sum due to any Lender or Administrative
Agent hereunder shall, notwithstanding any judgment in a currency other than the specified
currency, be discharged only to the extent that on the Business Day following receipt by such
Lender or Administrative Agent (as the case may be) of any sum adjudged to be so due in such
other currency such Lender or Administrative Agent (as the case may be) may in accordance
with normal, reasonable banking procedures purchase the specified currency with such other
currency. If the amount of the specified currency so purchased is less than the sum originally
due to such Lender or Administrative Agent, as the case may be, in the specified currency, each
Credit Party agrees, to the fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or Administrative Agent, as the
case may be, against such loss, and if the amount of the specified currency so purchased exceeds
(a) the sum originally due to any Lender or Administrative Agent, as the case may be, in the
specified currency and (b) any amounts shared with other Lenders as a result of allocations of
such excess as a disproportionate payment to such Lender under Section 2.18, such Lender or
Administrative Agent, as the case may be, agrees to remit such excess to such Credit Party.
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SECTION 3. CONDITIONS PRECEDENT AND CONVERSION TO EXIT FACILITIES
3.1 Closing Date. The obligation of each Lender to make a Credit Extension on the
Closing Date is subject to the satisfaction, or waiver in accordance with Section 10.5, of the
following conditions on or before the Closing Date:
(a) Credit Documents. Administrative Agent shall have received sufficient
copies of each Credit Document originally executed and delivered by each applicable Credit
Party for each Lender.
(b) Interim DIP Order, Canadian DIP Order and Other Bankruptcy Court
Filings. The Bankruptcy Court shall have entered the Interim DIP Order, which shall be certified
by the Clerk of the Bankruptcy Court as having been duly entered, and the Interim DIP Order
shall be in full force and effect, shall not be subject to a motion for reconsideration and shall not
have been vacated, reversed, modified, amended or stayed without the written consent of the
Requisite Lenders and, if the Interim DIP Order is the subject of a pending appeal or motion for
reconsideration in any respect, neither the making of the Loans nor the performance by the
Credit Parties of their respective obligations under the Credit Documents shall be the subject of a
presently effective stay pending appeal. The Credit Parties shall have complied in full with the
notice and all other requirements as provided for under the Interim DIP Order. The Canadian
Court shall have issued the Canadian Interim Order and the Canadian Interim Order shall be in
full force and effect, shall not be subject to a motion for reconsideration and shall not have been
vacated, reversed, modified, amended or stayed without the written consent of the Requisite
Lenders and, if the Canadian Interim Order is the subject of a pending appeal or motion for
reconsideration in any respect, neither the making of the Loans nor the performance by the
Credit Parties of their respective obligations under the Credit Documents shall be the subject of a
presently effective stay pending appeal. All orders entered by the Bankruptcy Court pertaining
to cash management and adequate protection shall and all other motions and documents filed or
to be filed with, and submitted to, the Bankruptcy Court in connection therewith shall be in form
and substance reasonably satisfactory to Syndication Agent and Administrative Agent.
(c) Organizational Documents; Incumbency. Administrative Agent shall have
received (i) sufficient copies of each Organizational Document executed and delivered by each
Credit Party, as applicable, and, to the extent applicable, certified as of a recent date by the
appropriate governmental official, each dated the Closing Date or a recent date prior t h e r e t o ~ (ii)
signature and incumbency certificates of the officers of such Person executing the Credit
Documents to which it is a party; (iii) resolutions of the Board of Directors or similar governing
body of each Credit Party approving and authorizing the execution, delivery and performance of
this Agreement and the other Credit Documents to which it is a party or by which it or its assets
may be bound as of the Closing Date, certified as of the Closing Date by its secretary or an
assistant secretary as being in full force and effect without modification or amendment; (iv) a
good standing certificate or equivalent from the applicable Governmental Authority of each
Credit Party's jurisdiction of incorporation, organization or formation, each dated a recent date
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prior to the Closing Date; and (v) such other documents as Administrative Agent may reasonably
request.
(d) Existing Indebtedness. On the Closing Date, Holdings and its Subsidiaries
shall have (i) repaid in full all Existing Indebtedness (other than (x) any contingent obligations
which by their terms survive the termination of the Existing DIP Credit Agreement and the other
documents executed in connection therewith and (y) outstanding letters of credit issued under the
Existing DIP Credit Agreement which are either cash collateralized or secured by a Letter of
Credit issued hereunder), (ii) terminated any commitments to lend or make other extensions of
credit thereunder, (iii) delivered to Administrative Agent and Syndication Agent all documents
or instruments necessary (including a pay-off letter in form and substance reasonably satisfactory
to Administrative Agent) to release all Liens securing Existing Indebtedness or other obligations
of Holdings and its Subsidiaries thereunder being repaid on the Closing Date, and (iv) made
arrangements reasonably satisfactory to Administrative Agent and Syndication Agent with
respect to the cancellation or cash collateralization of any letters of credit outstanding thereunder
or the issuance of Letters of Credit to support the obligations of Holdings and its Subsidiaries
with respect thereto. On the Closing Date, after giving effect to the repayment of the Existing
Indebtedness, Holdings and its Subsidiaries will have no Indebtedness other than (A) the
Obligations, (B) letters of credit outstanding under the Existing DIP Credit Agreement and (C)
other Indebtedness described in Schedule 6.1.
(e) Transaction Costs. On or prior to the Closing Date, Borrowers shall have
delivered to Administrative Agent Borrower's reasonable best estimate of the Transaction Costs
(other than fees payable to any Agent).
(f) Governmental Authorizations and Consents. Each Credit Party shall have
obtained all Governmental Authorizations and all consents of other Persons, in each case that are
necessary or advisable in connection with the transactions contemplated by the Credit
Documents to occur on or before the Closing Date and each of the foregoing shall be in full force
and effect and in form and substance reasonably satisfactory to Administrative Agent and
Syndication Agent.
(g) Personal Property Collateral. In order to create in favor of Collateral
Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the
personal property Collateral, the Credit Parties shall have delivered to Collateral Agent:
(i) evidence reasonably satisfactory to Collateral Agent of the
compliance by each Credit Party of their obligations under the Pledge and Security
Agreement, the Canadian Pledge and Security Agreement and the Quebec Security and
the other Collateral Documents to execute, deliver and file or publish UCC and Canadian
PPSA financing statements and other evidence of registration or publication and delivery
of originals of securities, instruments and chattel paper along with necessary stock
powers or endorsements;
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(ii) a completed Collateral Questionnaire dated the Closing Date and
executed by an Authorized Officer of each Credit Party, together with all attachments
contemplated thereby together with (A) the results of a recent search, by a Person
satisfactory to Collateral Agent, of all effective UCC and Canadian PPSA financing
statements (or equivalent filings) made with respect to any personal or mixed property of
any Credit Party in the jurisdictions specified in the Collateral Questionnaire, together
with copies of all such filings disclosed by such search, and (B) UCC and Canadian
PPSA termination statements (or similar documents) duly authorized and, if applicable,
executed by all applicable Persons for filing in all applicable jurisdictions as may be
necessary to terminate any effective UCC or Canadian PPSA financing statements (or
equivalent filings) disclosed in such search (other than any such financing statements in
respect ofPermitted Liens);
(iii) a list setting forth the vehicle identification numbers for each
vehicle owned by each Canadian Credit Party;
(iv) evidence reasonably satisfactory to Collateral Agent that
Borrowers have retained, at its sole cost and expense, a service provider acceptable to
Collateral Agent for the tracking of all of UCC or Canadian PPSA financing statements
(or equivalent filings) of Borrowers and the Guarantors and that will provide notification
to Collateral Agent of, among other things, the upcoming lapse or expiration thereof.
(h) Environmental Reports. Administrative Agent and Syndication Agent
shall have received reports and other information, in form, scope and substance satisfactory to
Administrative Agent and Syndication Agent, regarding environmental matters relating to the
Facilities, which reports shall include copies of any and all existing Phase I Environmental Site
Assessment Reports for each of the Facilities.
(i) Financial Statements; Projections. Lenders shall have received from
Holdings (i) the Historical Financial Statements, (ii) pro forma consolidated balance sheets of
Holdings and its Subsidiaries as at the Closing Date, and reflecting the consummation of the
refinancing of the Existing Indebtedness, the related financings and the other transactions
contempiated by ihe Credit Documents to occur on or prior to the Closing Date, which pro forma
balance sheet shall be in form and substance reasonably satisfactory to Administrative Agent and
Syndication Agent, and (iii) the Projections.
(j) Evidence of Insurance. Collateral Agent shall have received a certificate
from Borrower's insurance broker or other evidence reasonably satisfactory to it that all
insurance required to be maintained pursuant to Section 5.5 is in full force and effect, together
with endorsements naming the Collateral Agent, for the benefit of Secured Parties, as additional
insured and loss payee thereunder to the extent required under Section 5.5.
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(k) Opinions of Counsel to Credit Parties. Lenders and their respective
counsel shall have received originally executed copies of the favorable written opinions of (i)
Troutman Sanders LLP, counsel for the credit parties and (ii) Gowling Lafleur Henderson LLP,
special Canadian counsel for the Credit Parties, in each case as to such matters as Administrative
Agent or Syndication Agent may reasonably request, dated as of the Closing Date and otherwise
in form and substance reasonably satisfactory to Administrative Agent and Syndication Agent
(and each Credit Party hereby instructs such counsel to deliver such opinions to Agents and
Lenders).
(1) Fees. Borrowers shall have paid to Agents the fees payable on the Closing
Date referred to in Section 2.11(t).
(m) Closing Date Certificate. Borrowers shall have delivered to Administrative
Agent and Syndication Agent an originally executed Closing Date Certificate, together with all
attachments thereto.
(n) Closing Date. Lenders shall have made the initial Term Loans to
Borrowers on or before April 13, 2007.
( o) No Litigation. There shall not exist any action, suit, investigation,
litigation, proceeding, hearing (other than the Cases) or other legal or regulatory developments,
pending or threatened in any court or before any arbitrator or Governmental Authority that, in the
reasonable opinion of Administrative Agent and Syndication Agent, singly or in the aggregate,
materially impairs the transactions contemplated by the Credit Documents, or that could
reasonably be expected to have a Material Adverse Effect.
(p) Letter of Direction. Administrative Agent shall have received a duly
executed letter of direction from Borrowers addressed to GSCP and Administrative Agent, on
behalf of itself and Lenders, directing the disbursement on the Closing Date of the proceeds of
the Loans made on such date.
( q) Liquidity. After giving effect to the initial borrowings hereunder, the
Syndication Agent shall be satisfied that on the Closing Date (i) the excess of (x) the aggregate
Revolving Commitments over (y) the Total Utilization of the Revolving Commitments shall be
no less than $35,000,000 and (ii) the amount of available unrestricted Cash and Cash Equivalents
of Borrowers and the other Credit Parties on such date shall not be less than (x) the aggregate
amount ofthe Term Loans made on the Closing Date less (y) $205,000,000.
(r) Patriot Act. At least 5 Business Days prior to the Closing Date, the
Syndication Agent shall have received all documentation and other information required by bank
regulatory authorities under applicable "know-your-customer" and anti-money laundering rules
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and regulations, including the U.S.A. Patriot Act (Title lii of Pub. L. 107-56 (signed into law
October 26, 2001)) (the "Act").
3.2 Conditions to Each Credit Extension.
(a) Conditions Precedent. The obligation of each Lender to make any Loan,
or Administrative Agent to cause Issuing Bank to issue any Letter of Credit, on any Credit Date,
including the Closing Date, are subject to the satisfaction, or waiver in accordance with
Section 10.5, ofthe following conditions precedent:
(i) Administrative Agent shall have received a fully executed and
delivered Funding Notice or Issuance Notice, as the case may be;
(ii) after making the Credit Extensions requested on such Credit
Date, (i) the aggregate amount of Term Loans made hereunder shall not exceed the Term
Loan Commitments then in effect and (ii) the Total Utilization of Revolving
Commitments shall not exceed the Revolving Commitments then in effect;
(iii) after making the Credit Extensions requested on such Credit
Date, the total LC Usage shall not exceed the total LC Deposits;
(iv) as of such Credit Date, the representations and warranties
contained herein and in the other Credit Documents shall be true and correct in all
material respects on and as of that Credit Date to the same extent as though made on and
as of that date, except to the extent such representations and warranties specifically relate
to an earlier date, in which case such representations and warranties shall have been true
and correct in all material respects on and as of such earlier date;
(v) as of such Credit Date, no event shall have occurred and be
continuing or would result from the consummation of the applicable Credit Extension
that would constitute an Event of Default or a Default;
(vi) as of such Credit Date, to the extent such Credit Date occurs on
or after the Exit Facilities Conversion Date, each Credit Party represents and warrants
that such Credit Party is and, upon the incurrence of any Obligation by such Credit Party
on such Credit Date, will be, Solvent;
(vii) on or before the date of issuance of any Letter of Credit,
Administrative Agent shall have received all other information required by the applicable
Issuance Notice, and such other documents or information as Issuing Bank may
reasonably require in connection with the issuance of such Letter of Credit; and
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(viii) after gtvmg effect to each Revolving Loan and the use of
proceeds thereof the aggregate Cash and Cash Equivalents of Holdings and its
Subsidiaries will not exceed $15,000,000.
On or after the Exit Facilities Conversion Date, any Agent or Requisite Lenders shall be entitled,
but not obligated to, request and receive, prior to the making of any Credit Extension, additional
information reasonably satisfactory to the requesting party confirming the satisfaction of any of
the foregoing if, in the good faith judgment of such Agent or Requisite Lender such request is
warranted under the circumstances.
(b) Notices. Any Notice shall be executed by an Authorized Officer in a
writing delivered to Administrative Agent. In lieu of delivering a Notice, Borrowers may give
Administrative Agent telephonic notice by the required time of any proposed borrowing,
conversion/continuation or issuance of a Letter of Credit, as the case may be; provided each such
notice shall be promptly confirmed in writing by delivery of the applicable Notice to
Administrative Agent on or before the applicable date of borrowing, continuation/conversion or
issuance. Neither Administrative Agent nor any Lender shall incur any liability to Borrowers in
acting upon any telephonic notice referred to above that Administrative Agent believes in good
faith to have been given by a duly authorized officer or other person authorized on behalf of
Borrowers or for otherwise acting in good faith.
3.3 Exit Facilities Option. The Lenders hereby grant Holdings the option (the "Exit
Facilities Option") to cause the Credit Facilities to be converted to Exit Facilities in accordance
with Section 3.5 upon the Plan Effective Date, such option being irrevocable but subject to the
satisfaction of the conditions set forth in Section 3.4 of this Agreement.
3.4 Conditions to Exit Facilities Option. On and after the Exit Facilities
Conversion Date, the obligations of each Lender to continue to make or hold Loans (or of
Administrative Agent to cause Issuing Bank to issue any Letter of Credit on and after the Exit
Facilities Conversion Date) and to extend the maturity thereof, as respectively set forth in the
definitions of "Revolving Commitment Termination Date", "LC Commitment Termination Date"
and "Term Loan Commitment Termination Date" are subject to the satisfaction, or waiver in
accordance with Section 1 0.5, of the following conditions on or before the Exit Facilities
Conversion Date:
(a) Outside Conversion Date. The Exit Facilities Conversion Date shall occur
not later than September 30, 2007.
(b) Real Estate Collateral. In order to create in favor of Collateral Agent, for
the benefit of Secured Parties, a valid and, subject to any filing and/or recording referred to
herein, perfected First Priority security interest in certain Real Estate Assets, Collateral Agent
shall have received from Borrowers and each applicable Guarantor on or before the Exit
Conversion Date (or such later date as Collateral Agent may agree in its sole discretion):
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(i) fully executed and notarized Mortgages, in proper form for
recording in all appropriate places in all applicable jurisdictions, encumbering each
Material Real Estate Asset (each, an "Initial Mortgaged Property");
(ii) an opm10n of counsel (which counsel shall be reasonably
satisfactory to Collateral Agent) in each jurisdiction in which an Initial Mortgaged
Property is located with respect to the enforceability of the form(s) of Mortgages to be
recorded in such state and such other matters as Collateral Agent may reasonably request,
in each case in form and substance reasonably satisfactory to Collateral Agent;
(iii) in the case of each Leasehold Property that is an Initial
Mortgaged Property, (1) a Landlord Consent and Estoppel and (2) evidence that such
Leasehold Property is a Recorded Leasehold Interest;
(iv) in the case of each Leasehold Property that is not an Initial
Mortgaged Property and that is, in the reasonable opinion of the Collateral Agent,
material to the operations of Holdings, Borrowers shall use commercially reasonable
efforts to obtain a fully executed and notarized Subordination, Non-Disturbance and
Attornment Agreement in form and substance reasonably satisfactory to the Collateral
Agent;
(v) (a) ALTA (or equivalent) mortgagee title insurance policies or
unconditional commitments therefor issued by one or more title companies reasonably
satisfactory to Collateral Agent with respect to each Initial Mortgaged Property (each, a
"Title Policy"), in amounts not less than the fair market value of each Initial Mortgaged
Property, together with a title report issued by a title company with respect thereto, dated
not more than thirty days prior to the Exit Facilities Conversion Date and copies of all
recorded documents listed as exceptions to title or otherwise referred to therein, each in
form and substance reasonably satisfactory to Collateral Agent and (b) evidence
satisfactory to Collateral Agent that such Credit Party has paid to the title company or to
the appropriate governmental authorities all expenses and premiums of the title company
and all other sums required in connection with the issuance of each Title Policy and all
recording and stamp taxes (including mortgage recording and intangible taxes) payable in
connection with recording the Mortgages for each Initial Mortgaged Property in the
appropriate real estate records;
(vi) evidence of flood insurance with respect to each Flood Hazard
Property that is located in a community that participates in the National Flood Insurance
Program, in each c:ase in compliance with any applicable regulations of the Board of
Governors, in form and substance reasonably satisfactory to Collateral Agent; and
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(vii) to the extent necessary to permit the issuance by the title
company of a lender's policy of title insurance without a survey exception, an ALTA (or
equivalent) land title survey of all Initial Mortgaged Properties which are not Leasehold
Properties, certified to the Collateral Agent and the title company and dated not more
than sixty days prior to the Exit Facilities Conversion Date or such other date as
Administrative Agent and the title company may approve.
Notwithstanding the foregoing, with respect to any Leasehold Property, if compliance with the
provisions of this Section 3.4(b) requires the consent of or other action by the landlord with
respect to such Leasehold Property and Borrowers and the applicable Subsidiaries of Borrowers
have exercised commercially reasonable efforts (which shall not in any case require any Credit
Party to agree to any concessions) to obtain such consent or other action but are unable to do so,
then such compliance shall not be required as a condition to the conversion of the Credit
Facilities to the Exit Facilities.
(c) Personal Property Collateral. In order to create in favor of Collateral
Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the
personal property Collateral, Collateral Agent shall have received:
(i) evidence reasonably satisfactory to Collateral Agent of the
compliance by each Credit Party of their obligations under the Pledge and Security
Agreement, the Canadian Pledge and Security Agreement and the Quebec Hypothec and
the other Collateral Documents (including, without limitation, their obligations to
authorize, execute (if applicable), deliver and file or publish UCC and Canadian PPSA
financing statements and other evidence of registration or publication, originals of
securities, instruments and chattel paper and any agreements governing deposit and/or
securities accounts to the extent required therein);
(ii) a completed updated Collateral Questionnaire dated the Exit
Facilities Conversion Date and executed by an Authorized Officer of each Credit Party,
together with all attachments contemplated thereby together with (A) the results of a
recent search, by a Person satisfactory to Collateral Agent, of all effective UCC and
Canadian PPSA financing statements (or equivalent filings) made with respect to any
personal or mixed property of any Credit Party in the jurisdictions specified in the
Collateral Questionnaire, together with copies of all such filings disclosed by such search,
and (B) UCC and Canadian PPSA termination statements (or similar documents) duly
authorized and, if applicable, executed by all applicable Persons for filing in all
applicable jurisdictions as may be necessary to terminate any effective UCC and
Canadian PPSA financing statements (or equivalent filings) disclosed in such search
(other than any such financing statements in respect of Permitted Liens);
(iii) fully executed and notarized Intellectual Property Security
Agreements, in proper form for filing or recording in all appropriate places in all
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applicable jurisdictions, memorializing and recording the encumbrance of the Intellectual
Property Assets listed in Schedule 4. 7 to the Pledge and Security Agreement;
(iv) evidence that each Credit Party shall have executed and
delivered any intercompany notes evidencing Indebtedness permitted to be incurred
pursuant to Section 6.1 (b) and made or caused to be made any other filing and recording
(other than as set forth herein) reasonably required by Collateral Agent;
(v) opmwns of counsel (which counsel shall be reasonably
satisfactory to Collateral Agent) with respect to the creation and perfection of the security
interests in favor of Collateral Agent in such Collateral and such other matters governed
by the laws of each jurisdiction in which any Credit Party or any personal property
Collateral is located as Collateral Agent may reasonably request; and
(vi) evidence that each Credit Party shall have taken or caused to be
taken any other action, executed and delivered or caused to be executed and delivered
any other agreement, document and instrument (including without limitation, (i) a
Landlord Personal Property Collateral Access Agreement executed by the landlord of any
Leasehold Property and by the applicable Credit Party and (ii) any intercompany notes
evidencing Indebtedness permitted to be incurred pursuant to Section 6.1 (b)) and made or
caused to be made any other filing and recording (other than as set forth herein)
reasonably required by Collateral Agent.
Notwithstanding the foregoing, with respect to any Leasehold Property, if compliance with the
provisions of this Section 3.4(c) requires the consent of or other action by the landlord with
respect to such Leasehold Property and Borrowers and the applicable Subsidiaries of Borrowers
have exercised commercially reasonable efforts (which shall not in any case require any Credit
Party to agree to any concessions) to obtain such consent or other action but are unable to do so,
then such compliance shall not be required as a condition to the conversation of the Credit
Facilities to the Exit Facilities.
(d) Payment of Fees. Borrowers shall have paid to the Agents all properly
documented fees and expenses (including reasonable fees and expenses of counsel payable
hereunder) due and payable on or before the Exit Facilities Conversion Date (including all such
fees referred to in Section 2.11 (f)).
(e) Plan Conditions. The following events or transactions shall have occurred,
in each case on terms and conditions reasonably satisfactory to Administrative Agent:
(i) The Plan and all documents executed in cormection with the
implementation of the Plan shall be reasonably satisfactory in form and substance to
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Administrative Agent and Syndication Agent (it being understood that the plan of
reorganization filed with the Bankruptcy Court on March 2, 2007 is reasonably
satisfactory to Administrative Agent and Syndication Agent);
(ii) The capitalization of Holdings and its Subsidiaries and the
sources and uses of the funds of Holdings and its Subsidiaries on the Plan Effective Date
and in connection with the implementation of the Plan shall be consistent in all material
respects with the pro forma financial statements and other information delivered to
Lenders prior to the date of this Agreement;
(iii) All conditions precedent to the effectiveness of the Plan shall
have been met (or waived), the Plan Effective Date and substantial consummation of the
Plan shall have occurred (or shall be scheduled to occur upon conversion of the Credit
Facilities to the Exit Facilities on the Exit Facilities Conversion Date), and the Plan shall
be in full force and effect;
(iv) The Bankruptcy Court shall have entered an order in form and
substance satisfactory to Administrative Agent and Syndication Agent confirming the
Plan and approving and authorizing the transactions contemplated thereby and the
granting of liens under the Credit Documents and containing a release in favor of
Administrative Agent and the Syndication Agent and the Lenders and their respective
affiliates (the "Confirmation Order") and such Confirmation Order shall be final, valid,
subsisting and continuing and shall not have been reversed, amended, stayed or otherwise
modified and shall not be subject to a motion to stay and shall be in full force and effect;
(v) there shall be no motion to revoke confirmation of the Plan
pending and there shall be no petition for rehearing or certiorari pending in respect of
such motion;
(vi) all appeal periods relating to the Confirmation Order shall have
expired, and there shall be no petition for rehearing or certiorari pending in respect of the
Confirmation Order which could reasonably be expected, in the reasonable judgment of
Administrative Agent, to adversely affect the Plan; and
(vii) the Canadian Court shall have issued the Canadian Confirmation
Order; the Canadian Confirmation Order shall be in full force and effect, shall not have
been reversed, vacated or stayed and shall not have been amended, supplemented, varied
or otherwise modified without the prior written consent of the Requisite Lenders; and all
appeal periods relating to the Canadian Confirmation Order shall have expired and no
motion or application for leave to appeal shall have been made and notice of appeal shall
have been filed in respect of the Canadian Confirmation Order.
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(f) Sponsor Ownership. On the Plan Effective Date, (i) Sponsor and its
Controlled Investment Affiliates shall beneficially own and control at least 40% on a fully
diluted basis of the economic and voting interests in the Equity Interests of Holdings, (ii)
Sponsor and its Controlled Investment Affiliates shall have elected a majority of the members of
the post-effective board of directors (or similar governing body) of Holdings and (iii) no Person
or "group" (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act) shall
beneficially own on a fully diluted basis voting and/or economic interests in the Equity Interests
of Holdings greater than the beneficial ownership on a fully diluted basis of the voting and/or
economic interests in the Equity Interests of Holdings owned by the Sponsor and its Controlled
Investment Affiliates on such date;
(g) Financial Statements. Administrative Agent shall have received a pro
forma consolidated balance sheet and any other applicable financial statements of Holdings and
its Subsidiaries as at the Exit Facilities Conversion Date and reflecting the consummation of the
Plan and the other transactions contemplated by the Plan to occur on or prior to the Exit
Facilities Conversion Date, together with a Financial Officer Certification of Holdings certifying
that such balance sheet and other financial statements accurately present the financial position of
Holdings and its Subsidiaries, in accordance with GAAP, as of such date.
(h) Business Plan. Administrative Agent shall have received an updated
business plan showing pro forma compliance with the financial covenants set forth in Section 6.7
through the Maturity Date.
(i) Legal Opinions. Lenders and their respective counsel shall have received
originally executed copies of the favorable written opinions of Latham & Watkins LLP,
Troutman Sanders LLP or other counsel for the Credit Parties and Gowling Lafleur Henderson
LLP, special Canadian counsel for the Credit Parties, in each case as to such matters as
Administrative Agent or Syndication Agent may reasonably request and dated as of the Exit
Facilities Conversion Date (and each Credit Party hereby instructs such counsel to deliver such
opinions to Agents and Lenders).
(j) Ratings. The Credit Facilities, after giving effect to the Exit Facilities
Conversion Date, shall have been assigned updated credit ratings by Moody's and S&P.
(k) Notice of Conversion. Holdings shall have given the Lenders not less than
ten Business Days' prior written notice of the exercise of the Exit Facilities Option.
(1) Solvency Certificate. Administrative Agent and Syndication Agent shall
have received a Solvency Certificate from Holdings and in form, scope and substance reasonably
satisfactory to Administrative Agent and Syndication Agent, and demonstrating that after giving
effect to the consummation of the transactions contemplated by the Plan, the borrowings
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hereunder and under the Second Lien Credit Agreement and any rights of contribution, Holdings
and its Subsidiaries, taken as a whole, are and will be Solvent.
(m) Officer's Certificate. Borrowers shall have delivered to Administrative
Agent and Syndication Agent an originally executed officer's certificate certifying as to the
matters set forth in Sections 3.4(e)(iii), (f), (p)(i), (q), (r), (s), (t) and (u).
(n) Collateral Servicing Agreement. Administrative Agent shall have
received the Collateral Servicing Agreement, executed and delivered by Corporation Service
Company, the Second Lien Collateral Agent and each Credit Party.
( o) Affirmation Agreement. Administrative Agent shall have received the
Affirmation Agreement, executed and delivered in accordance with Section 3.5(a).
(p) Customer Contracts. Syndication Agent and Administrative Agent shall
be reasonably satisfied that (i) the Credit Parties shall have entered into written contracts with the
five largest customers of the Credit Parties (based on Fiscal Year ended December 31, 2006) and
that such contracts are in full force and effect on the Exit Facilities Conversion Date and (ii) in
the reasonable opinion of the Syndication Agent and Administrative Agent, the terms and
conditions of such contracts, taken as a whole (including customer concessions), are not
materially worse than the terms and conditions in the contracts with such material customers in
effect on March 16, 2007, taken as a whole.
(q) Governmental Authorizations and Consents. Each Credit Party shall have
obtained all Governmental Authorizations and all consents of other Persons, in each case that are
necessary in connection with the Plan and each of the foregoing shall be in full force and effect.
All applicable waiting periods shall have expired without any action being taken or threatened by
any competent authority that would restrain, prevent or otherwise impose materially adverse
conditions on the transactions contemplated by or the effectiveness of the Plan and no action,
request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of
the foregoing shall be pending, and the time for any applicable agency to take action to set aside
its consent on its own motion shall have expired.
(r) Yucaipa Indebtedness. Any Indebtedness incurred pursuant to Section
6.1(w) shall have been converted to common equity of Holdings.
(s) Representations and Warranties. As ofthe Exit Facilities Conversion Date,
the representations and warranties contained herein and in the other Credit Documents shall be
true and correct in all material respects on and as of the Exit Facilities Conversion Date to the
same extent as though made on and as of such date, except to the extent such representations and
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warranties specifically relate to an earlier date, in which case such representations and warranties
shall have been true and correct in all material respects on and as of such earlier date.
(t) No Default. As of the Exit Facilities Conversion Date, no event shall have
occurred and be continuing or would result from the exercise by Holdings of the Exit Facilities
Option that would constitute an Event of Default or a Default.
(u) Second Lien Credit Agreement. All conditions to the satisfaction of the
Exit Facilities (as defined under the Second Lien Credit Agreement) shall have been satisfied or
waived in accordance with the terms of the Second Lien Credit Agreement and the documents
executed by the Credit Parties in connection therewith shall be in form and substance satisfactory
to the Administrative Agent.
(v) Organizational Documents; Incumbency. Administrative Agent shall have
received (i) sufficient copies of each Organizational Document executed and delivered by each
Credit Party, as applicable, and, to the extent applicable, certified as of a recent date by the
appropriate governmental official, each dated the Exit Facilities Conversion Date or a recent date
prior thereto; (ii) signature and incumbency certificates of the officers of such Person executing
the Credit Documents to which it is a party; and (iii) resolutions of the Board of Directors or
similar governing body of each Credit Party approving and authorizing the execution, delivery
and performance of the Affirmation Agreement and the other Credit Documents to which it is a
party or by which it or its assets may be bound as of the Exit Facilities Conversion Date, certified
as of the Exit Facilities Conversion Date by its secretary or an assistant secretary as being in full
force and effect without modification or amendment.
3.5 Conversion to Exit Facilities.
(a) In the event that Holdings exercises the Exit Facilities Option and upon (x)
the execution and delivery of the Affirmation Agreement by the Credit Parties in favor of
Administrative Agent, Collateral Agent and the Lenders and (y) the satisfaction (or waiver in
accordance with the terms of this Agreement) of the other conditions precedent set forth in
Section 3.4:
(i) Each of the Credit Parties, as reorganized companies under the
Bankruptcy Code, shall have the same respective rights, obligations and liabilities as
prior to the Exit Facilities Conversion Date and each such Credit Party shall remain a
party hereto as a "Borrower" or as a "Guarantor", as applicable; and
(ii) Administrative Agent, the Collateral Agent, the Lenders and the
Issuing Bank shall retain the same rights, remedies and obligations among themselves as
they would have had prior to the Exit Facilities Conversion Date.
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SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make each Credit
Extension to be made thereby and Administrative Agent to cause Issuing Bank to issue Letters of
Credit, and the Lenders and the Agents to amend and restate the Existing Credit Agreement on
the Restatement Date, each Credit Party represents and warrants to each Lender and
Administrative Agent, on the Closing Date, on the Restatement Date and on each Credit Date,
that the following statements are true and correct (it being understood and agreed that the
representations and warranties made on the Closing Date are deemed to be made concurrently
with the consummation ofthe transactions contemplated hereby):
4.1 Organization; Requisite Power and Authority; Qualification. Each of
Holdings and its Subsidiaries (other than Inactive Subsidiaries) (a) is duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization as identified in
Schedule 4.1, (b) subject to the entry of the DIP Order and the Canadian DIP Order by the
Bankruptcy Court and the Canadian Court, respectively, has all requisite power and authority to
own and operate its properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into the Credit Documents to which it is a party and to carry out the
transactions contemplated thereby, and (c) is qualified to do business and in good standing in
every jurisdiction where its assets are located and wherever necessary to carry out its business
and operations, except in jurisdictions where the failure to be so qualified or in good standing has
not had, and could not be reasonably expected to have, a Material Adverse Effect.
4.2 Equity Interests and Ownership. Except as set forth on Schedule 4.2, the
Equity Interests of each of Holdings and its Subsidiaries has been duly authorized and validly
issued and is fully paid and non-assessable. Except as set forth on Schedule 4.2, as of the date
hereof, there is no existing option, warrant, call, right, commitment or other agreement to which
Holdings or any of its Subsidiaries is a party requiring, and there is no membership interest or
other Equity Interests of any of Holdings' Subsidiaries outstanding which upon conversion or
exchange would require, the issuance by any of Holdings' Subsidiaries of any additional
membership interests or other Equity Interests of any of Holdings' Subsidiaries or other
Securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase,
a membership interest or other Equity Interests of any of Holdings' Subsidiaries. Schedule 4.2
correctly sets forth the ownership interest of Holdings and each of its Subsidiaries in their
respective Subsidiaries as of the Closing Date.
4.3 Due Authorization. Upon the entry of the DIP Order and the Canadian DIP
Order by the Bankruptcy Court and the Canadian Court, respectively , the execution, delivery
and performance of the Credit Documents have been duly authorized by all necessary action on
the part of each Credit Party that is a party thereto.
4.4 No Conflict. Subject to entry of the DIP Order and the Canadian DIP Order by
the Bankruptcy Court and the Canadian Court, respectively, the execution, delivery and
performance by Credit Parties of the Credit Documents to which they are parties, the
consummation of the Plan, and the consummation of the transactions contemplated by the Credit
Documents do not and wi11 not (a) violate (i) any provision of any law or any governmental rule
99
or regulation applicable to Holdings or any of its Subsidiaries, (ii) any of the Organizational
Documents of Holdings or any of its Subsidiaries, or (iii) any order, judgment or decree of any
court or other agency of government binding on Holdings or any of its Subsidiaries; (b) conflict
with, result in a breach of or constitute (with due notice or lapse of time or both) a default under
any Contractual Obligation of Holdings or any of its Subsidiaries except to the extent such
conflict, breach or default could not reasonably be expected to have a Material Adverse Effect; (c)
result in or require the creation or imposition of any Lien upon any of the properties or assets of
Holdings or any of its Subsidiaries (other than any Liens created under any of the Credit
Documents in favor of Collateral Agent, on behalf of Secured Parties, Liens granted by the Plan
or Liens securing the obligations under the Second Lien Credit Agreement); or (d) require any
approval of stockholders, members or partners or any approval or consent of any Person under
any Contractual Obligation of Holdings or any of its Subsidiaries, except for (i) such approvals
or consents which will be obtained on or before the Closing Date, (ii) prior to the Exit Facilities
Conversion Date, the confirmation of the Plan in accordance with the provisions of the
Bankruptcy Code and (iii) any such approvals or consents the failure of which to obtain could
not reasonably be expected to have a Material Adverse Effect.
4.5 Governmental Consents. Upon the entry of the DIP Order and the Canadian
DIP Order by the Bankruptcy Court and the Canadian Court, respectively, the execution,
delivery and performance by Credit Parties of the Credit Documents to which they are parties
and the consummation of the transactions contemplated by the Plan and the Credit Documents do
not and will not require any registration with, consent or approval of, or notice to, or other action
to, with or by, any Governmental Authority except (i) as required by the DIP Order or the
Canadian DIP Order or as otherwise set forth in the Plan, (ii) in the case of consummation of the
Plan, as required by the Bankruptcy Code, (iii) for filings and recordings with respect to the
Collateral to be made, or otherwise delivered to Collateral Agent for filing and/or recordation, on
or prior to the Exit Facilities Conversion Date and (iv) any registration, consent, approval, notice
or action to the extent that the failure to undertake or obtain such registration, consent, approval,
notice or action could not reasonably be expected to have a Material Adverse Effect. No Credit
Party's accounts or receivables are subject to any of the requirements or proceedings applicable
to assignments of accounts under the Financial Administration Act (Canada) or any other similar
law.
4.6 Binding Obligation. Each Credit Document has been duly executed and
delivered by each Credit Party that is a party thereto and, subject to the entry of the DIP Order
and the Canadian DIP Order by the Bankruptcy Court and the Canadian Court, respectively, is
the legally valid and binding obligation of such Credit Party, enforceable against such Credit
Party in accordance with its respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting creditors' rights
generally or by equitable principles relating to enforceability.
4.7 Historical Financial Statements. The Historical Financial Statements were
prepared in conformity with GAAP and fairly present, in all material respects, the financial
position, on a consolidated basis, of the Persons described in such financial statements as at the
respective dates thereof and the results of operations and cash flows, on a consolidated basis, of
the entities described therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal year-end adjustments
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and completion of financial statement footnotes. As of the Closing Date, except as set forth on
Schedule 4.7, neither Holdings nor any of its Subsidiaries has any contingent liability or liability
for taxes, long-term lease or unusual forward or long-term commitment that is not reflected in
the Historical Financial Statements or the notes thereto and which in any such case is material in
relation to the business, operations, properties, assets, condition (financial or otherwise) or
prospects of Holdings and any of its Subsidiaries taken as a whole.
4.8 Projections. On and as of the Closing Date, the projections of Holdings and its
Subsidiaries for the period of Fiscal Year 2007 through and including Fiscal Year 2012 (the
"Projections") are based on good faith estimates and assumptions made by the management of
Holdings; provided, the Projections are not to be viewed as facts and that actual results during
the period or periods covered by the Projections may differ from such Projections and that the
differences may be material; provided further, as of the Closing Date, management of Holdings
believed that the Projections were reasonable.
4.9 No Material Adverse Change. Since December 31, 2005, no event,
circumstance or change has occurred that has caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect, other than (w) as described in the Disclosure Statement, (x)
the commencement of the Cases and the events typically resulting from the commencement of
the Cases, (y) on and after the Plan Effective Date, such changes and developments that are
contemplated by the Plan and (z) such events, circumstances or changes that have been publicly
disclosed by Holdings or its Subsidiaries.
4.10 No Restricted Junior Payments. Since the Closing Date, neither Holdings nor
any of its Subsidiaries has directly or indirectly declared, ordered, paid or made, or set apart any
sum or property for, any Restricted Junior Payment or agreed to do so except (i) Restricted
Junior Payments made pursuant to the Plan and (ii) Restricted Junior Payments as permitted
pursuant to Section 6.4.
4.11 Adverse Proceedings, etc. Except for the Cases, there are no Adverse
Proceedings, individually or in the aggregate, that could reasonably be expected to have a
Material Adverse Effect. Neither Holdings nor any of its Subsidiaries (a) is in violation of any
applicable laws (including Environmental Laws) that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, or (b) is subject to or in default with
respect to any final judgments, orders, writs, injunctions, decrees, rules or regulations of any
court or any federal, state, provincial, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, that, individually or in the
aggregate with respect to clause (a) or (b), could reasonably be expected to have a Material
Adverse Effect. On and after the Plan Effective Date, there are no pre-petition or administrative
claims or pre-petition Liens other than those expressly contemplated by the Plan to be paid in
connection with the consummation of the Plan or to survive the Plan Effective Date.
4.12 Payment of Taxes. Except as otherwise permitted under Section 5.3, all federal
income and all other material tax returns and reports of Holdings and its Subsidiaries required to
be filed by any of them have been timely filed, and all taxes shown on such tax returns to be due
and payable and all other material assessments, fees and other governmental charges upon
Holdings and its Subsidiaries and upon their respective properties, assets, income, businesses and
101
franchises which arc due and payable have been paid when due and payable. Holdings knows of
no proposed tax assessment against Holdings or any of its Subsidiaries which is not being
actively contested by Holdings or such Subsidiary in good faith and by appropriate proceedings;
provided, such reserves or other appropriate provisions, if any, as shall be required in conformity
with GAAP shall have been made or provided therefor.
4.13 Properties.
(a) Title. Each of Holdings and its Subsidiaries has (i) good, sufficient and
legal title to (in the case of fee interests in real property), (ii) valid leasehold interests in (in the
case of leasehold interests in real or personal property), (iii) valid licensed rights in (in the case
of licensed interests in intellectual property) and (iv) good title to (in the case of all other
personal property), all of their respective properties and assets reflected in their respective
Historical Financial Statements referred to in Section 4.7 or, if more recent, in the most recent
financial statements delivered pursuant to Section 5.1, in each case except for assets disposed of
(x) during the Cases in accordance with applicable requirements of the Bankruptcy Code, (y)
since the date of such financial statements in the ordinary course of business or as otherwise
permitted under Section 6.8. Except as permitted by this Agreement, all such properties and
assets are free and clear of Liens.
(b) Real Estate. As of the Closing Date, Schedule 4.13(b) contains a true,
accurate and complete list of all Real Estate Assets, describing for each (i) the applicable Credit
Party, (ii) whether its interest in such property is a fee or leasehold interest, (iii) if leased, the
name of the lessor, the lessor's address, and a summary of the lease term and termination rights,
and (iv) the nature for which such property is used. Each agreement listed in clause (ii) of the
immediately preceding sentence that is material to the operations of Holdings and its
Subsidiaries is in full force and effect and Holdings does not have knowledge of any default that
has occurred and is continuing under any such agreement, and each such agreement constitutes
the legally valid and binding obligation of each applicable Credit Party, enforceable against such
Credit Party in accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting creditors' rights
generally or by equitable principles.
4.14 Environmental Matters. Neither Holdings nor any of its Subsidiaries nor any of
their respective Facilities or operations are subject to any outstanding written order, consent
decree or settlement agreement with any Person relating to any Environmental Law, any
Environmental Claim, or any Hazardous Materials Activity that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect. Neither Holdings nor any of its
Subsidiaries has received any letter or request for information under Section 104 of the
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9604)
or any comparable law that, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect. There are and, to each of Holdings' and its Subsidiaries'
knowledge, have been, no conditions, occurrences, or Hazardous Materials Activities which
could reasonably be expected to form the basis of an Environmental Claim against Holdings or
any of its Subsidiaries that, individually or in the aggregate, could reasonably be expected to
102
have a Material Adverse Effect. Neither Holdings nor any of its Subsidiaries nor, to any Credit
Party's knowledge, any predecessor of Holdings or any of its Subsidiaries has filed any notice
under any Environmental Law indicating past or present treatment of Hazardous Materials at any
Facility without delivering a copy of such notice to Administrative Agent, and none of Holdings'
or any of its Subsidiaries' operations involves the generation, transportation, treatment, storage or
disposal of Hazardous Materials, including hazardous waste, as defined under 40 C.F.R. Parts
260-270 or any state equivalent except where such operations either are in compliance with
Environmental Laws or where such non-compliance could not reasonably be expected to have a
Material Adverse Effect. Compliance with all current or reasonably foreseeable future
requirements pursuant to or under Environmental Laws could not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect. No event or condition has occurred
or is occurring with respect to Holdings or any of its Subsidiaries relating to any Environmental
Law, any Release of Hazardous Materials, or any Hazardous Materials Activity which
individually or in the aggregate has had, or could reasonably be expected to have, a Material
Adverse Effect.
4.15 No Defaults. Neither Holdings nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or conditions
contained in any of its Contractual Obligations other than as a result of the filing of the Cases
(and any payment default directly related to such filing), and no condition exists which, with the
giving of notice or the lapse of time or both, could constitute such a default, except where the
consequences, direct or indirect, of such default or defaults, if any, could not reasonably be
expected to have a Material Adverse Effect.
4.16 Material Contracts. Schedule 4.16 contains a true, correct and complete list of
all the Material Contracts in effect on the Closing Date, and except as described thereon, all such
Material Contracts are in full force and effect and no defaults currently exist thereunder (other
than, as a result of the filing of the Cases, any payment default directly related to such filing).
4.17 Governmental Regulation. Neither Holdings nor any of its Subsidiaries is
subject to regulation under the Federal Power Act or the Investment Company Act of 1940 or a
labor board of any other jurisdiction, statute or regulation which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of the Obligations unenforceable.
Neither Holdings nor any of its Subsidiaries is a "registered investment company" or a company
"controlled" by a "registered investment company" or a "principal underwriter" of a "registered
investment company" as such terms are defined in the Investment Company Act of 1940.
4.18 Margin Stock. Neither Holdings nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock. No part of the proceeds of the Loans made
to such Credit Party will be used to purchase or carry any such Margin Stock or to extend credit
to others for the purpose of purchasing or carrying any such margin stock or for any purpose that
violates the provisions ofRegulation T, U or X of the Board of Governors.
4.19 Employee Matters. Neither nor any of its Subsidiaries is engaged in
any unfair labor practice that could reasonably be expected to have a Material Adverse Effect.
Except as otherwise set forth on Schedule 4.19, there is (a) no unfair labor practice complaint
103
pending against Holdings or any of its Subsidiaries, or to the knowledge of Holdings and
Borrowers, threatened against any of them before the National Labor Relations Board or a labor
board of any other jurisdiction and no grievance or arbitration proceeding arising out of or under
any collective bargaining agreement that is so pending against Holdings or any of its Subsidiaries
or to the knowledge of Holdings and Borrowers, threatened against any of them, (b) as of the
Closing Date, no strike or work stoppage in existence or threatened involving Holdings or any of
its Subsidiaries, and (c) to the knowledge of Holdings and Borrowers, no union representation
question existing with respect to the employees of Holdings or any of its Subsidiaries and, to the
best knowledge of Holdings and Borrowers, no union organization activity that is taking place,
except (with respect to any matter specified in clause (a), (b) or (c) above, either individually or
in the aggregate) such as is not reasonably likely to have a Material Adverse Effect. The
consummation of the Plan will not give rise to any right of termination, right of renegotiation or
any other right under any collective bargaining agreement or Multiemployer Plan to which
Company or any of its Subsidiaries is bound. All payments due from any Canadian Credit Party
for employee health and welfare insurance have been paid or accrued as a liability on the books
of such Canadian Credit Party and such Canadian Credit Party has withheld and remitted all
employee withholdings to be withheld or remitted by it and has made all employer contributions
to be made by it, in each case, pursuant to applicable law on account ofthe Canada Pension Plan
and Quebec Pension Plan maintained by the Government of Canada and the Province of Quebec,
respectively, employment insurance and employee income taxes.
4.20 Employee Benefit Plans.
(a) To the knowledge of Holdings and Borrowers, Holdings, each of its
Subsidiaries and each of their respective ERISA Affiliates are in compliance with all applicable
provisions and requirements of ERISA and the Internal Revenue Code and the regulations and
published interpretations thereunder with respect to each Employee Benefit Plan, and have
performed all their obligations under each Employee Benefit Plan. Each Employee Benefit Plan
which is intended to qualify under Section 401 (a) of the Internal Revenue Code has received a
favorable determination letter from the Internal Revenue Service indicating that such Employee
Benefit Plan is so qualified and, to the knowledge of Holdings and Borrowers, nothing has
occurred subsequent to the issuance of such determination letter which would cause such
Employee Benefit Plan to lose its qualified status. Except as identified on Schedule 4.20, to the
knowledge of Holdings and Borrowers, no liability to the PBGC (other than required premium
payments), the Internal Revenue Service, any Employee Benefit Plan or any trust established
under Title IV of ERISA has been or is expected to be incurred by Holdings, any of its
Subsidiaries or any of their ERISA Affiliates. To the knowledge of Holdings and Borrowers, no
ERISA Event has occurred and is continuing or is reasonably expected to occur. Except as
identified on Schedule 4.20 or to the extent required under Section 4980B of the Internal
Revenue Code or similar state laws, no Employee Benefit Plan provides health or welfare
benefits (through the purchase of insurance or otherwise) for any retired or former employee of
Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates. As of the Closing
Date, the present value of the aggregate benefit liabilities under each Pension Plan sponsored,
maintained or contributed to by Holdings, any of its Subsidiaries or any of their ERISA Affiliates
(determined as of the end of the most recent plan year on the basis ofthe actuarial assumptions
specified for funding purposes in the most recent actuarial valuation for such Pension Plan), did
104
not exceed the aggregate current value of the assets of such Pension Plan by an amount in excess
of $7,500,000. Except as identified on Schedule 4.20, as of the most recent valuation date for
each Multiemployer Plan for which the actuarial report is available, the potential liability of
Holdings, its Subsidiaries and their respective ERISA Affiliates for a complete withdrawal from
such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when aggregated with
such potential liability for a complete withdrawal from all Multiemployer Plans, based on
information available pursuant to Section 4221(e) of ERISA is zero. To the knowledge of
Holdings and Borrowers, Holdings, each of its Subsidiaries and each of their ERISA Affiliates
have complied with the requirements of Section 515 of ERISA with respect to each
Multiemployer Plan and are not in material"default" (as defined in Section 4219(c)(5) of ERISA)
with respect to payments to a Multiemployer Plan.
(b) In respect of each Canadian Credit Party, the Pension Plans are duly
registered under all applicable laws which require registration (including the Income Tax Act
(Canada) in respect of registered Pension Plans) and to the knowledge of Holdings and
Borrowers no event has occurred which is reasonably likely to cause the loss of such registered
status. All material obligations of each Canadian Credit Party (including fiduciary, contribution,
funding, investment and administration obligations) required to be performed in connection with
the Employee Benefit Plans, the Pension Plans and any funding agreements therefor under the
terms thereof and applicable statutory and regulatory requirements, have been performed in a
timely and proper fashion. To the knowledge of Holdings and Borrowers, there have been no
improper withdrawals or applications of the assets of the Pension Plans or the Employee Benefit
Plans. There are no outstanding disputes concerning the assets or liabilities of the Pension Plans
or the Employee Benefit Plans. There is no Pension Plan in respect of which an event has
occurred that could require immediate or accelerated funding in respect of unfunded liabilities or
other deficit amounts. All contributions, in respect of a multiemployer pension plan required to
be made by a Canadian Credit Party have been paid.
4.21 Certain Fees. No broker's or finder's fee or commission will be payable with
respect to the transactions contemplated by the Plan or the Credit Documents, except as payable
to the Agents and the Lenders or as otherwise contemplated pursuant to the Plan.
4.22 Solvency. From and after the Exit Facilities Conversion Date, upon the
incurrence of any Obligation by any Credit Party on any date on which this representation and
warranty is made, the Credit Parties will be, Solvent.
4.23 Compliance with Statutes, etc. Each of Holdings and its Subsidiaries is in
compliance with all applicable statutes, regulations and orders of, and all applicable restrictions
imposed by, all Governmental Authorities, in respect of the conduct of its business and the
ownership of its property (including compliance with all applicable Environmental Laws with
respect to any Real Estate Asset or governing its business and the requirements of any permits
issued under such Environmental Laws with respect to any such Real Estate Asset or the
operations of Holdings or any of its Subsidiaries), except such non-compliance that, individually
or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
105
4.24 Disclosure. No representation or warranty of any Credit Party contained in any
Credit Document or in any other documents, certificates or written statements furnished to any
Agent or Lender by or on behalf of Holdings or any of its Subsidiaries for use in connection with
the transactions contemplated hereby, when taken as a whole, contains any untrue statement of a
material fact or omits to state a material fact (kt1own to Holdings or Borrowers, in the case of any
document not furnished by either of them) necessary in order to make the statements contained
herein or therein not misleading in lig.'1t of the circumstances in which the same were made;
provided that any projections and pro forma financial information contained in such materials are
based upon good faith estimates and assumptions believed by Holdings or Borrowers to be
reasonable at the time made, it being recognized by Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period or periods covered
by any such projections may differ from the projected results. There are no facts known to
Holdings or Borrowers (other than matters of a general economic nature) that, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse Effect and that have
not been disclosed herein or in such other documents, certificates and statements furnished to
Lenders for use in connection with the transactions contemplated hereby.
4.25 Secured, Super-Priority Obligations. On and after the Closing Date and until
the Exit Facilities Conversion Date:
(i) The provisions of the Credit Documents, the Interim DIP Order,
the Final DIP Order, the Canadian Interim Order and the Canadian Final Order are
effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties,
legal, valid and perfected Liens on and security interests in all right, title and interest in
the Collateral, having the priority provided for herein and in the Interim DIP Order, the
Final DIP Order, the Canadian Interim Order and the Canadian Final Order and
enforceable against the Credit Parties.
(ii) Pursuant to subclauses (2) and (3) of clause (c) of Section 364 of
the Bankruptcy Code, the Interim DIP Order, the Final DIP Order, the Canadian Interim
Order and the Canadian Final Order, all Secured Obligations are secured by a First
Priority perfected Lien on the Collateral, subject only to (a) valid, perfected,
nonavoidable and enforceable Liens existing as of the Petition Date as set forth on
Schedule 4.25 hereto, (b) to the extent such post-petition perfection is expressly permitted
by the Bankruptcy Code, valid, nonavoidable and enforeceable Liens existing as of the
Petition Date, but perfected after the Petition Date as set forth on Schedule 4.25, (c)
claims of the lenders and agents under the Existing DIP Credit Agreement to the Existing
DIP Credit Agreement Reserve Amount, and (d) the Carve-Out.
(iii) Pursuant to clause (c)(l) of Section 364 of the Bankruptcy Code,
the Interim DIP Order, the Final DIP Order, the Canadian Interim Order and the
Canadian Final Order, all Secured Obligations and all other obligations of the Credit
Parties under the Credit Documents at all times shall constitute allowed super-priority
administrative expense claims in the Cases having priority over all administrative
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expenses of the kind specified in clause (b) of Section 503 or clause (b) of Section 507 of
the Bankruptcy Code, subject only to the Carve-Out.
(iv) The Interim DIP Order, the Final DIP Order, the Canadian
Interim Order and the Canadian Final Order and the transactions contemplated hereby
and thereby, are in full force and effect and have not been vacated, reversed, modified,
amended or stayed without the prior written consent of Requisite Lenders.
4.26 Patriot Act. To the extent applicable, each Credit Party is in compliance, in all
material respects, with the (i) Trading with the Enemy Act, as amended, and each of the foreign
assets control regulations of the Untied States Treasury Department (31 CFR, Subtitle B, Chapter
V, as amended) and any other enabling legislation or executive order relating thereto, (ii) Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA Patriot Act of 2001), (iii) Part ILl of the Criminal Code (Canada), (iv) the
United Nations Suppression of Terrorism Regulations (Canada) and (v) United Nations Al-Qaida
and Taliban Regulations (Canada). No part of the proceeds of the Loans will be used, directly or
indirectly, for any payments to any governmental official or employee, political party, official of
a political party, candidate for political office, or anyone else acting in an official capacity, in
order to obtain, retain or direct business or obtain any improper advantage, in violation of the
United States Foreign Corrupt Practices Act of 1977, as amended.
SECTION 5. AFFIRMATIVE COVENANTS
Each Credit Party covenants and agrees that, so long as any Commitment is in effect and
until payment in full of all Obligations (other than contingent indemnification obligations for
which no claim has been made) and cancellation or expiration of all Letters of Credit, each
Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 5.
5.1 Financial Statements and Other Reports. Holdings will deliver to
Administrative Agent:
(a) Monthly Reports. As soon as available, and in any event within 30 days
after the end of the first two months in each Fiscal Quarter, commencing with the month in
which the Closing Date occurs, the consolidated balance sheet of Holdings and its Subsidiaries
as at the end of such month and the related consolidated statements of income, stockholders'
equity and cash flows of Holdings and its Subsidiaries for such month and for the period from
the beginning of the then current Fiscal Year to the end of such month, setting forth in each case
in comparative form the corresponding figures for the corresponding periods of the previous
Fiscal Year and, except for the cash flow statements, the corresponding figures from the
Financial Plan for the current Fiscal Year, to the extent prepared on a monthly basis, all in
reasonable detail, together with a Financial Officer Certification;
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(b) Quarterly Financial Statements. As soon as available, and in any event
within 60 days after the end of each of the first three Fiscal Quarters of each Fiscal Year,
commencing with the Fiscal Quarter in which the Closing Date occurs, the consolidated balance
sheets of Holdings and its Subsidiaries as at the end of such Fiscal Quarter and the related
consolidated statements of income, stockholders' equity and cash flows of Holdings and its
Subsidiaries for such Fiscal Quarter and for the period from the beginning of the then current
Fiscal Year to the end of such Fiscal Quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous Fiscal Year and, except for
the cash flow statements, the corresponding figures from the Financial Plan for the current Fiscal
Year, all in reasonable detail, together with a Financial Officer Certification and a Narrative
Report with respect thereto;
(c) Annual Financial Statements. As soon as available, and in any event
within (x) for the Fiscal Year ended December 31, 2006, 30 days after the Plan Effective Date (it
being understood and agreed that Holdings shall use its commercially reasonable efforts to
deliver the following financial statements as soon as possible after the Closing Date), (y) for the
Fiscal Year ended December 31, 2007, 120 days after the end of such Fiscal Year, and (z) for
each Fiscal year thereafter, 105 days after the end of such Fiscal Year, (A) the audited
consolidated balance sheets of Holdings and its Subsidiaries as at the end of such Fiscal Year and
the related consolidated statements of income, stockholders' equity and cash flows of Holdings
and its Subsidiaries for such Fiscal Year, (B) a report setting forth in each case in comparative
form the corresponding figures for the previous Fiscal Year and, except for the cash flow
statements, the corresponding figures from the Financial Plan for the Fiscal Year covered by
such financial statements, in reasonable detail, together with a Financial Officer Certification and
a Narrative Report with respect thereto and (C) with respect to such audited consolidated
financial statements a report thereon of K.PMG LLP or other independent certified public
accountants of recognized national standing selected by Holdings, and reasonably satisfactory to
Administrative Agent (which report shall be unqualified as to going concern and scope of audit,
and shall state that such consolidated financial statements fairly present, in all material respects,
the consolidated financial position of Holdings and its Subsidiaries as at the dates indicated and
the results of their operations and their cash flows for the periods indicated in conformity with
GAAP applied on a basis consistent with prior years (except as otherwise disclosed in such
financial statements) and that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with generally accepted auditing
standards) together with a written statement by such independent certified public accountants
stating (1) that their audit examination has included a review of the terms of Section 6.7 ofthis
Agreement and the related definitions in so far as they relate to accounting or auditing matters
and (2) whether, in connection therewith, any condition or event that constitutes a Default or an
Event of Default under Section 6. 7 has come to their attention and, if such a condition or event
has come to their attention, specifying the nature and period of existence thereof;
(d) Compliance Certificate. Together with each delivery of financial
statements of Holdings and its Subsidiaries pursuant to Sections 5.l(b) and 5.l(c) (except for the
delivery of annual financial statements for the Fiscal Year ended December 31, 2006 and
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(ii) quarterly financial statements for the Fiscal Quarter ended on March 31, 2007), a duly
executed and completed Compliance Certificate;
(e) Statements of Reconciliation after Change in Accounting Principles. If, as
a result of any change in accounting principles and policies from those used in the preparation of
the most recent Historical Financial Statements delivered prior to the Closing Date, the
consolidated financial statements of Holdings and its Subsidiaries delivered pursuant to Section
5.1(b) or 5.1(c) will differ in any material respect from the consolidated financial statements that
would have been delivered pursuant to such subdivisions had no such change in accounting
principles and policies been made and such change would have an effect on the calculations
required pursuant to the Compliance Certificate, then, together with the first delivery of such
financial statements after such change, one or more statements of reconciliation for all such prior
financial statements in form and substance reasonably satisfactory to Administrative Agent;
(f) Notice of Default. Promptly upon, but in any event within seven Business
Days after, any Executive Officer of any Borrower obtaining knowledge (i) of any condition or
event that constitutes a Default or an Event of Default or that notice has been given to any
Borrower with respect thereto; (ii) that any Person has given any notice to Holdings or any of its
Subsidiaries or taken any other action with respect to any event or condition set forth in Section
8.1 (b); or (iii) of the occurrence of any event or change that has caused or evidences, either in
any case or in the aggregate, a Material Adverse Effect, a certificate of its Authorized Officer
specifying the nature and period of existence of such condition, event or change, or specifying
the notice given and action taken by any such Person and the nature of such claimed Event of
Default, Default, default, event or condition, and what action such Borrower has taken, is taking
and proposes to take with respect thereto;
(g) Notice of Litigation. Promptly upon, but in any event within seven
Business Days after, any Executive Officer of Holdings or any Borrower obtaining knowledge of
(i) the institution of, or non-fiivolous threat of, any Adverse Proceeding claiming damages in
excess of (A) with respect to Adverse Proceedings involving automobile and workers
compensation claims in the ordinary course ofbusiness, $1,500,000 and (B) with respect to all
other Adverse Proceedings, $500,000, in each case not previously disclosed in writing by
Borrowers to Lenders, or (ii) any material development in any Adverse Proceeding that, in the
case of either clause (i) or (ii), if adversely determined could be reasonably expected to have a
Material Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the transactions contemplated hereby, written
notice thereof together with such other information as may be reasonably available to Holdings
or Borrowers to enable Lenders and their counsel to evaluate such matters;
(h) ERISA and Canadian Pension Plans. (i) Promptly upon, but in any event
within seven Business Days after, an Executive Officer of Holdings or any Borrower becoming
aware of the occurrence of or forthcoming occurrence of any ERISA Event, a written notice
specifying the nature thereof, what action Holdings, any of its Subsidiaries or any of their
respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and,
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when known, any action taken or threatened by the Internal Revenue Service, the Department of
Labor or the PBGC with respect thereto; (ii) with reasonable promptness, but in any event within
seven Business Days, following the request of Administrative Agent, copies of (1) each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by Holdings,
any of its Subsidiaries or any of their respective ERISA Affihatcs with the Intemal Revenue
Service with respect to each Pension Plan; (2) all notices received by Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates from a Multiemployer Plan sponsor
concerning an ERISA Event; and (3) copies of such other documents or governmental reports or
filings relating to any Employee Benefit Plan as Administrative Agent shall reasonably request;
and (iii) in respect of any Canadian Credit Party, (1) copies of each annual and other return,
report or valuation with respect to each registered Pension Plan as filed with any applicable
Governmental Authority; (2) promptly, but in any event within seven Business Days after,
receipt thereof, a copy of any direction, order, notice, ruling or opinion that any Canadian Credit
Party may receive from any applicable Governmental Authority with respect to any registered
Pension Plan; and (3) notification within 30 days of any increases having a cost to any Canadian
Credit Party in excess of $100,000 per annum in the aggregate, in the benefits of any existing
Pension Plan or Employee Benefit Plan, or the establishment of any new Pension Plan or
Employee Benefit Plan, or the commencement of contributions to any such plan to which no
Canadian Credit Party was previously contributing.
(i) Financial Plan. As soon as practicable and in any event no later than 30
days after the beginning of each Fiscal Year, a consolidated plan and financial forecast for such
Fiscal Year and each Fiscal Year (or portion thereof) through the final maturity date of the Loans
(a "Financial Plan"), including (i) a forecasted consolidated balance sheet and forecasted
consolidated statements of income and cash flows ofHoldings and its Subsidiaries for each such
Fiscal Year and an explanation of the assumptions on which such forecasts are based, and
(ii) forecasted consolidated statements of income and cash flows of Holdings and its Subsidiaries
for each month in such Fiscal Year;
(j) Insurance Report. As soon as practicable and in any event by the last day
of each Fiscal Year, if requested by Administrative Agent, a certificate from Holdings' insurance
broker(s) in form and substance reasonably satisfactory to Administrative Agent outlining all
material insurance coverage maintained as of the date of such certificate by Holdings and its
Subsidiaries;
(k) Notice of Change in Board of Directors. Together with each delivery of a
Compliance Certificate pursuant to Section 5.1 (d), a duly executed and completed certificate of
an Authorized Officer describing changes (if any) in the board of directors (or similar governing
body) of Holdings since the Closing Date or since the date of the delivery of the last such
certificate;
(I) Notice Regarding Material Contracts. With reasonable promptness,
written notice (i) after any Material Contract of Holdings or any of its Subsidiaries is tenninated
(except, with respect to any Material Contract, at the scheduled completion of the term of such
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Material Contract) or amended in a manner that is materially adverse to Holdings and its
Subsidiaries, taken as a whole, or (ii) any new Material Contract (other than a renewal of a
previous contract on similar terms and conditions) is entered into, a written statement describing
such event, with copies of such material amendments or new contracts, delivered to
Administrative Agent (to the extent such delivery is permitted by the terms of any such Material
Contract; provided, no such prohibition on delivery shall be effective if it were bargained for by
Holdings or its applicable Subsidiary with the intent of avoiding compliance with this Section
5.1(1)), and an explanation of any actions beingtaken with respect thereto;
(m) Information Regarding Collateral. (a) Holdings will furnish to Collateral
Agent prompt written notice of any change (i) in any Credit Party's corporate name, (ii) in any
Credit Party's identity or corporate structure, (iii) in any Credit Party's jurisdiction of
organization, (iv) in any Credit Party's place of business, chief executive office or domicile, or (v)
in any Credit Party's Federal Taxpayer Identification Number or state organizational
identification number. Holdings agrees not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform Commercial Code,
Canadian PPSA or otherwise that are required in order for Collateral Agent to continue at all
times following such change to have a valid, legal and perfected security interest in all the
Collateral as contemplated in the Collateral Documents. Holdings also agrees promptly to notify
Collateral Agent if any material portion ofthe Collateral is damaged or destroyed;
(n) Annual Collateral Verification. Each year, beginning with Fiscal Year
2008, at the time of delivery of annual financial statements with respect to the preceding Fiscal
Year pursuant to Section 5.1 (c), Holdings shall deliver to Collateral Agent a certificate of its
Authorized Officer (i) either confirming that there has been no change in such information since
the date of the Collateral Questionnaire delivered on the Closing Date or the date of the most
recent certificate delivered pursuant to this Section and/or identifying such changes and (ii)
certifying that all Uniform Commercial Code and Canadian PPSA financing statements
(including fixtures filings, as applicable) and all supplemental intellectual property security
agreements or other appropriate filings, recordings or registrations, have been filed of record in
each governmental, municipal or other appropriate office in each jurisdiction identified pursuant
to clause (i) above (or in such Collateral Questionnaire) to the extent necessary to effect, protect
and perfect the security interests under the Collateral Documents for a period of not less than 18
months after the date of such certificate (except as noted therein with respect to any continuation
statements to be filed within such period);
(o) Cases. The Credit Parties shall immediately provide to each Lender
copies of all material pleadings, notices, orders, agreements, and all other documents served,
filed or entered, as the case may be, in connection with, or in relation to, the Cases;
(p) Other Information. (A) Promptly upon, but in any event within seven
Business Days after, their becoming available, copies of (i) all financial statements (and, at any
time after the common stock of Holdings or any of its Subsidiaries is listed on a national
securities exchange or the NASDAQ National Market quotation system, reports, notices and
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proxy statements) sent or made available generally by Holdings to its security holders acting in
such capacity or by any Subsidiary of Holdings to its security holders other than Holdings or
another Subsidiary of Holdings, (ii) all regular and periodic reports and all registration
statements and prospectuses, if any, filed by Holdiugs or any of its Subsidiaries with any
securities exchange or with the Securities and Exchange Commission or any governmental or
private regulatory authority, (iii) all press releases and other statements made available generally
by Holdings or any of its Subsidiaries to the public concerning material developments in the
business of Holdings or any of its Subsidiaries and (B) such other information and data with
respect to Holdings or any of its Subsidiaries as from time to time may be reasonably requested
by Administrative Agent or any Lender;
( q) Certification of Public Information. Concurrently with the delivery of any
document or notice required to be delivered pursuant to this Section 5.1, Holdings shall indicate
in writing whether such document or notice contains solely Public Information. Holdings and
each Lender acknowledge that certain of the Lenders may be "public-side" Lenders (Lenders that
do not wish to receive material non-public information with respect to Holdings, its Subsidiaries
or their securities) and, if documents or notices required to be delivered pursuant to this Section
5.1 or otherwise are being distributed through IntraLinks/IntraAgency, SyndTrak or another
relevant website or other information platform (the "Platform"), any document or notice that
Holdings has not indicated contains solely Public Information shall not be posted on that portion
of the Platform designated for such public-side Lenders. If Holdings has not indicated whether a
document or notice delivered pursuant to this Section 5.1 contains solely Public Information,
Administrative Agent reserves the right to post such document or notice solely on that portion of
the Platform designated for Lenders who wish to receive material nonpublic information with
respect to Holdings, its Subsidiaries and their securities;
(r) Amendment to Second Lien Loan Credit Documents. Promptly upon
execution and delivery thereof, copies of any material amendment, restatement, waiver,
supplement or other modification to the Second Lien Credit Agreement, or any other Second
Lien Credit Document, entered into on or after the Restatement Date; and
(s) Quarterly Fleet Report. Together with each delivery of financial
statements of Holdings and its Subsidiaries pursuant to Sections 5.1 (b) and 5.1 (c), a report
certified by a Authorized Officer of Holdings reflecting, among other things, information
regarding the fleet of rigs owned by Holdings and its Subsidiaries, including the aggregate
amount of rigs added, refurbished and disposed of by Holdings and its Subsidiaries during the
period covered by such financial statements, in each case, to the best knowledge of Holdings at
such time.
5.2 Existence. Except as otherwise permitted under Section 6.8, each Credit Party
will, and will cause each of its Subsidiaries (other than Inactive Subsidiaries) to, at all times
preserve and keep in full force and effect its existence and all rights and franchises, licenses and
permits material to its business; provided, no Credit Party (other than Borrowers with respect to
existence) or any of its Subsidiaries shaH be required to preserve any such existence, right or
franchise, licenses and permits if an Executive Officer of such Credit Party shall determine that
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the preservation thereof is no longer desirable in the conduct of the business of such Person, and
that the loss thereof is not disadvantageous in any material respect to such Person or to Lenders.
5.3 Payment of Taxes and Claims. Each Credit Party will, and will cause each of its
Subsidiaries to, pay all federal and state and provincial income Taxes and all other material
Taxes imposed upon it or any of its properties or assets or in respect of any of its businesses or
franchises before any penalty or fine accrues thereon, and all claims (including claims for labor,
services, materials and supplies) for sums that have become due and payable and that by law
have or may become a Lien upon any of its properties or assets, prior to the time when any
penalty or fine shall be incurred with respect thereto; provided, no such Tax or claim need be
paid if, prior to the Plan Effective Date, it is subject to the automatic stay in connection with the
Cases or is otherwise being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted, so long as (a) adequate reserve or other appropriate provision,
as shall be required in conformity with GAAP shall have been made therefor, and (b) in the case
of a Tax or claim which has or may become a Lien against any of the Collateral, such contest
proceedings conclusively operate to stay the sale of any portion of the Collateral to satisfy such
Tax or claim. No Credit Party will, nor will it permit any of its Subsidiaries to, file or consent to
the filing of any consolidated income tax return with any Person (other than Holdings or any of
its Subsidiaries), except (x) a Subsidiary that is hereafter acquired by Holdings in a Permitted
Acquisition may be included in the consolidated tax return of the seller of such Subsidiary, to the
extent such tax return relates to the period prior to the closing of such Permitted Acquisition and
(y) Holdings may be included in the consolidated tax return of another Person if (i) such
inclusion is required as a matter of law, (ii) either no Change of Control has occurred or the
Requisite Lenders have consented to such Change in Control and (iii) tax sharing arrangements
have been entered into allocating the related consolidated tax benefits and liabilities among the
relevant parties on an equitable basis, such that the tax benefits and liabilities allocated to
Holdings shall be determined as if a separate consolidated return had been filed by Holdings on
behalf of itself and the other members of the affiliate group of which Holdings would be the
common parent corporation (without regard to the ownership of the capital stock ofHoldings).
5.4 Maintenance of Properties. Each Credit Party will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition,
ordinary wear and tear excepted, all material properties used or useful in the business of
Holdings and its Subsidiaries and from time to time will make or cause to be made all
appropriate repairs, renewals and replacements thereof.
5.5 Insurance. Holdings will maintain or cause to be maintained, with financially
sound and reputable insurers, such public liability insurance, third party property damage
insurance, business interruption insurance and casualty insurance with respect to liabilities,
losses or damage in respect of the assets, properties and businesses of Holdings and its
Subsidiaries as may customarily be carried or maintained under similar circumstances by Persons
of established reputation engaged in similar businesses, in each case in such amounts (giving
effect to self-insurance), with such deductibles, covering such risks and otherwise on such terms
and conditions as shall be customary for such Persons. The Lenders and the Agents hereby
acknowledge and agree that as of the Closing Date Haul Insurance is an acceptable provider of
workers' compensation and comprehensive general and auto liability insurance for the Credit
Parties. Without limiting the generality of the foregoing, Holdings will maintain or cause to be
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maintained (a) flood insurance with respect to each Flood Hazard Property that is located in a
community that participates in the National Flood Insurance Program, in each case in compliance
with any applicable regulations of the Board of Governors of the Federal Reserve System, and (b)
replacement value casualty insurance (including self insurance) on the Collateral under such
policies of insurance, with such insurance companies, in such amounts, with such deductibles,
and covering such risks as are at all times carried or maintained under similar circumstances by
Persons of established reputation engaged in similar businesses. Each such policy of insurance
shall (i) name Collateral Agent, on behalf of Secured Parties, as an additional insured thereunder
as its interests may appear, (ii) in the case of each casualty insurance policy, contain a loss
payable clause or endorsement, reasonably satisfactory in form and substance to Collateral Agent,
that names Collateral Agent, on behalf of the Secured Parties, as the loss payee thereunder and
provide for at least thirty days' prior written notice to Collateral Agent of any modification or
cancellation of such policy.
5.6 Books and Records; Inspections. Each Credit Party will, and will cause each of
its Subsidiaries to, keep proper books of record and accounts in which full, true and correct
entries in conformity in all material respects with GAAP shall be made of all dealings and
transactions in relation to its business and activities. Each Credit Party which keeps records
relating to Collateral in the Province of Quebec shall at all times keep a duplicate copy thereof at
a location outside of the Province of Quebec. Each Credit Party will, and will cause each of its
Subsidiaries to, permit any authorized representatives designated by any Lender to visit and
inspect any of the properties of any Credit Party and any of its respective Subsidiaries, to inspect,
copy and take extracts from its and their financial and accounting records, and to discuss its and
their affairs, finances and accounts with its and their officers and independent public accountants,
all upon reasonable notice and at such reasonable times during normal business hours and as
often as may reasonably be requested; provided that (i) such Credit Party shall be present during
any discussions with the independent public accountants and (ii) so long as no Default or Event
of Default shall have occurred in such Fiscal Year, the Credit Parties shall not be required to pay
the expenses of more than one visit during any Fiscal Year.
5.7 Lenders Meetings. Holdings will, upon the request of Administrative Agent or
Requisite Lenders, participate in a meeting of Administrative Agent and Lenders once during
each Fiscal Year to be held at Holdings' corporate offices (or at such other location as may be
agreed to by Holdings and Administrative Agent) at such time as may be agreed to by Holdings
and Administrative Agent.
5.8 Compliance with Laws. Each Credit Party will comply, and shall cause each of
its Subsidiaries and all other Persons, if any, on or occupying any Facilities to comply, with the
requirements of all applicable laws, rules, regulations and orders of any Governmental Authority
(including all Environmental Laws), noncompliance with which could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
5.9 Environmental.
(a) Environmental Disclosure. Holdings will deliver to Administrative Agent
and Lenders:
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(i) as soon as practicable following receipt thereof, copies of all
environmental audits, investigations, analyses and reports of any kind or character (other
than those protected by attorney client or work product privileges), whether prepared by
personnel of Holdings or any of its Subsidiaries or by independent consultants,
governmental authorities or any other Persons, with respect to significant environmental
matters at any Facility or with respect to any Environmental Claims, which could
reasonably be expected to result in Borrowers and their Subsidiaries incurring liabilities
or losses under Environmental Laws in excess of $1,000,000 individually or in the
aggregate in a Fiscal Year;
(ii) promptly upon, but in any event within seven Business Days
after, an Executive Officer of any Borrower obtaining knowledge of the occurrence
thereof, written notice describing in reasonable detail (1) any Release required to be
reported to any federal, state or local governmental or regulatory agency under any
applicable Environmental Laws, (2) any remedial action taken by Holdings or any other
Person in response to (A) any Hazardous Materials Activities the existence of which has
a reasonable possibility of resulting in one or more Environmental Claims having,
individually or in the aggregate, a Material Adverse Effect, or (B) any Environmental
Claims that, individually or in the aggregate, have a reasonable possibility of resulting in
a Material Adverse Effect, and (3) such Borrower's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of any Facility that could cause
such Facility or any part thereof to be subject to any material restrictions on the
ownership, occupancy, transferability or use thereof under any Environmental Laws;
(iii) as soon as practicable, but in any event within seven Business
Days, following the sending or receipt thereof by Holdings or any of its Subsidiaries, a
copy of any and all written communications with respect to (1) any Environmental
Claims that, individually or in the aggregate, have a reasonable possibility of giving rise
to a Material Adverse Effect, (2) any Release required to be reported to any federal, state
or local governmental or regulatory agency, and (3) any request for information from any
governmental agency that suggests such agency is investigating whether Holdings or any
of its Subsidiaries may be potentially responsible for any Hazardous Materials Activity;
(iv) prompt written notice describing in reasonable detail (1) any
proposed acquisition of stock, assets, or property by Holdings or any of its Subsidiaries
that could reasonably be expected to (A) expose Holdings or any of its Subsidiaries to, or
result in, Environmental Claims that could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect or (B) affect the ability of Holdings or any
of its Subsidiaries to maintain in full force and effect all material Governmental
Authorizations required under any Environmental Laws for their respective operations
and (2) any proposed action to be taken by Holdings or any of its Subsidiaries to modify
current operations in a manner that could reasonably be expected to subject Holdings or
any of its Subsidiaries to any additional material obligations or requirements under any
Environmental Laws; and
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(v) with reasonable promptness, such other documents and
information as from time to time may be reasonably requested by Administrative Agent
in relation to any matters disclosed pursuant to this Section 5.9(a).
(b) HazardOlJS Materials Activities, Etc. Each Credit Party shall promptly
take, and shall cause each of its Subsidiaries promptly to take, any and all actions necessary to (i)
cure any violation of applicable Environmental Laws by such Credit Party or its Subsidiaries that
could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect,
and (ii) make an appropriate response to any Environmental Claim against such Credit Party or
any of its Subsidiaries and discharge any obligations it may have to any Person thereunder where
failure to do so could reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
(c) Each Credit Party hereby acknowledges and agrees that no Agent, Lender
or other Secured Party or any of their respective officers, directors, employees, attorneys, agents
and representatives (i) is now, or has ever been, in control of any Facility or any Credit Party's
affairs, and (ii) has the capacity or the authority through the provisions of the Credit Documents
or otherwise to direct or influence any (A) Credit Party's conduct with respect to the ownership,
operation or management of any Facility, (B) undertaking, work or task performed by any
employee, agent or contractor of any Credit Party or the manner in which such undertaking,
work or task may be carried out or performed, or (C) compliance with Environmental Laws.
5.10 Subsidiaries. In the event that any Person becomes a Domestic Subsidiary or
Canadian Subsidiary of Holdings or any Domestic Subsidiary or Canadian Subsidiary of
Holdings no longer qualifies as an Inactive Subsidiary, Holdings shall (a) promptly, but in any
event within seven Business Days, cause such Subsidiary to become a Guarantor hereunder and a
Grantor under the Pledge and Security Agreement or the Canadian Pledge and Security
Agreement, as applicable, by executing and delivering to Administrative Agent and Collateral
Agent a Counterpart Agreement and a counterpart agreement to the Intercreditor Agreement in
the form of Annex II to the Intercreditor Agreement, and (b) take all such actions and execute
and deliver, or cause to be executed and delivered, all such documents, instruments, agreements,
and certificates as are similar to those described in Sections 3.1(c), 3.1(g), 3.1(h) and 3.l(k) and,
on or after the Exit Facilities Conversion Date, 3.4(b), 3.4(c) and 3.4(i). Except as provided in
the preceding sentence, in the event that any Person becomes a Foreign Subsidiary of Holdings,
and the ownership interests of such Foreign Subsidiary are owned by Holdings or by any
Domestic Subsidiary thereof, Holdings shall, or shall cause such Domestic Subsidiary to, deliver,
all such documents, instruments, agreements, and certificates as are similar to those described in
Sections 3.l(c), and Holdings shall take, or shall cause such Domestic Subsidiary to take, all of
the actions referred to in Section 3.4(c)(i) necessary to grant and to perfect a First Priority Lien in
favor of Collateral Agent, for the benefit of Secured Parties, under the Pledge and Security
Agreement in 65% of such Equity Interests. With respect to each such Subsidiary, Holdings
shall promptly send to Administrative Agent written notice setting forth with respect to such
Person (i) the date on which such Person became a Subsidiary ofHoldings, and (ii) all of the data
required to be set forth in Schedules 4.1 and 4.2 with respect to all Subsidiaries of Holdings; and
such written notice shall be deemed to supplement Schedule 4.1 and 4.2 for all purposes hereof.
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5.11 Additional Real Estate Assets.
(a) In the event that any Credit Party acquires any Leasehold Property (other
than a Material Real Estate Asset), such Credit Party shall promptly use its commercially
reasonable efforts to cause to be executed and delivered, at the option of Collateral Agent in its
reasonable discretion, either (i) a fully executed and notarized Subordination, Non-Disturbance
and Attornment Agreement or (ii) a Landlord Personal Property Access Agreement, in each case
executed by the landlord of such Leasehold Property and in form and substance reasonably
satisfactory to Collateral Agent.
(b) In the event that any time on or after the Exit Facilities Conversion Date
any Credit Party acquires a Material Real Estate Asset or a Real Estate Asset owned or leased on
the Exit Facilities Conversion Date becomes a Material Real Estate Asset and such interest has
not otherwise been made subject to the Lien of the Collateral Documents in favor of Collateral
Agent, for the benefit of Secured Parties (excluding, in any event, any Real Estate Asset that is
subject to a Planned Asset Sale; provided such Real Estate Asset is sold by the first anniversary
of the Closing Date), then such Credit Party shall promptly take all such actions and execute and
deliver, or cause to be executed and delivered, all such mortgages, documents, instruments,
agreements, opinions and certificates similar to those described in Sections 3 .4(b) and 3 .4( c) with
respect to each such Material Real Estate Asset that Collateral Agent shall reasonably request to
create in favor of Collateral Agent, for the benefit of Secured Parties, a valid and, subject to any
filing and/or recording referred to herein, perfected First Priority security interest in such
Material Real Estate Assets. In addition to the foregoing, Borrowers shall, at the request of
Collateral Agent, deliver, from time to time, to Collateral Agent such appraisals as are required
by law or regulation of Real Estate Assets with respect to which Collateral Agent has been
granted a Lien.
(c) Notwithstanding the foregoing, with respect to any Leasehold Property, if
compliance with the provisions of Section 5.11 (b) requires the consent of or other action by the
landlord with respect to such Leasehold Property and Borrowers and the applicable Subsidiaries
of Borrowers have exercised commercially reasonable efforts (which shall not in any case
require any Credit Party to agree to any concessions) to obtain such consent or other action but
are unable to do so, then such compliance shall not be required.
5.12 Interest Rate Protection. No later than ninety (90) days following the Exit
Facilities Conversion Date and at all times thereafter until the third anniversary of the Exit
Facilities Conversion Date, Holdings shall obtain and cause to be maintained protection against
fluctuations in interest rates pursuant to one or more Interest Rate Agreements in form and
substance reasonably satisfactory to Administrative Agent and Syndication Agent, in order to
ensure that no less than 50% of the aggregate principal amount of the total Indebtedness for
borrowed money of Holdings and its Subsidiaries then outstanding is either (i) subject to such
Interest Rate Agreements or (ii) Indebtedness that bears interest at a fixed rate.
5.13 Further Assurances.
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(a) At any time or from time to time upon the request of Administrative Agent,
each Credit Party will, at its expense, promptly execute, acknowledge and deliver such further
documents and do such other acts and things as Administrative Agent or Collateral Agent may
reasonably request in order to effect fully the provisions of the Credit Documents. In furtherance
and not in limitation of the foregoing, each Credit P a r t ~ y shall take such actions as Administrative
Agent or Collateral Agent may reasonably request from time to time to ensure that the
Obligations are guarantied by the Guarantors and are secured by substantially all of the assets of
Holdings, and its Subsidiaries and all of the outstanding Equity Interests of the Subsidiaries of
Holdings (subject to limitations contained in the Credit Documents with respect to Foreign
Subsidiaries).
(b) Each of the Credit Parties, Administrative Agent, Collateral Agent, the
Lenders and Issuing Bank shall take such actions and execute and deliver such agreements,
instruments or other documents (at the sole cost and expense of the Credit Parties) as
Administrative Agent may reasonably request and solely as are necessary to give effect to the
provisions of Section 3.5 including amending this Agreement and the other Credit Documents to
remove those provisions that apply solely to the period prior to the Exit Facilities Conversion
Date; provided, however that the consent of, or other action by, any ofthe Lenders or the Issuing
Bank is not a condition precedent to the effectiveness ofthe provisions of Section 3.5.
5.14 Maintenance of Ratings. At all times, Borrowers shall use commercially
reasonable efforts to maintain ratings issued by Moody's and S&P with respect to its senior
secured debt.
5.15 Final Supplemental DIP Order. Borrowers shall use their commercially
reasonable efforts to ensure that the Final Supplemental DIP Order with respect to the Interim
Supplemental DIP Order is entered by the Bankruptcy Court no later than May 30, 2007.
5.16 Canadian Supplemental Final Order. Borrowers shall use commercially
reasonable efforts to ensure that the Canadian Supplemental Final Order is issued by the
Canadian Court no later than June 5, 2007.
5.17 Restructuring Advisers. Borrowers shall continue to retain Miller Buckfire &
Co., LLC as restructuring advisers or retain such other advisor reasonably acceptable to
Administrative Agent and on terms and conditions satisfactory to Administrative Agent until the
Plan Effective Date.
5.18 Intentionally Omitted.
SECTION 6. NEGATIVE COVENANTS
Each Credit Party covenants and agrees that, so long as any Commitment is in effect and
until payment in full of all Obligations (other than contingent indemnification obligations for
which no claim has been made) and cancellation or expiration of all Letters of Credit, such
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Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 6.
6.1 Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly
or indirectly liable with respect to any Indebtedness, except:
(a) . the Obligations;
(b) Indebtedness of any Guarantor Subsidiary to any Borrower or to any other
Guarantor Subsidiary, or of any Borrower to any other Borrower or any Guarantor Subsidiary;
provided, (i) all such Indebtedness shall be evidenced by the Intercompany Note, which shall be
subject to a First Priority Lien pursuant to the Pledge and Security Agreement or the Canadian
Pledge and Security Agreement, (ii) all such Indebtedness shall be unsecured and subordinated in
right of payment to the payment in full of the Obligations pursuant to the terms of the
Intercompany Note, and (iii) any payment by any such Guarantor Subsidiary under any guaranty
of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed
by such Subsidiary to Borrowers or to any of its Subsidiaries for whose benefit such payment is
made;
(c) Indebtedness in an aggregate principal amount not to exceed $12,500,000
incurred to finance the cash consideration payable in connection with Permitted Acquisitions
consummated after the Exit Facilities Conversion Date that is (i) subordinated to the Obligations
on terms (x) customary at the time for high-yield subordinated debt securities issued in a public
offering or (y) reasonably acceptable to Administrative Agent, (ii) matures after, and does not
require any scheduled amortization or other scheduled payments of principal prior to, the
maturity date of the Term Loans (it being understood that such Indebtedness may have
mandatory prepayment, repurchase or redemptions provisions satisfying the requirement of
clause (iii) hereof), (iii) has terms and conditions (other than interest rate, redemption premiums
and subordination terms), taken as a whole, that are (x) not materially less favorable to Borrower
as the terms and conditions customary at the time for high-yield subordinated debt securities
issued in a public offering or (y) reasonably acceptable to Administrative Agent and (iv) is
incurred by a Borrower or a Guarantor; provided that (1) both immediately prior and after giving
effect to the incurrence thereof, (x) no Default shall exist or result therefrom and (y) Holdings
will be in compliance with the covenants set forth in Section 6. 7 and; provided further that a
certificate of an Authorized Officer delivered to Administrative Agent at least 5 Business Days
prior to the incurrence of such Indebtedness, together with a reasonably detailed description of
the material terms and conditions of such Indebtedness or drafts of the documentation relating
thereto, stating that Holdings has determined in good faith that such terms and conditions satisfy
the requirements of this clause (c) shall be conclusive evidence that such terms and conditions
satisfy the foregoing requirement unless Administrative Agent notifies Holdings in writing
within 3 days of receipt of such certificate that it disagrees with such determination;
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(d) Indebtedness incurred by Holdings or any of its Subsidiaries arising from
agreements providing for indemnification, adjustment of purchase price or similar obligations, or
from guaranties or letters of credit, surety bonds or performance bonds securing the performance
of Holdings or any such Subsidiary pursuant to such agreements, in connection with Pem1itted
~ A .. cquisitions or permitted dispositions of a . . ~ y business, assets or Subsidiary of}Ioldings or a11y of
its Subsidiaries;
(e) Indebtedness which may be deemed to exist pursuant to any guaranties,
performance, surety, statutory, appeal or similar obligations (including in connection with
workers' compensation) incurred in the ordinary course of business;
(f) Indebtedness in respect of netting services, overdraft protections and
otherwise in connection with deposit accounts;
(g) guaranties in the ordinary course of business of the obligations of
suppliers, customers, franchisees and licensees of Holdings and its Subsidiaries in an aggregate
amount not to exceed $1,000,000 at any time;
(h) guaranties by any Borrower of Indebtedness of a Guarantor Subsidiary or
guaranties by a Guarantor Subsidiary of Indebtedness of any Borrower or another Guarantor
Subsidiary with respect, in each case, to Indebtedness otherwise permitted to be incurred
pursuant to this Section 6.1; provided, that if the Indebtedness that is being guarantied is
unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or
subordinated to the Obligations;
(i) Indebtedness described in Schedule 6.1, but not any extensions, renewals
or replacements of such Indebtedness except (i) renewals and extensions expressly provided for
in the agreements evidencing any such Indebtedness as the same are in effect on the date of this
Agreement and (ii) refinancings, renewals and extensions of any such Indebtedness if the terms
and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the
Indebtedness being refinanced, renewed or extended, and the average life to maturity thereof is
greater than or equal to that of the Indebtedness being refinanced, renewed or extended; provided,
such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A)
include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being
extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being
renewed, extended or refinanced plus the amount of any interest, premium, or penalties required
to be paid thereon plus fees and expenses associated therewith or (C) be incurred, created or
assumed if any Default or Event of Default has occurred and is continuipg or would result
therefrom;
(j) Indebtedness in respect of Hedge Agreements entered into in the ordinary
course of business and not for speculative purposes;
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(k) Indebtedness of Allied Canada and its Subsidiaries under an unsecured
working capital credit facility provided by The Bank of Nova Scotia or other Canadian lender in
an amount not to exceed $2,600,000 and any (i) renewals and extensions expressly provided for
in the agreements evidencing any such Indebtedness as the same are in effect on the date of this
Agreement and (ii) refinancings, renewals and extensions of any such Indebtedness if the terms
and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the
Indebtedness being refinanced, renewed or extended, and the average life to maturity thereof is
greater than or equal to that of the Indebtedness being refinanced, renewed or extended; provided,
such Indebtedness permitted under the immediately preceding clause (i) or (ii) above shall not (A)
include Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being
extended, renewed or refinanced, (B) exceed in a principal amount the Indebtedness being
renewed, extended or refinanced plus the amount of any interest, premium, or penalties required
to be paid thereon plus fees and expenses associated therewith or (C) be incurred, created or
assumed if any Default or Event of Default has occurred and is continuing or would result
therefrom;
(I) (i) Indebtedness with respect to Capital Leases and purchase money
Indebtedness (including any such Indebtedness incurred to finance the acquisition, construction
or improvement of any fixed or capital asset) in an aggregate amount not to exceed at any time
$10,000,000; provided, any such Indebtedness (A) shall be secured only by the asset acquired,
constructed or improved in connection with the incurrence of such Indebtedness, and (B) shall
constitute not more than I 00% of the aggregate consideration paid with respect to such asset; and
(ii) refinancings, renewals and extensions of any such purchase money Indebtedness if the terms
and conditions thereof are not less favorable to the obligor thereon or to the Lenders than the
Indebtedness being refinanced, renewed or extended, and the average life to maturity thereof is
greater than or equal to that of the Indebtedness being refinanced, renewed or extended; provided,
any such refinancings, renewals and extensions shall not (A) include Indebtedness of an obligor
that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced,
(B) exceed in a principal amount the Indebtedness being renewed, extended or refinanced plus
the amount of any interest, premium, or penalties required to be paid thereon plus fees and
expenses associated therewith or (C) be incurred, created or assumed if any Default or Event of
Default has occurred and is continuing or would result therefrom;
(m) (i) Indebtedness of a Person or Indebtedness attaching to assets of a Person
that, in either case, becomes a Subsidiary or Indebtedness attaching to assets that are acquired by
Holdings or any of its Subsidiaries, in each case after the Exit Facilities Conversion Date as the
result of a Permitted Acquisition, in an aggregate amount not to exceed $10,000,000 at any one
time outstanding, provided that (x) such Indebtedness existed at the time such Person became a
Subsidiary or at the time such assets were acquired and, in each case, was not created in
anticipation thereof and (y) such Indebtedness is not guaranteed in any respect by Holdings or
any Subsidiary (other than by any such Person that so becomes a Subsidiary or that was a
guarantor prior to becoming a Subsidiary), and (ii) any refinancing, refunding, renewal or
extension of any Indebtedness specified in subclause (i) above, provided, that (1) the principal
amount of any such Indebtedness is not increased above the principal amount thereof outstanding
immediately prior to such refinancing, refunding, renewal or extension plus the amount of any
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interest, premium or penalties required to be paid thereon plus fees and expenses associated
therewith, (2) the direct and contingent obligors with respect to such Indebtedness are not
changed and (3) such Indebtedness shall not be secured by any assets other than the assets
securing the Indebtedness being renewed, extended or refinanced;
(n) Indebtedness of Foreign Subsidiaries in an aggregate amount not to exceed
at any time $5,000,000;
( o) Indebtedness of Holdings that is subordinated (including, without
limitation, remedy standstills) to the Obligations and is payable in kind in each case on terms
reasonably satisfactory to Administrative Agent that is issued to directors, officers, consultants,
employees or former employees in consideration for the redemption of Equity Interests permitted
by Section 6.4(d) (it being understood that any Indebtedness of Holdings incurred pursuant to
this clause (p) shall not be subject to the $2,000,000 limitation set forth in Section 6.4(d);
(p) Indebtedness of any Foreign Subsidiary to (i) any other wholly owned
Foreign Subsidiary or (ii) any other Subsidiary to extent permitted as an Investment pursuant to
Section 6.6(j);
( q) Indebtedness representing msurance premmms owmg m the ordinary
course ofbusiness;
(r) unsecured Indebtedness of Holdings to any Foreign Subsidiary for cash
paid to Holdings in an amount not to exceed the amount of such cash paid to Holdings; provided
that all such Indebtedness shall be subordinated in right of payment to the payment in full of the
Obligations;
(s) Indebtedness in an aggregate principal amount not to exceed $20,000,000
(plus any related PIK Interest incurred in connection therewith) incurred after the Exit Facilities
Conversion Date to finance the cash consideration payable in connection with Permitted
Acquisitions pursuant to Section 6.8(f) that (i) is subordinated to the Obligations on terms
reasonably satisfactory to Administrative Agent, (ii) matures no earlier than one year after the
Maturity Date, (iii) does not require any mandatory sinking fund, scheduled payment of principal
or interest (other than interest payable solely in additional subordinated Indebtedness that is
permitted under this Section 6.1(s) ("PIK Interest")), mandatory redemption or redemption at
the option of the holders thereof prior to the date which is no earlier than one year after the
Maturity Date and (iv) is incurred by a Borrower or a Guarantor; provided that (1) both
immediately prior and after giving effect to the incurrence thereof, (x) no Default shall exist or
result therefrom and (y) Holdings will be in compliance with the covenants set forth in Section
6.7;
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(t) Indebtedness in the form of deferred cash payment obligations undertaken
pursuant to the Plan to pre-petition unsecured creditors with respect to their claims in an
aggregate amount not to exceed $1,000,000;
(u) Indebtedness secured solely by split dollar or other life insurance policies
entered into before the Closing Date; provided that recourse for such Indebtedness is limited to
the cash surrender value of such insurance polices;
(v) other unsecured Indebtedness of Holdings and its Subsidiaries m an
aggregate amount not to exceed at any time $7,500,000;
(w) Indebtedness to Sponsor or any Affiliate of Sponsor in an aggregate
principal amount not to exceed $25,000,000 incurred to finance the purchase by Holdings or its
Subsidiaries, directly or indirectly, of any Blue Thunder Equipment and the maintenance, repairs,
taxes, registration fees or other fees or expenses related to the Blue Thunder Equipment or the
purchase or ownership thereof; provided that such Indebtedness (i) matures no earlier than one
year after the initial funding thereof; (ii) is secured solely by the Blue Thunder Equipment
purchased with the proceeds of such Indebtedness; and (iii) does not require any mandatory
sinking fund, scheduled payment of principal or interest, mandatory redemption or redemption at
the option ofthe holders thereof prior to the maturity date of such Indebtedness; and
(x) Indebtedness under the Second Lien Credit Agreement in an aggregate
principal amount at any time outstanding not to exceed $50,000,000 and, subject to the terms of
the Intercreditor Agreement, Indebtedness incurred to refinance, renew or replace such
Indebtedness in whole or in part.
6.2 Liens. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly
or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property
or asset of any kind (including any document or instrument in respect of goods or accounts
receivable) of Holdings or any of its Subsidiaries, whether now owned or hereafter acquired or
licensed, or any income, profits or royalties therefrom, or file or permit the filing of, or permit to
remain in effect, any financing statement or other similar notice of any Lien with respect to any
such property, asset, income, profits or royalties under the UCC of any State, the Canadian PPSA
or under any similar recording or notice statute or under the intellectual property laws, rules or
procedures, except:
(a) Liens in favor of Collateral Agent for the benefit of Secured Parties
granted pursuant to any Credit Document;
(b) Liens for Taxes not yet delinquent or are being contested as required
pursuant to Section 5.3;
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(c) Liens of landlords, banks (and rights of set-off), of carriers,
warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed hy
law (other than any such Lien imposed pursuant to Section 401 (a)(29) or 412(n) of the Internal
Revenue Code or by ERISA), in each case incurred in the ordinary course of business (i) for
amounts not yet overdue or (ii) for amounts that are overdue and that (in the case of any such
amounts overdue for a period in excess of thirty days) are being contested in good faith by
appropriate proceedings, so long as such reserves or other appropriate provisions, if any, as shall
be required by GAAP shall have been made for any such contested amounts;
(d) Liens incurred in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social security, or to secure
the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money or other Indebtedness),
so long as no foreclosure, sale or similar proceedings have been commenced with respect to any
portion of the Collateral on account thereof;
(e) easements, rights-of-way, restnctwns, encroachments, and other minor
defects or irregularities in title, in each case which do not and will not interfere in any material
respect with the ordinary conduct of the business ofHoldings or any of its Subsidiaries;
(f) any interest or title of a lessor or sublessor under any lease of real estate
permitted hereunder, and leases and subleases of real property by Holdings or any of its
Subsidiaries in the ordinary course of business and not interfering in any respect with the
ordinary conduct of or materially detracting from the value of the business of Holdings or such
Subsidiary;
(g) Liens solely on any cash earnest money deposits made by Holdings or any
of its Subsidiaries in connection with any letter of intent or purchase agreement permitted
hereunder;
(h) purported Liens evidenced by the filing of precautionary UCC or
Canadian PPSA financing statements relating solely to operating leases of personal property
entered into in the ordinary course of business;
(i) Liens in favor of customs and revenue authorities arising as a matter of
law to secure payment of customs duties in connection with the importation of goods;
(j) any zoning or similar law or right reserved to or vested in any
governmental office or agency to control or regulate the use of any real property;
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(k) any interest or title of a licensor under any lease of patents, copyrights,
trademarks, or other intellectual property rights permitted hereunder, and licenses and
sublicenses of patents, copyrights, trademarks and other intellectual property rights granted by
Holdings or any of its Subsidiaries in the ordinary course of business and not interfering in any
respect with the ordinary conduct of or materially detracting from the value of the business of
Holdings or such Subsidiary;
(1) Liens described in Schedule 6.2;
(m) Liens securing Indebtedness permitted pursuant to Section 6.1(1); provided
any such Lien shall encumber only the asset acquired, constructed or improved with the proceeds
of such Indebtedness;
(n) bankers' Liens, rights of setoff and other similar Liens existing solely with
respect to cash and Cash Equivalents on deposit in one or more accounts maintained by any
Subsidiary, in each case granted in the ordinary course ofbusiness in favor of the bank or banks
with which such accounts are maintained, securing amounts owing to such bank with respect to
cash management and operating account arrangements, including those involving pooled
accounts and netting arrangements; provided that, unless such Liens are non-consensual and
arise by operation oflaw, in no case shall any such Liens secure (either directly or indirectly) the
repayment of any Indebtedness;
(o) Liens on the assets of Foreign Subsidiaries secunng Indebtedness
permitted to be incurred pursuant to Section 6.1 (n);
(p) Liens ansmg out of judgments or awards m connection with court
proceedings which do not constitute an Event of Default;
( q) Liens securing Indebtedness permitted pursuant to Section 6.1 ( q) and
Section 6.1(u); provided any such Lien shall encumber only the rights and interests under the
insurance policy that secures such Indebtedness;
(r) Liens securing the Existing DIP Credit Agreement Reserve Amount;
(s) Liens securing Indebtedness permitted pursuant to Section 6.l(w);
provided any such Lien shall encumber only the Blue Thunder Equipment purchased with the
proceeds of such Indebtedness and any improvements made to such Blue Thunder Equipment;
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(t) Liens that do not, individually or in the aggregate, secure obligations (or
encumber property with a fair market value) in excess of $5,000,000 at any one time outstanding;
and
(u) Liens on the Collateral securing obligations under the Second Lien Credit
Agreement; provided that such Liens are subordinated to the Liens securing the Obligations in
accordance with the terms of the Intercreditor Agreement.
No reference herein to Liens permitted hereunder (including Permitted Liens), including any
statement or provision as to the acceptability of any Liens (including Permitted Liens), shall in
any way constitute or be construed as to provide for a subordination of any rights of the Agents
or the Lenders hereunder or arising under any of the other Credit Documents in favor of such
Liens.
6.3 No Further Negative Pledges. Except with respect to (a) specific property
encumbered to secure payment of particular Indebtedness or to be sold pursuant to an executed
agreement with respect to a permitted Asset Sale, (b) restrictions by reason of customary
provisions restricting assignments, subletting or other transfers contained in leases, licenses and
similar agreements entered into in the ordinary course of business (provided that such restrictions
are limited to the property or assets secured by such Liens or the property or assets subject to
such leases, licenses or similar agreements, as the case may be) and (c) the Second Lien Credit
Documents, no Credit Party nor any of its Subsidiaries shall enter into any agreement prohibiting
the creation or assumption of any Lien upon any of its properties or assets, whether now owned
or hereafter acquired, to secure the Obligations.
6.4 Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its
Subsidiaries through any manner or means or through any other Person to, directly or indirectly,
declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum
for any Restricted Junior Payment except that (a) any Subsidiary of Holdings may make
Restricted Junior Payments to any Credit Party that is a Domestic Subsidiary of Holdings (and,
in the case of a Restricted Payment by a non-wholly owned Subsidiary of Holdings, to each other
owner of Equity Interests of such Subsidiary based on their relative ownership interests), (b) any
Subsidiary of Holdings that is not a Subsidiary Guarantor may make Restricted Payments to any
other Subsidiary of Holdings that is not a Subsidiary Guarantor, (c) Holdings may pay dividends
in the form of its common Equity Interests, (d) so long as no Default or Event of Default shall
have occurred and be continuing or shall be caused thereby, Holdings may repurchase its Equity
Interests owned by directors, officers, consultants, employees and former employees of Holdings
or make payments to directors, officers, consultants, employees and former employees of
Holdings in connection with stock options, stock appreciation rights, "phantom" stock plans or
similar equity incentives or equity based incentives pursuant to management or other incentive
plans or in connection with the termination, death or disability of such directors, officers,
consultants and employees in an aggregate amount not to exceed $1 ,500,000 (excluding the
principal amount of subordinated notes issued by Holdings under Section 6.1 ( o )) in any Fiscal
Year, (e) Holdings may make payments pursuant to a Management Agreement as permitted in
accordance with Section 6.11(h), (f) Borrowers may make regularly scheduled payments of
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interest in respect of the Second Lien Term Loans in accordance with the terms of the Second
Lien Credit Agreement and the Intercreditor Agreement, and (g) Holdings may make payments
to Sponsor in an aggregate amount not to exceed $5,000,000 in connection with a claim of
substantial contribution by Sponsor in accordance with the Plan.
6.5 Restrictions on Subsidiary Distributions. Except as provided herein, no Credit
Party shall, nor shall it permit any of its Subsidiaries to, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind on the ability of
any Subsidiary of Holdings to (a) pay dividends or make any other distributions on any of such
Subsidiary's Equity Interests owned by Holdings or any other Subsidiary of Holdings, (b) repay
or prepay any Indebtedness owed by such Subsidiary to Holdings or any other Subsidiary of
Holdings, (c) make loans or advances to Holdings or any other Subsidiary of Holdings, or
(d) transfer, lease or license any of its property or assets to Holdings or any other Subsidiary of
Holdings other than restrictions (i) in agreements evidencing Indebtedness permitted by Section
6.1 (1) that impose restrictions on the property so acquired, constructed or improved, (ii) by
reason of customary provisions restricting assignments, subletting or other transfers contained in
leases, licenses, joint venture agreements and similar agreements entered into in the ordinary
course of business, (iii) that are or were created by virtue of any transfer of, agreement to transfer
or option or right with respect to any property, assets or Equity Interests not otherwise prohibited
under this Agreement, (iv) described on Schedule 6.5, (v) in agreements or other arrangements
relating to Indebtedness to the extent incurred pursuant to Section 6.1(n) of a Foreign Subsidiary
of Holdings so long as such restrictions apply only to such Foreign Subsidiary and its Foreign
Subsidiaries, (vi) in agreements relating to Indebtedness to the extent incurred pursuant to
Section 6.1(c), (vii) applicable to Haul Insurance or (viii) existing under the Second Lien Credit
Agreement.
6.6 Investments. No Credit Party shall, nor shall it permit any of its Subsidiaries to,
directly or indirectly, make or own any Investment in any Person, including any Joint Venture,
except:
(a) Investments in Cash and Cash Equivalents;
(b) equity Investments owned as of the Closing Date in any Subsidiary and
Investments made after the Closing Date in Systems and any wholly-owned Guarantor
Subsidiary of Holdings;
(c) Investments (i) in any Securities received in satisfaction or partial
satisfaction thereof from financially troubled account debtors and (ii) deposits, prepayments and
other credits to suppliers made in the ordinary course of business consistent with the past
practices ofHoldings and its Subsidiaries;
(d) intercompany loans to the extent permitted under Section 6.1 (b);
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(e) Consolidated Capital Expenditures with respect to Borrowers and the
Guarantors permitted by Section 6.7(d);
(f) (i) loans to its respective employees in the ordinary course of business
consistent with past practices for travel and entertainment expenses, relocation costs and similar
purposes, and stock option financing in an aggregate principal amount not to exceed $1,500,000
at any time outstanding and (ii) leases of rigs to owner/operators and advances of operating
expenses thereto in the ordinary course of business, provided that such advances for operating
expenses shall not exceed an aggregate amount of $5,000,000 at any time outstanding;
(g) Investments made following the Exit Facilities Conversion Date in
connection with Permitted Acquisitions permitted pursuant to Section 6.8;
(h) Hedge Agreements entered into by Borrowers or any Subsidiary and
permitted pursuant to this Agreement;
(i) Investments described in Schedule 6.6;
(j) other Investments in Subsidiaries other than wholly-owned Guarantor
Subsidiaries of Holdings in an aggregate amount not to exceed at any time $7,500,000;
(k) Investments received in connection with the bankruptcy or reorganization
of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case
in the ordinary course of business;
(1) non-cash consideration issued by the purchaser of assets in connection
with a sale of such assets to the extent permitted by Section 6.8;
(m) cashless loans to officers and directors of Holdings and its Subsidiaries to
purchase Equity Interests of Holdings in the ordinary course ofbusiness;
(n) Holdings may make investments in Haul Insurance in a maximum
aggregate net amount not to exceed the greater of (i) $35,000,000 in any Fiscal Year and (ii) any
amount of capital required to be maintained by Haul Insurance under the laws of its jurisdiction
of incorporation or formation; and
(o) additional Investments so long as the aggregate amount invested, loaned
or advanced pursuant to this clause (determined without regard to any write-downs or write-offs
of such investments, loans and advances) does not exceed $5,000,000 in the aggregate.
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Notwithstanding the foregoing, in no event shall any Credit Party make any Investment
which results in or facilitates in any manner any Restricted Junior payment not otherwise
permitted under the terms of Section 6.4.
6.7 Financial Covenants.
(a) Interest Coverage Ratio. Holdings shall not permit the Interest Coverage
Ratio as of the end of any Fiscal Quarter, beginning with the Fiscal Quarter ending June 30, 2007,
to be less than the correlative ratio indicated:

June 30, 2007 1.35:1.00
September 30, 2007 1.55:1.00
December 31, 2007 1.75:1.00
March 31, 2008 2.00:1.00
June 30, 2008 2.25:1.00
September 30, 2008 2.50:1.00
December 31, 2008 2.50:1.00
March 31, 2009 2.75:1.00
June 30, 2009 2.75:1.00
September 30, 2009 2.75:1.00
December 31, 2009 2.75:1.00
March 31,2010 2.75:1.00
June 30, 2010 2.75:1.00
September 30, 2010 2.75:1.00
December 31 , 201 0 2.75:1.00
Thereafter 3.25:1.00
(b) Leverage Ratio. Holdings shall not permit the Leverage Ratio as of the
end of any Fiscal Quarter, beginning with the Fiscal Quarter ending June 30, 2007, to exceed the
correlative ratio indicated:

June 30, 2007 6.75:1.00
September 30, 2007 5.75:1.00
December 31,2007 5.00:1.00
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March 31, 2008 4.50:1.00
June 30, 2008 3.50:1.00
September 30, 2008 3.50:1.00
December 31, 2008 3.50:1.00
March 31, 2009 3.25:1.00
June 30, 2009 3.25:1.00
September 30, 2009 3.25:1.00
December 31, 2009 3.25:1.00
March 31,2010 3.25:1.00
June 30,2010 3.25:1.00
September 30, 201 0 3.25:1.00
December 31,2010 3.25:1.00
Thereafter 2.75:1.00
(c) Consolidated Adjusted EBITDA. Until the Exit Facilities Conversion
Date, permit Consolidated Adjusted EBITDA as of the end of any month, beginning with the
month ending March 30, 2007, for the twelve month period then ended to be less than the
correlative amount indicated:

March 2007 $46,000,000
April 2007 $43,000,000
May2007 $37,000,000
June 2007 $32,000,000
July 2007 $32,000,000
August 2007 $32,000,000
September 2007 $32,000,000
(d) Maximum Consolidated Capital Expenditures. Holdings shall not, and
shall not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures in any
Fiscal Year indicated below, in an aggregate amount for Holdings and its Subsidiaries in excess
of the sum of (i) the corresponding amount set forth below opposite such Fiscal Year plus (ii)
cash proceeds from a capital contribution to, or Lhe issuance of any Equity Interest in, Holdings
received by Holdings during such Fiscal Year and not required to be applied to prepay Loans
pursuant to Section 2.14(b); provided that such proceeds are applied by Holdings no later than
six months after receipt thereof plus (iii) the Permitted Carry-Forward Amount; provided
however, that for purposes of this Section 6.7(d), if during any Fiscal Year (a "Base Fiscal
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Year") Holdings or its Subsidiaries has entered into a legally binding commitment to make or
incur Capital Expenditures during the immediately following Fiscal Year ("Committed Capital
Expenditures"), Holdings and its Subsidiaries may treat up to $7,500,000 of the aggregate
amount of such Committed Capital Expenditures actually expended within ninety days after the
end of such Base Fiscal Year ("Spent Committed Capital Expenditures") as being expended
during such Base Fiscal Year:

2007 $67,000,000
2008 $70,000,000
2009 $70,000,000
2010 $70,000,000
2011 $70,000,000
2012 $70,000,000
For purposes of this Section 6.7(d), "Permitted Carry-Forward Amount" shall mean, for any
Fiscal Year, the greater of (i) 50% of the amount of Consolidated Excess Cash Flow for the
immediately preceding Fiscal Year not required to prepay the Loans pursuant to Section 2.14(d)
and (ii) the amount equal to the excess, if any, (but in no event more than 50%) of the
corresponding amount of permitted Consolidated Capital Expenditures for the immediately
preceding Fiscal Year set forth in the chart above over the sum of (A) the actual amount of
Consolidated Capital Expenditures for such previous Fiscal Year plus (B) the amount of Spent
Committed Capital Expenditures actually made within ninety days after the end of such previous
Fiscal Year.
Notwithstanding the foregoing, any purchase by Holdings or its Subsidiaries, directly or
indirectly, of the Blue Thunder Equipment and any maintenance, repairs, taxes, registration fees
or other fees or expenses related to the Blue Thunder Equipment or the purchase or ownership
thereof, in each case made during the 2007 Fiscal Year in an amount up to $25,000,000 shall not
be counted against the Consolidated Capital Expenditures limitation for the 2007 Fiscal Year as
set forth above.
(e) Certain Calculations. With respect to any period during which a Permitted
Acquisition or an Asset Sale has occurred (each, a "Subject Transaction") and (a) such
Transaction is equal to or less than $5,000,000, Borrowers may elect, at the time of the closing of
such Subject Transaction, by providing written notice to Administrative Agent, to include pro
forma calculations with respect to such Subject Transaction and (b) such Transaction is greater
than $5,000,000 Borrowers shall, in each case for purposes of determining compliance with the
financial covenants set forth in this Section 6.7, Consolidated Adjusted EBTTDA shall be
calculated with respect to such period on a pro forma basis (including pro forma adjustments
arising out of events which are directly attributable to a specific transaction, are factually
supportable and are expected to have a continuing impact, in each case determined on a basis
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consistent with Article 11 of Regulation S-X promulgated under the Securities Act and as
interpreted by the staff of the Securities and Exchange Commission, which would include cost
savings resulting from head count reduction, closure of facilities and similar restructuring
charges, which pro forma adjustments shall be certified by the chief financial officer of Holdings)
using the historical (audited, if available) financial statements of any business so acquired or to
be acquired or sold or to be sold and the consolidated financial statements of Holdings and its
Subsidiaries which shall be reformulated as if such Subject Transaction, and any Lndebtedness
incurred or repaid in connection therewith, had been consummated or incurred or repaid at the
beginning of such period (and assuming that such Indebtedness bears interest during any portion
of the applicable measurement period prior to the relevant acquisition at the weighted average of
the interest rates applicable to outstanding Loans incurred during such period).
(f) Certain Amendments. Notwithstanding anything to the contrary set forth
herein, if the Exit Facilities Conversion Date occurs:
(i) on or after June 1, 2007 and prior to July I, 2007, the minimum
Interest Coverage Ratio and the maximum Leverage Ratio required pursuant to Sections
6.1 (a) and 6.1 (b) hereof for the end of any Fiscal Quarter through the Fiscal Quarter
ending June 30, 2008 may be amended with the consent solely of each of the Borrowers
and of the Administrative Agent, solely in order to account for the financial impact of the
delayed implementation of revised labor and customer contracts of Borrowers and their
Subsidiaries as a direct result of the Exit Facility Conversion Date not occurring on or
before May 31, 2007; or
(ii) on or after July 1, 2007 and prior to October 1, 2007, the
minimum Interest Coverage Ratio and the maximum Leverage Ratio required pursuant to
Sections 6.1(a) and 6.l(b) hereof for the end of any Fiscal Quarter through the Fiscal
Quarter ending September 30, 2008 may be amended with the consent solely of each of
the Borrowers and of the Administrative Agent, solely in order to account for the
financial impact ofthe delayed implementation of revised labor and customer contracts of
Borrowers and their Subsidiaries as a direct result of the Exit Facility Conversion Date
not occurring on or before May 31, 2007;
provided, that in the case of each of clauses (i) and (ii) above, the Administrative Agent
and the Borrowers shall endeavor, to the extent practicable, to preserve the relative
difference prior to any such amendment between (x) the minimum Interest Coverage
Ratio requirement and the projected Interest Coverage Ratio for such periods in
accordance with the updated business plan delivered to Syndication Agent on or about
April 11, 2007 or (y) the maximum Leverage Ratio requirement and the projected
Leverage Ratio for such periods in accunlance with the updated business plan delivered
to Syndication Agent on or about April 11, 2007, as applicable.
6.8 Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party
shall, nor shall it permit any of its Subsidiaries (other than Inactive Subsidiaries) to, enter into
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any transaction of merger, amalgamation or consolidation, reorganization or liquidate, wind-up
or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease or license,
exchange, transfer or otherwise dispose of, in one transaction or a series of transactions, all or
any part of its business, assets or property of any kind whatsoever, whether real, personal or
mixed and whether tangible or intangible, whether now owned or hereafter acquired, leased or
licensed, or acquire by purchase or otherwise (other than purchases or other acquisitions of
inventory, materials and equipment and Capital Expenditures in the ordinary course of business)
the business, property or fixed assets of, or stock or other evidence of beneficial ownership of,
any Person or any division or line of business or other business unit of any Person, except:
(a) any Subsidiary of Holdings may be merged or amalgamated with or into
Holdings or any Subsidiary of Holdings, or be liquidated, wound up or dissolved, or all or any
part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise
disposed of, in one transaction or a series of transactions, to Holdings or any Subsidiary;
provided, in the case of such a merger or amalgamation, (i) if any Borrower is a party to such
merger or amalgamation, such Borrower shall be the continuing or surviving Person and (ii)
subject to the foregoing clause (i), if any Guarantor Subsidiary is a party to such merger or
amalgamation, such Guarantor Subsidiary shall be the continuing or surviving Person;
(b) upon no less than thirty (30) days prior written notice to Administrative
Agent, Holdings may merge with and into any Subsidiary, if the sole purpose and effect of such
merger is to effect a so-called "reincorporation merger" in which the surviving corporation will
be incorporated in the State of Delaware and if all of the following conditions are met: (i) no
Default or Event of Default shall exist at the time of and after giving effect to such merger, (ii)
the Collateral Agent's Liens on the Collateral shall remain a perfected First Priority Lien, and
Holdings shall cause the surviving corporation to execute and deliver to Administrative Agent
such documents, instruments, financing statements, and amendments to Loan Documents as
Administrative Agent or Collateral Agent may reasonably request to continue the perfection and
priority of the Collateral Agent's Liens on the Collateral;
(c) sales or other dispositions of assets that do not constitute Asset Sales;
(d) Asset Sales, the proceeds of which (valued at the principal amount thereof
in the case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair
market value in the case of other non-Cash proceeds) when aggregated with the proceeds of all
other Asset Sales made within the same Fiscal Year, arc no more than $7,500,000 and when
aggregated with the proceeds of all other Asset Sales made since the Closing Date, are not more
than $15,000,000; provided (1) the consideration received for such assets shall be in an amount
at least equal to the fair market value thereof (determined in good faith by the board of directors
of Holdings (or similar governing body) or an Executive Officer of Holdings authorized by such
governing body), (2) no less than 75% thereof shall be paid in Cash, and (3) the Net Asset Sale
Proceeds thereof shall be applied as required by Section 2.14(a);
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(e) disposals of obsolete, worn out or surplus property;
(f) Permitted Acquisitions consummated following the Exit Facilities
Conversion Date, the consideration for which constitutes (i) not more than $10,000,000 in the
aggregate in any Fiscal Year, and (ii) not more than $25,000,000 in the aggregate from the
Closing Date to the date of determination;
(g) Permitted Acquisitions consummated following the Exit Facilities
Conversion Date, the cash consideration for which constitutes not more than $60,000,000 in the
aggregate from the Closing Date to the date of determination; provided that (1) the cash
consideration for such Permitted Acquisitions are funded solely with the proceeds of (i) the sale
by Holdings of Equity Interests (other than Disqualified Equity Interests) to Sponsor or one of its
Controlled Investment Affiliates and/or (ii) Indebtedness permitted pursuant to Sections 6.1 (c)
and 6.l(s) and (2) no less than 40% of the cash consideration for such Permitted Acquisitions are
funded with the proceeds of Equity Interests described in clause (i) of this proviso;
(h) Investments made in accordance with Section 6.6;
(i) any Foreign Subsidiary of Holdings may be merged with or into a wholly-
owned Foreign Subsidiary of Holdings, or be liquidated, wound up or dissolve, or all or any part
of its business, property or assets may be conveyed, sold, leased, transferred or otherwise
disposed of, in one transaction or a series of transactions, to a wholly owned Foreign Subsidiary
of Holdings;
(j) the Planned Asset Sales as described on Schedule 6.8(a);
(k) sale of terminal locations or related real estate which is no longer needed
or useful in the business of the Credit Parties and having a value, in the case of any single parcel
or related series of parcels sold in one transaction or a series of transaction, does not exceed
$1 ,500,000; and
(I) transactions expressly provided for in the Plan to occur on or substantially
contemporaneously with the Plan Effective Date and described on Schedule 6.8(b ).
6.9 Disposal of Subsidiary Interests. Except for any sale of all of its interests in the
Equity Interests of any of its Subsidiaries in compliance with the provisions of Section 6.8 and
Liens permitted under Sections 6.2(a) no Credit Party shall, nor shall it permit any of its
Subsidiaries to, (a) directly or indirectly sell, assign, pledge or otherwise encumber or dispose of
any Equity Interests of any of its Subsidiaries, except to qualify directors if required by
applicable law; or (b) permit any of its Subsidiaries directly or indirectly to sell, assign, pledge or
otherwise encumber or dispose of any Equity Interests of any of its Subsidiaries, except to
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another Credit Party (subject to the restnctwns on such disposition otherwise imposed
hereunder), or to qualify directors if required by applicable law.
6.10 Sales and Lease-Backs. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or other
surety with respect to any lease of any property (whether real, personal or mixed), whether now
owned or hereafter acquired, which such Credit Party (a) has sold or transferred or is to sell or to
transfer to any other Person (other than Holdings or any of its Subsidiaries), or (b) intends to use
for substantially the same purpose as any other property which has been or is to be sold or
transferred by such Credit Party to any Person (other than Holdings or any of its Subsidiaries) in
connection with such lease unless (1) the sale of such property is permitted pursuant to Section
6.8 and (2) any Capital Lease or Liens arising in connection therewith are permitted by Sections
6.1 and 6.2, as the case may be.
6.11 Transactions with Shareholders and Affiliates. No Credit Party shall, nor shall
it permit any of its Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction (including the purchase, sale, lease or exchange of any property or the rendering of
any service) with any Affiliate of Holdings on terms that are less favorable to Holdings or that
Subsidiary, as the case may be, than those that might be obtained at the time from a Person who
is not such a holder or Affiliate; provided, the foregoing restriction shall not apply to (a) any
transaction between or among the Credit Parties; (b) reasonable and customary fees paid to
members of the board of directors (or similar governing body) of Holdings and its Subsidiaries;
(c) compensation arrangements for officers and other employees of Holdings and its Subsidiaries
entered into in the ordinary course of business; (d) transactions described in Schedule 6.11; (e)
Restricted Junior Payments permitted pursuant to Section 6.4 (other than those permitted under
Section 6.4( d)), (f) Investments may be made to the extent permitted by Sections 6.1 (p) and
6.6(j), (g) the provision of officers' and directors indemnification and insurance in the ordinary
course of business to the extent permitted by applicable law, (h) after the Exit Facilities
Conversion Date, payments of management fees pursuant to a Management Agreement in an
aggregate amount not to exceed $1,500,000 per Fiscal Year plus reasonable out-of-pocket
expenses of the manager thereunder; provided that (A) the payments of such amounts shaii be
subordinated to the Obligations on terms reasonably satisfactory to Administrative Agent, (B) no
Default or Event of Default shall have occurred and be continuing at the time of such payments
or shall be caused thereby, (C) the Leverage Ratio as of the last day of the Fiscal Quarter most
recently ended for which financial statements have been delivered pursuant to Section 5.l(b) or
Section 5.1(c) shall not exceed 1.75:1.00 and (D) the Consolidated Excess Cash Flow for the
Fiscal Year most recently ended shall be greater than $0; (i) customary cash management
arrangements with Foreign Subsidiaries in the ordinary course of business; and (i) sale for less
than fair market value to management of Holdings or any Subsidiary of any common Equity
Interests ofHoldings
6.12 Conduct of Business. From and after the Closing Date, no Credit Party shall, nor
shall it permit any of its Subsidiaries to, engage in any business other than (i) the businesses
engaged in by such Credit Party on the Closing Date and similar or related businesses and (ii)
such other lines of business as may be consented to by Requisite Lenders.
135
6.13 Amendments or Waivers of Organizational Documents and Certain
Agreements. No Credit Party shall, nor shall it permit any of its Subsidiaries to, agree to any
amendment, restatement, supplement or other modification to, or waiver of, any of its
Organizational Documents, any Management Agreement or, after the Exit Facilities Conversion
Date, any of its rights under the Plan which in each case is materially adverse to the Lenders,
without in each case obtaining the prior written consent of Requisite Lenders to such amendment,
restatement, supplement or other modification or waiver.
6.14 Haul Insurance. Haul Insurance shall have no assets or liabilities other than
those associated with the provision of insurance and services related thereto, and shall not
conduct and or engage in any business activities other than such business and activities as they
relate to the provision of insurance and services related thereto substantially all of which
insurance and related services are provided for the benefit of Holdings or their Subsidiaries. The
insurance and related services of Haul Insurance not provided for the benefit of Holdings or its
Subsidiaries shall be provided to third parties and the insurance premiums charged and collected
with respect thereto shall be segregated from any cash or other assets of Holdings and its other
Subsidiaries. Haul Insurance shall take appropriate measures (through reinsurance and other
appropriate means) to reduce the insurance risk and exposure relating to such third party
insurance to an amount not in excess of the capital provided to support such activities.
6.15 Chapter 11 Claims; Adequate Protection. Prior to the Exit Facilities
Conversion Date, no Credit Party shall, nor shall it permit any of its Subsidiaries to, incur, create,
assume, suffer to exist or permit (other than those existing, and disclosed to Syndication Agent,
on the date hereof) any (i) administrative expense, unsecured claim, or other super-priority claim
or Lien (except Permitted Liens) that is pari passu with or senior to the claims of the Secured
Parties against the Credit Parties hereunder, or apply to the Bankruptcy Court or the Canadian
Court for authority to do so, except for the Carve-Out, or (ii) obligation to make adequate
protection payments, or otherwise provide adequate protection, other than as approved by the
Requisite Lenders.
6.16 DIP Orders and Canadian Orders. Prior to the Exit Facilities Conversion Date,
no Credit Party shall make or permit to be made any change, amendment or modification, or any
application or motion for any change, amendment or modification, to the Interim DIP Order, the
Final DIP Order, the Canadian Interim Order or Canadian Final Order, other than as approved in
writing by the Requisite Lenders.
6.17 Limitation on Prepayments of Pre-Petition Obligations. Prior to the Exit
Facilities Conversion Date, and except as otherwise permitted pursuant to the Interim DIP Order,
the Final DIP Order, the Canadian Interim Order, Canadian Final Order, the order of the
Bankruptcy Court granting Debtors' Motion for Authority to Pay Prepetition Automobile
Liability Claims and to Enter into a Corrective Endorsement with Respect to One of the
Automobile Policies" entered on September 25, 2006 or otherwise consented to by the Requisite
Lenders, no Credit Party shall (i) make any payment or prepayment on or redemption or
acquisition for value (including, without limitation, by way of depositing with the trustee with
respect thereto money or securities before due for the purpose of paying when due) of any
Prepetition Indebtedness or other pre-Petition Date obligations of any Credit Party, (ii) pay any
interest on any pre-Petition Date Indebtedness of any Credit Party (whether in cash, in kind
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securities or otherwise), or (iii) make any payment or create or permit any Lien pursuant to
Section 361 of the Bankruptcy Code (or pursuant to any other provision of the Bankruptcy Code
authorizing adequate protection), or apply to the Bankruptcy Court or the Canadian Court for the
authority to do any of the foregoing; provided, that (x) Borrowers may make payments for
administrative expenses that are allowed and payable under Sections 328, 330 and 331 of the
Bankruptcy Code, and (y) Borrowers may make payments permitted by the order of the
Bankruptcy Court entered prior to March 16, 2007. In addition, no Credit Party shall permit any
of its Subsidiaries to make any payment, redemption or acquisition which such Credit Party is
prohibited from making under the provisions of this Section 6.17.
6.18 Fiscal Year. No Credit Party shall, nor shall it permit any of its Subsidiaries to
change its Fiscal Year-end from December 31.
6.19 Repayment of Indebtedness. Except pursuant to the Plan and except as
specifically permitted hereunder, prior to the Exit Facilities Conversion Date no Credit Party
shall make any payment or transfer with respect to any Lien or Indebtedness incurred or arising
prior to the filing of the Cases that is subject to the automatic stay provisions of the Bankruptcy
Code or the Canadian Stay Order whether by way of "adequate protection" under the Bankruptcy
Code or otherwise except pursuant to an order of the Bankruptcy Court or the Canadian Court
after notice and hearing.
6.20 Reclamation Claims. No Credit Party shall hereafter enter into any agreement to
return any of its inventory to any of its creditors for application against any Prepetition
Indebtedness, trade payables incurred prior to the Petition Date or other prepetition claims under
Section 546(g) of the Bankruptcy Code or otherwise or allow any creditor to take any setoff or
recoupment against such Prepetition Indebtedness, trade payables incurred prior to the Petition
Date or other prepetition claims based upon any such return pursuant to Section 553(b)(l) of the
Bankruptcy Code or otherwise if, after giving effect to any such agreement, setoff or recoupment,
the aggregate amount of Prepetition Indebtedness, prepetition trade payables and other
prepetition claims subject to all such agreements, setoffs and recoupments since the Petition Date
would exceed $400,000. Subject to the foregoing limitation, Borrowers shall be permitted to
make payments in respect of trade payables incurred prior to the Petition Date and wages,
commissions and benefits owed to employees and independent contractors that are in the
ordinary course of business so long as such payments are consistent with orders entered prior to
March 17, 2006 and are approved by the Bankruptcy Court.
6.21 Chapter 11 Claims. No Credit Party shall incur, create, assume, suffer to exist or
permit any other super-priority administrative claim which is pari passu with or senior to the
claims of Agents and Lenders against Borrowers and the other Credit Parties, except as set forth
in Section 2.24.
6.22 Limitation on Voluntary Payments and Amendments or Waivers of the
Second Lien Credit Agreement. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, (a) make or offer to make any optional or voluntary payment, prepayment,
repurchase or redemption of, or otherwise voluntarily or optionally defease any Second Lien
Term Loans or segregate funds for any such payment, prepayment, repurchase, redemption or
defeasance or (b) agree to any amendment, restatement, supplement or other modification to, or
137
waiver of, any of its rights under the Second Lien Credit Agreement or the other Second Lien
Credit Documents after the Restatement Date that is prohibited under Section 5.3 of the
Intercreditor Agreement without in each case obtaining the prior written consent of Requisite
Lenders to such amendment, restatement, supplement or other modification or waiver.
SECTION 7. GUARANTY
7.1 Guaranty of the Obligations. Subject to the prov1s10ns of Section 7 .2,
Guarantors jointly and severally hereby irrevocably and unconditionally guaranty to
Administrative Agent for the ratable benefit of the Beneficiaries the due and punctual payment in
full of all Obligations when the same shall become due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise (including amounts that would
become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, 11 U.S.C. 362(a) or under any other applicable bankruptcy, insolvency or similar law
now or hereafter in effect) (collectively, the "Guaranteed Obligations").
7.2 Contribution by Guarantors. All Guarantors desire to allocate among
themselves (collectively, the "Contributing Guarantors"), in a fair and equitable manner, their
obligations arising under this Guaranty. Accordingly, in the event any payment or distribution is
made on any date by a Guarantor (a "Funding Guarantor") under this Guaranty such that its
Aggregate Payments exceeds its Fair Share as of such date, such Funding Guarantor shall be
entitled to a contribution from each of the other Contributing Guarantors in an amount sufficient
to cause each Contributing Guarantor's Aggregate Payments to equal its Fair Share as of such
date. "Fair Share" means, with respect to a Contributing Guarantor as of any date of
determination, an amount equal to (a) the ratio of (i) the Fair Share Contribution Amount with
respect to such Contributing Guarantor to (ii) the aggregate of the Fair Share Contribution
Amounts with respect to all Contributing Guarantors multiplied by (b) the aggregate amount paid
or distributed on or before such date by all Funding Guarantors under this Guaranty in respect of
the obligations Guaranteed. "Fair Share Contribution Amount" means, with respect to a
Contributing Guarantor as of any date of determination, the maximum aggregate amount of the
obligations of such Contributing Guarantor under this Guaranty that would not render its
obligations hereunder or thereunder subject to avoidance as a fraudulent transfer or conveyance
under Section 548 of Title 11 of the United States Code or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect; provided, solely for purposes of calculating
the "Fair Share Contribution Amount" with respect to any Contributing Guarantor for
purposes of this Section 7 .2, any assets or liabilities of such Contributing Guarantor arising by
virtue of any rights to subrogation, reimbursement or indemnification or any rights to or
obligations of contribution hereunder shal1 not be considered as assets or liabilities of such
Contributing Guarantor. "Aggregate Payments" means, with respect to a Contributing
Guarantor as of any date of determination, an amount equal to (1) the aggregate amount of all
payments and distributions made on or before such date by such Contributing Guarantor in
respect of this Guaranty (including in respect of this Section 7.2), minus (2) the aggregate
amount of all payments received on or before such date by such Contributing Guarantor from the
other Contributing Guarantors as contributions under this Section 7 .2. The amounts payable as
contributions hereunder shall be determined as of the date on which the related payment or
distribution is made by the applicable Funding Guarantor. The allocation among Contributing
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Guarantors of their obligations as set forth in this Section 7.2 shall not be construed in any way
to limit the liability of any Contributing Guarantor hereunder. Each Guarantor is a third party
beneficiary to the contribution agreement set forth in this Section 7 .2.
7.3 Payment by Guarantors. Subject to Section 7.2, Guarantors hereby jointly and
severally agree, in furtherance ofthe foregoing and not in limitation of any other right which any
Beneficiary may have at law or in equity against any Guarantor by virtue hereof, that upon the
failure of Borrowers to pay any of the Guaranteed Obligations when and as the same shall
become due, whether at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise (including amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. 362(a) or under any
other applicable bankruptcy, insolvency or similar law now or hereafter in effect), Guarantors
will upon demand pay, or cause to be paid, in Cash, to Administrative Agent for the ratable
benefit of Beneficiaries, an amount equal to the sum of the unpaid principal amount of all
Guaranteed Obligations then due as aforesaid, accrued and unpaid interest on such Guaranteed
Obligations (including interest which, but for Borrowers' becoming the subject of a case under
the Bankruptcy Code, would have accrued on such Guaranteed Obligations, whether or not a
claim is allowed against Borrowers for such interest in the related bankruptcy case) and all other
Guaranteed Obligations then owed to Beneficiaries as aforesaid.
7.4 Liability of Guarantors Absolute. Each Guarantor agrees that its obligations
hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by
any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other
than payment in full of the Guaranteed Obligations. In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of collectability.
This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Administrative Agent may enforce this Guaranty upon the occurrence of
an Event of Default notwithstanding the existence of any dispute between Borrowers and any
Beneficiary with respect to the existence of such Event of Default;
(c) the obligations of each Guarantor hereunder are independent of the
obligations of Borrowers and the obligations of any other guarantor (including any other
Guarantor) of the obligations of Borrowers, and a separate action or actions may be brought and
prosecuted against such Guarantor whether any or not any action is brought against Borrowers or
any of such other guarantors and whether or not any Borrower is joined in any such action or
actions;
(d) payment by any Guarantor of a portion, but not all, of the Guaranteed
Obligations shall in no way limit, affect, modify or abridge any Guarantor's liability for any
portion of the Guaranteed Obligations which has not been paid. Without limiting the generality
of the foregoing, if Administrative Agent is awarded a judgment in any suit brought to enforce
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any Guarantor's covenant to pay a portion of the Guaranteed Obligations, such judgment shall
not be deemed to release such Guarantor from its covenant to pay the portion of the Guaranteed
Obligations that is not the subject of such suit, and such judgment shall not, except to the extent
satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's liability
hereunder in respect of the Guaranteed Obligations;
(e) any Beneficiary, upon such terms as it deems appropriate, without notice
or demand and without affecting the validity or enforceability hereof or giving rise to any
reduction, limitation, impairment, discharge or termination of any Guarantor's liability hereunder,
from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise
change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle,
compromise, release or discharge, or accept or refuse any offer of performance with respect to,
or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or
subordinate the payment of the same to the payment of any other obligations; (iii) request and
accept other guaranties ofthe Guaranteed Obligations and take and hold security for the payment
hereof or the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise,
settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security
for payment of the Guaranteed Obligations, any other guaranties of the Guaranteed Obligations,
or any other obligation of any Person (including any other Guarantor) with respect to the
Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the
benefit of such Beneficiary in respect hereof or the Guaranteed Obligations and direct the order
or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have
against any such security, in each case as such Beneficiary in its discretion may determine
consistent herewith or the applicable Hedge Agreement and any applicable security agreement,
including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales,
whether or not every aspect of any such sale is commercially reasonable, and even though such
action operates to impair or extinguish any right of reimbursement or subrogation or other right
or remedy of any Guarantor against Borrowers or any security for the Guaranteed Obligations;
(vi) exercise the Exit Facilities Option; and (vii) exercise any other rights available to it under the
Credit Documents or any Hedge Agreements; and
(f) this Guaranty and the obligations of Guarantors hereunder shall be valid
and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or
termination for any reason (other than payment in full of the Guaranteed Obligations), including
the occurrence of any of the following, whether or not any Guarantor shall have had notice or
knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or
election not to assert or enforce, or the stay or enjoining, by order of court, by operation oflaw or
otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy
(whether arising under the Credit Documents or any Hedge Agreements, at law, in equity or
otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with
respect to any other guaranty of or security for the payment of the Guaranteed Obligations;
(ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any
of the terms or provisions (including provisions relating to events of default) hereof, any of the
other Credit Documents, any of the Hedge Agreements or any agreement or instrument executed
pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each
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case whether or not in accordance with the terms hereof or such Credit Document, such Hedge
Agreement or any agreement relating to such other guaranty or security; (iii) the Guaranteed
Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or
unenforceable in any respect; (iv) the application of payments received from any source (other
than payments received pursuant to the other Credit Documents or any of the Hedge Agreements
or from the proceeds of any security for the Guaranteed Obligations, except to the extent such
security also serves as collateral for indebtedness other than the Guaranteed Obligations) to the
payment of indebtedness other than the Guaranteed Obligations, even though any Beneficiary
might have elected to apply such payment to any part or all of the Guaranteed Obligations;
(v) any Beneficiary's consent to the change, reorganization or termination of the corporate
structure or existence of Holdings or any of its Subsidiaries and to any corresponding
restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a
security interest in any collateral which secures any of the Guaranteed Obligations; (vii) any
defenses, set-offs or counterclaims which Borrowers may allege or assert against any Beneficiary
in respect of the Guaranteed Obligations, including failure of consideration, breach of warranty,
payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any
other act or thing or omission, or delay to do any other act or thing, which may or might in any
manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guaranteed
Obligations.
7.5 Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of
Beneficiaries: (a) any right to require any Beneficiary, as a condition of payment or performance
by such Guarantor, to (i) proceed against Borrowers, any other guarantor (including any other
Guarantor) of the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust
any security held from Borrowers, any such other guarantor or any other Person, (iii) proceed
against or have resort to any balance of any Deposit Account or credit on the books of any
Beneficiary in favor of Borrowers or any other Person, or (iv) pursue any other remedy in the
power of any Beneficiary whatsoever; (b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of Borrowers or any other Guarantor including any
defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed
Obligations or any agreement or instrument relating thereto or by reason of the cessation of the
liability of Borrowers or any other Guarantor from any cause other than payment in full of the
Guaranteed Obligations; (c) any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount nor in other respects more
burdensome than that of the principal; (d) any defense based upon any Beneficiary's errors or
omissions in the administration of the Guaranteed Obligations, except behavior which amounts
to willful misconduct, gross negligence or bad faith; (e) (i) any principles or provisions of law,
statutory or otherwise, which are or might be in conflict with the terms hereof and any legal or
equitable discharge of such Guarantor's obligations hereunder, (ii) the benefit of any statute of
limitations affecting such Guarantor's liability hereunder or the enforcement hereof, (iii) any
rights to set-offs, recoupments and counterclaims, and (iv) promptness, diligence and any
requirement that any Beneficiary protect, secure, perfect or insure any security interest or lien or
any property subject thereto; (f) notices, demands, presentments, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including acceptance hereof, notices of
default hereunder, the Hedge Agreements or any agreement or instrument related thereto, notices
of any renewal, extension or modification of the Guaranteed Obligations or any agreement
related thereto, notices of any extension of credit to Borrowers and notices of any of the matters
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referred to in Section 7.4 and any right to consent to any thereof; and (g) any defenses or benefits
that may be derived from or afforded by law which limit the liability of or exonerate guarantors
or sureties, or which may conflict with the terms hereof.
7.6 Guarantors' Rights of Subrogation, Contribution; etc, Until the Guaranteed
Obligations (other than contingent indemnification obligations for which no claim has been made)
shall have been indefeasibly paid in full and the Commitments shall have terminated and all
Letters of Credit shall have expired or been cancelled, each Guarantor hereby waives any claim,
right or remedy, direct or indirect, that such Guarantor now has or may hereafter have against
Borrowers or any other Guarantor or any of its assets in connection with this Guaranty or the
performance by such Guarantor of its obligations hereunder, in each case whether such claim,
right or remedy arises in equity, under contract, by statute, under common law or otherwise and
including (a) any right of subrogation, reimbursement or indemnification that such Guarantor
now has or may hereafter have against Borrowers with respect to the Guaranteed Obligations, (b)
any right to enforce, or to participate in, any claim, right or remedy that any Beneficiary now has
or may hereafter have against Borrowers, and (c) any benefit of, and any right to participate in,
any collateral or security now or hereafter held by any Beneficiary. In addition, until the
Guaranteed Obligations (other than contingent indemnification obligations for which no claim
has been made) shall have been indefeasibly paid in full and the Commitments shall have
terminated and all Letters of Credit shall have expired or been cancelled, each Guarantor shall
withhold exercise of any right of contribution such Guarantor may have against any other
guarantor (including any other Guarantor) of the Guaranteed Obligations, including any such
right of contribution as contemplated by Section 7 .2. Each Guarantor further agrees that, to the
extent the waiver or agreement to withhold the exercise of its rights of subrogation,
reimbursement, indemnification and contribution as set forth herein is found by a court of
competent jurisdiction to be void or voidable for any reason, any rights of subrogation,
reimbursement or indemnification such Guarantor may have against Borrowers or against any
collateral or security, and any rights of contribution such Guarantor may have against any such
other guarantor, shall be junior and subordinate to any rights any Beneficiary may have against
Borrowers, to all right, title and interest any Beneficiary may have in any such collateral or
security, and to any right any Beneficiary may have against such other guarantor. If any amount
shall be paid to any Guarantor on account of any such subrogation, reimbursement,
indemnification or contribution rights at any time when all Guaranteed Obligations (other than
contingent indemnification obligations for which no claim has been made) shall not have been
finally and indefeasibly paid in full, such amount shall be held in trust for Administrative Agent
on behalf of Beneficiaries and shall forthwith be paid over to Administrative Agent for the
benefit of Beneficiaries to be credited and applied against the Guaranteed Obligations, whether
matured or unmatured, in accordance with the terms hereof.
7.7 Subordination of Other Obligations. Any Indebtedness of Borrowers or any
Guarantor now or hereafter held by any Guarantor (the "Obligee Guarantor") is hereby
subordinated in right of payment to the Guaranteed Obligations, and any such Indebtedness
collected or received by the Obligee Guarantor after an Event of Default has occurred and is
continuing shall be held in trust for Administrative Agent on behalf of Beneficiaries and shall
forthwith be paid over to Administrative Agent for the benefit of Beneficiaries to be credited and
applied against the Guaranteed Obligations but without affecting, impairing or limiting in any
manner the liability of the Obligee Guarantor under any other provision hereof.
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7.8 Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain
in effect until all of the Guaranteed Obligations shall have been paid in full and the
Commitments shall have terminated and all Letters of Credit shall have expired or been
cancelled. Each Guarantor hereby irrevocably waives any right to revoke this Guaranty as to
future transactions giving rise to any Guaranteed Obligations.
7.9 Authority of Guarantors or Borrowers. It is not necessary for any Beneficiary
to inquire into the capacity or powers of any Guarantor or any Borrower or the officers, directors
or any agents acting or purporting to act on behalf of any of them.
7.10 Financial Condition of Borrowers. Any Credit Extension may be made to any
Borrower or continued from time to time, and any Hedge Agreements may be entered into from
time to time, in each case without notice to or authorization from any Guarantor regardless of the
financial or other condition of Borrowers at the time of any such grant or continuation or at the
time such Hedge Agreement is entered into, as the case may be. No Beneficiary shall have any
obligation to disclose or discuss with any Guarantor its assessment, or any Guarantor's
assessment, of the financial condition of Borrowers. Each Guarantor has adequate means to
obtain information from Borrowers on a continuing basis concerning the financial condition of
any Borrower and their ability to perform its obligations under the Credit Documents and the
Hedge Agreements, and each Guarantor assumes the responsibility for being and keeping
informed of the financial condition of Borrowers and of all circumstances bearing upon the risk
of nonpayment of the Guaranteed Obligations. Each Guarantor hereby waives and relinquishes
any duty on the part of any Beneficiary to disclose any matter, fact or thing relating to the
business, operations or conditions of Borrowers now known or hereafter known by any
Beneficiary.
7.11 Bankruptcy, etc.
(a) So long as any Guaranteed Obligations (other than contingent
indemnification obligations for which no claim has been made) remain outstanding, no
Guarantor shall, without the prior written consent of Administrative Agent acting pursuant to the
instructions of Requisite Lenders, commence or join with any other Person in commencing any
bankruptcy, reorganization or insolvency case or proceeding of or against Borrowers or any other
Guarantor. The obligations of Guarantors hereunder shall not be reduced, limited, impaired,
discharged, deferred, suspended or terminated by any case or proceeding, voluntary or
involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of Borrowers or any other Guarantor or by any defense which Borrowers or any
other Guarantor may have by reason of the order, decree or decision of any court or
administrative body resulting from any such proceeding.
(b) Each Guarantor acknowledges and agrees that any interest on any portion
of the Guaranteed Obligations which accrues after the commencement of any case or proceeding
referred to in clause (a) above (or, if interest on any portion of the Guaranteed Obligations ceases
to accrue by operation of law by reason of the commencement of such case or proceeding, such
interest as would have accrued on such portion of the Guaranteed Obligations if such case or
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proceeding had not been commenced) shall be included in the Guaranteed Obligations because it
is the intention of Guarantors and Beneficiaries that the Guaranteed Obligations which are
guaranteed by Guarantors pursuant hereto should be determined without regard to any rule of
law or order which may relieve Borrowers of any portion of such Guaranteed Obligations.
Guarantors will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the
benefit of creditors or similar Person to pay Administrative Agent, or allow the claim of
Administrative Agent in respect of, any such interest accruing after the date on which such case
or proceeding is commenced.
(c) In the event that all or any portion of the Guaranteed Obligations are paid
by Borrowers, the obligations of Guarantors hereunder shall continue and remain in full force
and effect or be reinstated, as the case may be, in the event that all or any part of such payment(s)
are rescinded or recovered directly or indirectly from any Beneficiary as a preference, fraudulent
transfer or otherwise, and any such payments which are so rescinded or recovered shall
constitute Guaranteed Obligations for all purposes hereunder.
7.12 Discharge of Guaranty Upon Sale of Guarantor. (a) If all of the Equity
Interests of any Guarantor or any of its successors in interest hereunder shall be sold or otherwise
disposed of (including by merger or consolidation) in accordance with the terms and conditions
hereof, the Guaranty of such Guarantor or such successor in interest, as the case may be,
hereunder shall automatically be discharged and released without any further action by any
Beneficiary or any other Person effective as of the time of such Asset Sale.
(b) Notwithstanding anything to the contrary in this Agreement or the other
Loan Documents, if at any time after the Exit Facilities Conversion Date, the Guaranty of any
Canadian Subsidiary that is a Controlled Foreign Subsidiary causes, or is reasonably expected to
cause, material adverse tax consequences to Holdings and its Domestic Subsidiaries, taken as a
whole, then the Guaranty of such Canadian Subsidiary shall be discharged and released by
Administrative Agent without any further action by any Beneficiary or any other Person;
provided that in the event (whether as a result of an amendment of the Internal Revenue Code or
otherwise) a Guaranty by such Canadian Subsidiary thereafter would not result in material
adverse tax consequences to Holdings and its Domestic Subsidiaries, upon the request of
Administrative Agent, such Canadian Subsidiary shall again become a Guarantor hereunder by
executing a Counterpart Agreement and taking the actions required pursuant to Section 5.1 0.
SECTION 8. EVENTS OF DEFAULT; CARVE-OUT EVENT
8.1 Events of Default. If any one or more of the following conditions or events shall
occur:
(a) Failure to Make Payments When Due. Failure by Borrowers to pay (i)
when due any installment of principal of any Loan, whether at stated maturity, by acceleration,
by notice of voluntary prepayment, by mandatory prepayment or otherwise; (ii) when due any
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amount payable in reimbursement of any LC Disbursement; or (iii) any interest on any Loan or
any fee or any other amount due hereunder within three Business Days after the date due; or
(b) Default in Other Agreements. (i) Failure of any Credit Party or any of
their respective Subsidiaries to pay when due any principal of or interest on or any other amount
payable in respect of the Second Lien Term Loans or one or more items of Indebtedness (other
than (x) Indebtedness referred to in Section 8.l(a) and (y) during the pendency of the Cases,
Indebtedness incurred prior to the commencement of the Cases) with an aggregate principal
amount of $7,500,000 or more, in each case beyond the grace period, if any, provided therefor;
or (ii) breach or default by any Credit Party with respect to any other material term of (1) the
Second Lien Credit Agreement or one or more items of Indebtedness in the aggregate principal
amount referred to in clause (i) above or (2) any loan agreement, mortgage, indenture or other
agreement relating to such item(s) of Indebtedness, in each case beyond the grace period, if any,
provided therefor, if the effect of such breach or default is to cause, or to permit the holder or
holders of that Indebtedness (or a trustee on behalf of such holder or holders), to cause, that
Indebtedness to become or be declared due and payable (or redeemable) prior to its stated
maturity or the stated maturity of any underlying obligation, as the case may be; or
(c) Breach of Certain Covenants. Failure of any Credit Party to perform or
comply with any term or condition contained in Section 2.6, Sections 5.l(a), 5.1(b), 5.l(c), 5.l(d)
and 5.l{f), Section 5.2, 5.15, 5.16, 5.17, 5.18 or Section 6; or
(d) Breach ofRepresentations, etc. Any representation, warranty, certification
or other statement made or deemed made by any Credit Party in any Credit Document or in any
statement or certificate at any time given by any Credit Party or any of its Subsidiaries in writing
pursuant hereto or thereto or in connection herewith or therewith shall be false in any material
respect as of the date made or deemed made; or
(e) Other Defaults Under Credit Documents. Any Credit Party shall default in
the performance of or compliance with any term contained herein or any of the other Credit
Documents (other than any Mortgage), other than any such term referred to in any other Section
of this Section 8.1, and such default shall not have been remedied or waived within thirty days
after the earlier of (i) an Authorized Officer of such Credit Party becoming aware of such default
or (ii) receipt by any Borrower of notice from Administrative Agent or any Lender of such
default; or
(f) Involuntary Bankruptcy; Appointment of Receiver, etc. Following the
Exit Facilities Conversion Date, (i) a court of competent jurisdiction shall enter a decree or order
for relief in respect of Holdings or any of its Subsidiaries (other than any Inactive Subsidiary) in
an involuntary case or application under the Bankruptcy Code, Canadian Insolvency Law or
under any other applicable bankruptcy, insolvency or similar law now or hereafter in effect,
which decree or order is not stayed; or any other similar relief shall be granted under any
applicable federal, state, or provincial law; or (ii) an involuntary case or application shall be
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commenced against Holdings or any of its Subsidiaries (other than any Inactive Subsidiary)
under the Bankruptcy Code, Canadian Insolvency Law or under any other applicable bankruptcy,
insolvency or similar law now or hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, receiver-manager, interim receiver,
monitor, administrator, liquidator, sequestrator, trustee, custodian or other officer having similar
powers over Holdings or any of its Subsidiaries, or over all or a substantial part of its property,
shall have been entered; or there shall have occurred the involuntary appointment of a receiver,
receiver-manager, interim receiver, monitor, administrator, liquidator, sequestrator, trustee, or
other custodian of Holdings or any of its Subsidiaries (other than any Inactive Subsidiary) for all
or a substantial part of its property; or a warrant of attachment, execution or similar process shall
have been issued against any substantial part of the property of Holdings or any of its
Subsidiaries (other than any Inactive Subsidiary), and any such event described in this clause (ii)
shall continue for sixty days without having been dismissed, bonded or discharged; or
(g) Voluntary Bankruptcy; Appointment of Receiver, etc. Following the Exit
Facilities Conversion Date, (i) Holdings or any of its Subsidiaries (other than any Inactive
Subsidiary) shall have an order for relief entered with respect to it or shall commence a voluntary
case or application under the Bankruptcy Code, Canadian Insolvency Law or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect, including, without
limitation, filing a notice of intention to make a proposal pursuant to the BIA or shall consent to
the entry of an order for relief in an involuntary case or application, or to the conversion of an
involuntary case or application to a voluntary case or application, under any such law, or shall
consent to the appointment of or taking possession by a receiver, receiver-manager, interim
receiver, monitor, administrator, liquidator, sequestrator, trustee or other custodian for all or a
substantial part of its property; or Holdings or any of its Subsidiaries (other than any Inactive
Subsidiary) shall make any assignment for the benefit of creditors; or (ii) Holdings or any of its
Subsidiaries (other than any Inactive Subsidiary) shall be unable, or shall fail generally, or shall
admit in writing its inability, to pay its debts as such debts become due; or the board of directors
(or similar governing body) of Holdings or any of its Subsidiaries (other than any Inactive
Subsidiary) (or any committee thereof) shall adopt any resolution or otherwise authorize any
action to approve any ofthe actions referred to herein or in Section 8.1 (f); or
(h) Defaults Under Mortgages. Any Event of Default under and as defined in
any Mortgage which would reasonably be expected to impair or adversely affect Collateral
Agent's ability to realize upon the Real Estate subject to such Mortgage shall occur and be
continuing.
(i) Judgments and Attachments. Any money judgment, writ or warrant of
attachment or similar process involving in the aggregate at any time an amount in excess of
$7,500,000 (in either case to the extent not adequately covered by insurance as to which a
solvent and unaffiliated insurance company has acknowledged coverage) shall be entered or filed
against Holdings or any of its Subsidiaries or any of their respective assets (other than the
allowance of claims in the Cases) and shall remain undischarged, unvacated, unbonded or
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unstayed for a period of sixty days (or in any event later than five days prior to the date of any
proposed sale thereunder); or
(j) Dissolution. Any order, judgment or decree shall be entered against any
Credit Party decreeing the winding up, dissolution or split up of such Credit Party and such order
shall remain undischarged or unstayed for a period in excess of thirty days; or
(k) Employee Benefit Plans. (i) There shall occur one or more ERISA Events
which individually or in the aggregate results in or might reasonably be expected to result in
liability of Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates in excess
of$7,500,000 during the term hereof; or (ii) there exists any fact or circumstance that reasonably
could be expected to result in the imposition of a Lien or security interest under Section 412(n)
of the Internal Revenue Code or under ERISA, which individually or in the aggregate results in
or might reasonably be expected to result in liability of Holdings, any of its Subsidiaries or any
of their respective ERISA Affiliates in excess of $2,000,000 during the term hereof; or
(1) Change of Control. A Change of Control shall occur; or
(m) Guaranties, Collateral Documents and other Credit Documents. At any
time after the execution and delivery thereof, (i) the Guaranty for any reason, other than the
satisfaction in full of all Obligations, shall cease to be in full force and effect (other than in
accordance with its terms) or shall be declared to be null and void or any Guarantor shall
repudiate its obligations thereunder, (ii) this Agreement or any Collateral Document ceases to be
in full force and effect (other than by reason of a release of Collateral in accordance with the
terms hereof or thereof or the satisfaction in full of the Obligations in accordance with the terms
hereof) or shall be declared null and void, or Collateral Agent shall not have or shall cease to
have a valid and perfected Lien in any Collateral purported to be covered by the Collateral
Documents with the priority required by the relevant Collateral Document, in each case for any
reason other than the failure of Collateral Agent or any Secured Party to take any action within
its control, or (iii) any Credit Party shall contest the validity or enforceability of any Credit
Document in writing or deny in writing that it has any further liability, including with respect to
future advances by Lenders, under any Credit Document to which it is a party or shall contest the
validity or perfection of any Lien in any Collateral purported to be covered by the Collateral
Documents; or
(n) Prior to the Exit Facilities Conversion Date, any Case shall be dismissed
or converted to a case under Chapter 7 of the Bankruptcy Code, or any Credit Party shall file any
pleading requesting dismissal or there shall be filed a motion or other pleading seeking the
termination of any of the proceedings pursuant to section 18.6 of the CCAA in respect of any of
the Canadian Credit Parties; or a motion, any plan of reorganization or disclosure statement shall
be filed by any Credit Party or any other action shall be taken by any Credit Party in any of the
Cases, for the approval of (i) additional financing under Section 364( c) or (d) of the Bankruptcy
Code not otherwise permitted pursuant to this Agreement or (ii) the granting of any Lien (other
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than Permitted Liens or Liens expressly permitted in the Interim DIP Order, the Final DIP Order,
the Canadian Interim Order or the Canadian Final Order) upon or affecting any Collateral which
are pari passu or senior to the Liens on the Collateral in favor of the Collateral Agent, for the
benefit of Agent and Lenders, or (iii) any other action or actions adverse to Administrative
Agent's, the Syndication Agent's, the Collateral Agent's or Lenders' interests under any Credit
Document or their rights and remedies hereunder or their interest in the Collateral; or
( o) Prior to the Exit Facilities Conversion Date, the Bankruptcy Court shall
issue or enter an order in any of the Cases granting (i) any other claim having priority senior to
or pari passu with the claims of the Lenders under the Credit Documents or any other claim
having priority over any or all administrative expenses of the kind specified in clause (b) of
Section 503 or clause (b) of Section 507 of the Bankruptcy Code (other than the Carve-Out) or
(ii) any Lien on the Collateral having a priority senior to or pari passu with the Liens and security
interests granted herein, except as expressly provided herein, in the Interim DIP Order, the Final
DIP Order, the Canadian Interim Order or the Canadian Final Order; or
(p) Prior to the Exit Facilities Conversion Date, any Credit Party shall pay any
prepetition Claim without the consent of Administrative Agent unless otherwise permitted
pursuant to Section 6.17 of this Agreement; or
(q) Prior to the Exit Facilities Conversion Date, the Bankruptcy Court or
Canadian Court shall issue or enter an order granting relief from the automatic stay applicable
under Section 362 of the Bankruptcy Code or the Canadian Stay Order to any holder of any
security interest to permit foreclosure on any assets having a book value in excess of$1,000,000
in the aggregate; or
(r) Prior to the Exit Facilities Conversion Date, (i) any Credit Party shall fail
to comply with the terms of the Interim DIP Order, the Final DIP Order, the Canadian Interim
Order or the Canadian Final Order in any material respect, (ii) the Interim DIP Order, the Final
DIP Order, the Canadian Interim Order or the Canadian Final Order shall be amended,
supplemented, stayed, reversed, vacated or otherwise modified in any respect adverse to the
Lenders without the written consent of the Requisite Lenders, or (iii) any Credit Party shall file a
motion for reconsideration with respect to the Interim DIP Order, the Final DIP Order, the
Canadian Interim Order or the Canadian Final Order; or
(s) Prior to the Exit Facilities Conversion Date, the Bankruptcy Court shall
issue or enter an order appointing a trustee under Chapter 7 or Chapter 11 of the Bankruptcy
Code, or a responsible officer or an examiner with enlarged powers relating to the operation of
the business (powers beyond those set forth in subclauses (3) and (4) of clause (a) of Section
1106 of the Bankruptcy Code) under clause (b) of Section 11 06 of the Bankruptcy Code in the
Cases ; or, in Canada, the appointment of a receiver, receiver-manager, interim receiver or
trustee in bankruptcy in respect of any Credit Party; or
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(t) Prior to the Exit Facilities Conversion Date, a plan or reorganization (other
than the Plan) is filed and both (i) the treatment of the claims of the Agents and Lenders in such
plan of reorganization is not approved by Administrative Agent and the Syndication Agent and
(ii) except as contemplated by Section 3.5, such plan of reorganization does not provide for the
payment in full in cash of the Obligations on or prior to the date of consummation thereof; or
(u) Prior to the Exit Facilities Conversion Date, the Credit Parties or any of
their Subsidiaries shall seek to, or shall support (in any such case by way of any motion or other
pleading filed with the Bankruptcy Court or the Canadian Court or any other writing to another
party-in-interest executed by or on behalf of the Credit Parties or any of their Subsidiaries) any
other Person's motion to, disallow in whole or in part the Lenders' claim in respect of the
Obligations or to challenge the validity and enforceability of the Liens in favor of the Collateral
Agent; or
(v) The Canadian Supplemental Interim Order is not issued by the Canadian
Court on or before May 18, 2007; or
(w) The Final Supplemental DIP Order is not entered by the Bankruptcy Court
on or before May 30, 2007; or
(x) The Canadian Supplemental Final Order is not issued by the Canadian
Court on or before June 5, 2007.
THEN, (1) upon the occurrence of any Event of Default described in Section 8.l(f) or 8.1(g),
automatically, and (2) upon the occurrence of any other Event of Default, at the request of (or
with the consent of) Requisite Lenders, upon notice to any Borrower by Administrative Agent, in
each case notwithstanding the provisions of Section 362 of the Bankruptcy Code or the Canadian
Stay Order and without any application, motion or notice to, hearing before, or order from, the
Bankruptcy Court or the Canadian Court, (A) the Revolving Commitments, if any, of each
Lender having such Revolving Commitments shall immediately terminate; (B) the Term Loan
Commitments, if any, of each Lender having such Term Loan Commitments shall immediately
terminate; (C) the LC Commitments, if any, of each Lender having such LC Commitments and
the obligation of Administrative Agent to cause Issuing Bank to issue Letters of Credit shall
immediately terminate; (D) each of the following shall immediately become due and payable, in
each case without presentment, demand, protest or other requirements of any kind, all of which
are hereby expressly waived by each Credit Party: (I) the unpaid principal amount of and accrued
interest on the Loans, (II) the unreimbursed amounts of LC Disbursements, (III) an amount equal
to the maximum amount that may at any time be drawn under all Letters of Credit then
outstanding (regardless of whether any beneficiary under any such Letter of Credit shall have
presented, or shall be entitled at such time to present, the drafts or other documents or certificates
required to draw under such Letters of Credit), and (IV) all other Obligations (other than
contingent indemnification obligations for which no claim has been made); provided, the
foregoing shall not affect in any way the obligations of Lenders under Section 2.3(b)(v) or
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Section 2.4( c); (E) subject, prior to the Exit Facilities Conversion Date, to the satisfaction of the
notice and other requirements set forth in the Interim DIP Order, Final DIP Order, the Canadian
Interim Order or the Canadian Final Order, Administrative Agent may cause Collateral Agent to
enforce any and all Liens and security interests created pursuant to Collateral Documents; and (F)
Administrative Agent shall direct Borrowers to pay (and Borrowers hereby agree upon receipt of
such notice, or upon the occurrence of any Event of Default specified in Sections 8.1(f) and (g)
to pay) to Administrative Agent such additional amounts of cash as reasonably requested by
Issuing Bank or Administrative Agent, to be held as security for Borrowers' reimbursement
Obligations in respect ofLetters of Credit then outstanding.
8.2 Carve-Out Events.
(a) Upon the first date on which the Agents and/or the Lenders are entitled to
exercise remedies as provided in Section 8.1 hereof and notice thereof by Administrative Agent
to the Credit Parties (the "Carve-Out Event Notice"), the right of the Credit Parties to pay
professional fees outside the Carve-Out shall terminate (a "Carve-Out Event"), and, upon such
occurrence, the Credit Parties, after receipt of the Carve-Out Event Notice from Administrative
Agent, shall provide immediate notice by facsimile to all professionals informing them that a
Carve-Out Event has occurred and further advising them that the Credit Parties' ability to pay
professionals is subject to the Carve-Out.
(b) Notwithstanding anything in this Agreement to the contrary, on and after
the Exit Facilities Conversion Date the right of the Credit Parties to pay professional fees shall be
governed solely in accordance with the Plan and the Confirmation Order.
SECTION 9. AGENTS
9.1 Appointment of Agents. (a) GSCP is hereby appointed Syndication Agent
hereunder, and each Lender hereby authorizes GSCP to act as Syndication Agent in accordance
with the terms hereof and the other Credit Documents. CIT is hereby appointed Administrative
Agent and Collateral Agent hereunder and under the other Credit Documents and each Lender
hereby authorizes CIT to act as Administrative Agent and Collateral Agent in accordance with
the terms hereof and the other Credit Documents. Each Agent hereby agrees to act in its capacity
as such upon the express conditions contained herein and the other Credit Documents, as
applicable. Except as expressly provided in Section 9.7, the provisions of this Section 9 are
solely for the benefit of Agents and Lenders and no Credit Party shall have any rights as a third
party beneficiary of any of the provisions thereof. In performing its functions and duties
hereunder, each Agent shall act solely as an agent of Lenders and does not assume and shall not
be deemed to have assumed any obligation towards or relationship of agency or trust with or for
Holdings or any of its Subsidiaries. Syndication Agent, without consent of or notice to any party
hereto, may assign any and all of its rights or obligations hereunder to any of its Affiliates. As of
the Closing Date, GSCP, in its capacity as Syndication Agent, shall not have any obligations but
shall be entitled to all benefits of this Section 9.
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(b) For the purpose of holding any security granted by any Credit Party
pursuant to the laws of the Province of Quebec to secure payment of any debenture issued by any
Credit Party, Collateral Agent is hereby appointed to act as the person holding the power of
attorney (fonde de pouvoir) pursuant to article 2692 of the Civil Code of Quebec to act on behalf
of each of the debentureholders, initially CIT in its capacity as Collateral Agent for the Secured
Parties. Each Person who is or becomes a Lender and each assignee holder of any debenture
issued by any Credit Party shall be deemed to ratify the power of attorney (fonde de pouvoir)
granted to Collateral Agent hereunder by its execution of an Assignment Agreement or Joinder
Agreement. Collateral Agent agrees to act in such capacity. Each party hereto agrees that,
notwithstanding Section 32 of An Act respecting the special powers of legal persons (Quebec),
Collateral Agent, as fonde de pouvoir, shall also be entitled to act as a debentureholder and to
acquire and/or be the pledgee of any debentures or other titles of indebtedness to be issued under
any deed of hypothec executed by or on behalf of any Credit Party.
9.2 Powers and Duties. Each Lender irrevocably authorizes each Agent to take such
action on such Lender's behalf and to exercise such powers, rights and remedies hereunder and
under the other Credit Documents as are specifically delegated or granted to such Agent by the
terms hereof and thereof, together with such powers, rights and remedies as are reasonably
incidental thereto. Each Agent shall have only those duties and responsibilities that are expressly
specified herein and the other Credit Documents. Each Agent may exercise such powers, rights
and remedies and perform such duties by or through its agents or employees. No Agent shall
have, by reason hereof or any of the other Credit Documents, a fiduciary relationship in respect
of any Lender; and nothing herein or any of the other Credit Documents, expressed or implied, is
intended to or shall be so construed as to impose upon any Agent any obligations in respect
hereof or any of the other Credit Documents except as expressly set forth herein or therein.
Administrative Agent hereby agrees that it shall (i) furnish to GSCP, in its capacity as Arranger,
upon GSCP's request, a copy of the Register, (ii) cooperate with GSCP in granting access to any
Lenders (or potential lenders) who GSCP identifies to the Platform and (iii) maintain GSCP's
access to the Platform.
9.3 General Immunity.
(a) No Responsibility for Certain Matters. No Agent shall be responsible to
any Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability
or sufficiency hereof or any other Credit Document or for any representations, warranties,
recitals or statements made herein or therein or made in any written or oral statements or in any
financial or other statements, instruments, reports or certificates or any other documents
furnished or made by any Agent to Lenders or by or on behalf of any Credit Party or any Lender
in connection with the Credit Documents and the transactions contemplated thereby or for the
financial condition or business affairs of any Credit Party or any other Person liable for the
payment of any Obligations, nor shall any Agent be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants or agreements
contained in any of the Credit Documents or as to the use of the proceeds of the Loans or as to
the existence or possible existence of any Event of Default or Default or to make any disclosures
with respect to the foregoing. Anything contained herein to the contrary notwithstanding,
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Administrative Agent shall not have any liability arising from confirmations of the amount of
outstanding Loans or the Letter of Credit Usage or the component amounts thereof.
(b) Exculpatory Provisions. No Agent nor any of its officers, partners,
directors, employees or agents shall be liable to Lenders for any action taken or omitted by any
Agent under or in connection with any of the Credit Documents except to the extent caused by
such Agent's gross negligence or willful misconduct. Each Agent shall be entitled to refrain
from any act or the taking of any action (including the failure to take an action) in connection
herewith or any of the other Credit Documents or from the exercise of any power, discretion or
authority vested in it hereunder or thereunder unless and until such Agent shall have received
instructions in respect thereof from Requisite Lenders (or such other Lenders as may be required
to give such instructions under Section 1 0.5) and, upon receipt of such instructions from
Requisite Lenders (or such other Lenders, as the case may be), such Agent shall be entitled to act
or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in
accordance with such instructions. Without prejudice to the generality of the foregoing, (i) each
Agent shall be entitled to rely, and shall be fully protected in relying, upon any communication,
instrument or document believed by it to be genuine and correct and to have been signed or sent
by the proper Person or Persons and shall be entitled to rely and shall be protected in relying on
opinions and judgments of attorneys (who may be attorneys for Holdings and its Subsidiaries),
accountants, experts and other professional advisors selected by it; and (ii) no Lender shall have
any right of action whatsoever against any Agent as a result of such Agent acting or (where so
instructed) refraining from acting hereunder or any of the other Credit Documents in accordance
with the instructions of Requisite Lenders (or such other Lenders as may be required to give such
instructions under Section 1 0.5).
(c) Delegation of Duties. Administrative Agent may perform any and all of its
duties and exercise its rights and powers under this Agreement or under any other Credit
Document by or through any one or more sub-agents appointed by Administrative Agent.
Administrative Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Affiliates. The exculpatory, indemnification
and other provisions of this Section 9.3 and of Section 9.6 shall apply to any the Affiliates of
Administrative Agent and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities as Administrative
Agent. All of the rights, benefits, and privileges (including the exculpatory and indew..nification
provisions) of this Section 9.3 and of Section 9.6 shall apply to any such sub-agent and to the
Affiliates of any such sub-agent, and shall apply to their respective activities as sub-agent as if
such sub-agent and Affiliates were named herein. Notwithstanding anything herein to the
contrary, with respect to each sub-agent appointed by Administrative Agent, (i) such sub-agent
shall be a third party beneficiary under this Agreement with respect to all such rights, benefits
and privileges (including exculpatory rights and rights to indemnification) and shall have all of
the rights and benefits of a third party beneficiary, including an independent right of action to
enforce such rights, benefits and privileges (including exculpatory rights and rights to
indemnification) directly, without the consent or joinder of any other Person, against any or all of
the Credit Parties and the Lenders, (ii) such rights, benefits and privileges (including exculpatory
rights and rights to indemnification) shall not be modified or amended without the consent of
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such sub-agent, and (iii) such sub-agent shall only have obligations to Administrative Agent and
not to any Credit Party, Lender or any other Person and no Credit Party, Lender or any other
Person shall have any rights, directly or indirectly, as a third party beneficiary or othen:vise,
against such sub-agent.
9.4 Agents Entitled to Act as Lender. The agency hereby created shall in no way
impair or affect any of the rights and powers of, or impose any duties or obligations upon, any
Agent in its individual capacity as a Lender hereunder. With respect to its participation in the
Loans and the Letters of Credit, each Agent shall have the same rights and powers hereunder as
any other Lender and may exercise the same as if it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" shall, unless the context clearly othen:vise
indicates, include each Agent in its individual capacity. Any Agent and its Affiliates may accept
deposits from, lend money to, own securities of, and generally engage in any kind of banking,
trust, financial advisory or other business with Holdings or any of its Affiliates as if it were not
performing the duties specified herein, and may accept fees and other consideration from
Borrowers for services in connection herewith and otherwise without having to account for the
same to Lenders.
9.5 Lenders' Representations, Warranties and Acknowledgment.
(a) Each Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of Holdings and its Subsidiaries in connection
with Credit Extensions hereunder and that it has made and shall continue to make its own
appraisal of the creditworthiness ofHoldings and its Subsidiaries. No Agent shall have any duty
or responsibility, either initially or on a continuing basis, to make any such investigation or any
such appraisal on behalf of Lenders or to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before the making of the
Loans or at any time or times thereafter, and no Agent shall have any responsibility with respect
to the accuracy of or the completeness of any information provided to Lenders.
(b) Each Lender, by delivering its signature page to this Agreement or an
Assignment Agreement and funding its Term Loan, LC Deposit and/or Revolving Loans on the
Closing Date, shall be deemed to have acknowledged receipt of, and consented to and approved,
each Credit Document and each other document required to be approved by any Agent, Requisite
Lenders or Lenders, as applicable on the Closing Date.
9.6 Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally
agrees to indemnify each Agent, to the extent that such Agent shall not have been reimbursed by
any Credit Party, for and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including counsel fees and disbursements) or
disbursements of any kind or nature whatsoever which may be imposed on, incurred by or
asserted against such Agent in exercising its powers, rights and remedies or performing its duties
hereunder or under the other Credit Documents or otherwise in its capacity as such Agent in any
way relating to or arising out of this Agreement or the other Credit Documents; provided, no
Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties,
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actions, judgments, suits, costs, expenses or disbursements resulting from such Agent's gross
negligence or willful misconduct. If any indemnity furnished to any Agent for any purpose shall,
in the opinion of such Agent, be insufficient or become impaired, such Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified against until such
additional inrlem_nity is furnished; provided, in no event shall this sentence require any Lender to
indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment,
suit, cost, expense or disbursement in excess of such Lender's Pro Rata Share thereof; and
provided further, this sentence shall not be deemed to require any Lender to indemnify any
Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost,
expense or disbursement described in the proviso in the immediately preceding sentence.
9.7 Successor Administrative Agent, Collateral Agent and Swing Line Lender.
Administrative Agent may resign at any time by giving thirty days' prior written notice thereof to
Lenders and Borrowers. Upon any such notice of resignation, Requisite Lenders shall have the
right, with the consent of Borrowers (such consent (x) not to be unreasonably withheld or
delayed and (y) not required if an Event of Default has occurred and is continuing), to appoint a
successor Administrative Agent. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, that successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent and the retiring Administrative Agent shall promptly (i) transfer to
such successor Administrative Agent all sums, Securities and other items of Collateral held
under the Collateral Documents, together with all records and other documents necessary or
appropriate in connection with the performance of the duties of the successor Administrative
Agent under the Credit Documents, and (ii) execute and deliver to such successor Administrative
Agent such amendments to financing statements, and take such other actions, as may be
necessary or appropriate in connection with the assignment to such successor Administrative
Agent of the security interests created under the Collateral Documents, whereupon such retiring
Administrative Agent shall be discharged from its duties and obligations hereunder. If the
Requisite Lenders have not appointed a successor Administrative Agent, Administrative Agent
shall have the right to appoint a financial institution to act as Administrative Agent hereunder
and in any case, Administrative Agent's resignation shall become effective on the thirtieth day
after such notice of resignation. If neither the Requisite Lenders nor Administrative Agent have
appointed a successor Administrative Agent, the Requisite Lenders shall be deemed to succeeded
to and become vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent; provided that, until a successor Administrative Agent is so appointed by
the Requisite Lenders or Administrative Agent, Administrative Agent, by notice to Borrowers
and the Requisite Lenders, may retain its role as Collateral Agent under any Collateral Document.
Except as provided in the immediately preceding sentence, any resignation of CIT or its
successor as Administrative Agent pursuant to this Section shall also constitute the resignation of
CIT or its successor as Collateral Agent. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section 9 and Sections 2.4(g) and 10.3
shall inure to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent hereunder. Any successor Administrative Agent appointed pursuant to
this Section shall, upon its acceptance of such appointment, become the successor Collateral
Agent for all purposes hereunder. If CIT or its successor as Administrative Agent pursuant to
this Section has resigned as Administrative Agent but retained its role as Collateral Agent and no
successor Collateral Agent has become the Collateral Agent pursuant to the immediately
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preceding sentence, CIT or its successor may resign as Collateral Agent upon notice to
Borrowers and the Requisite Lenders at any time. Any resignation of CIT or its successor as
Administrative Agent pursuant to this Section shall also constitute the resignation of CIT or its
successor as Swing Line Lender, and any successor Administrative Agent appointed pursuant to
this Section shall, upon its acceptance of such appointment, become the successor Swing Line
Lender for all purposes hereunder. In such event (a) Borrowers shall prepay any outstanding
Swing Line Loans made by the retiring Administrative Agent in its capacity as Swing Line
Lender, (b) upon such prepayment, the retiring Administrative Agent and Swing Line Lender
shall surrender any Swing Line Note held by it to Borrowers for cancellation, and (c) Borrowers
shall issue, if so requested by successor Administrative Agent and Swing Line Loan Lender, a
new Swing Line Note to the successor Administrative Agent and Swing Line Lender, in the
principal amount of the Swing Line Sublimit then in effect and with other appropriate insertions.
Notwithstanding anything herein to the contrary, in the event of any resignation by CIT or its
successor as Administrative Agent (each, a "Resigning Agent"), such resignation shall become
effective as set forth above; provided however, that such resignation shall not be effective solely
with respect to the Resigning Agent's rights and obligations as Administrative Agent under
Section 2.4 and any other provision of this Agreement or any other Credit Document directly
relating to the L/C Deposits and Letters of Credit (including the funding into, or withdrawal of
any amounts from, any LIC Deposit Account and including, for the avoidance of doubt, such
Resigning Agent's rights as Administrative Agent under Sections 2.1l(d), 9.3, 9.6, 10.2, 10.3 and
10.5(c)(iv)) until the earlier to occur of: (i) the date the successor Administrative Agent shall
have entered into a guarantee arrangement with the Issuing Bank with respect to any outstanding
Letters of Credit which results in the concurrent release of such Resigning Agent from any
liability under any existing guarantee with respect to such Letters of Credit or (ii) the date all
outstanding Letters of Credit have been replaced by new Letters of Credit issued hereunder
which are not guaranteed by such Resigning Agent.
9.8 Collateral Documents and Guaranty.
(a) Agents under Collateral Documents and Guaranty. Each Secured Party
hereby further authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of
and for the benefit of Secured Parties, to be the agent for and representative of the Secured
Parties with respect to the Guaranty, the Collateral and the Collateral Documents; provided that
neither Administrative Agent nor Collateral Agent shall owe any fiduciary duty, duty of loyalty,
duty of care, duty of disclosure or any other obligation whatsoever to any holder of Obligations
with respect to any Hedge Agreement. Subject to Section 1 0.5, without further written consent
or authorization from any Secured Party, Administrative Agent or Collateral Agent, as applicable
may execute any documents or instruments necessary to (i) in connection with a sale or
disposition of assets permitted by this Agreement, release any Lien encumbering any item of
Collateral that is the subject of such sale or other disposition of assets or to which Requisite
Lenders (or such other Lenders as may be required to give such consent under Section 1 0.5) have
otherwise consented or (ii) release any Guarantor from the Guaranty pursuant to Section 7.12 or
with respect to which Requisite Lenders (or such other Lenders as may be required to give such
consent under Section I 0.5) have otherwise consented.
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(b) Right to Realize on Collateral and Enforce Guaranty. Anything contained
in any of the Credit Documents (including the Intcrcreditor Agreement) to the contrary
notwithstanding, Borrowers, Administrative Agent, Collateral Agent and each Secured Party
hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the
Collateral or to enforce the Guaranty, it being understood and agreed that all powers, rights and
remedies hereunder may be exercised solely by Administrative Agent, on behalf of the Secured
Parties in accordance with the terms hereof and all powers, rights and remedies under the
Collateral Documents may be exercised solely by Collateral Agent, and (ii) in the event of a
foreclosure by Collateral Agent on any of the Collateral pursuant to a public or private sale or
other disposition, Collateral Agent or any Lender may be the purchaser or licensor of any or all
of such Collateral at any such sale or other disposition and Collateral Agent, as agent for and
representative of Secured Parties (but not any Lender or Lenders in its or their respective
individual capacities unless Requisite Lenders shall otherwise agree in writing) shall be entitled,
for the purpose of bidding and making settlement or payment of the purchase price for all or any
portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a
credit on account of the purchase price for any collateral payable by Collateral Agent at such sale
or other disposition.
(c) Rights under Hedge Agreements. No Hedge Agreement will create (or be
deemed to create) in favor of any Lender Counterparty that is a party thereto any rights in
connection with the management or release of any Collateral or of the obligations of any
Guarantor under the Credit Documents except as expressly provided in Section 10.5(c)(v) of this
Agreement and Section 7.2 ofthe Pledge and Security Agreement.
9.9 Intercreditor Agreement. Each Lender hereby consents to and approves each and
all of the provisions of the Intercreditor Agreement and irrevocably authorizes and directs the
Collateral Agent to execute and deliver the Intercreditor Agreement and to exercise and enforce
its rights and remedies and perform its obligations thereunder.
SECTION 10. MISCELLANEOUS
10.1 Notices.
(a) Notices Generally. Any notice or other communication herein required or
permitted to be given to a Credit Party, Syndication Agent, Collateral Agent, Administrative
Agent, Swing Line Lender or Issuing Bank, shall be sent to such Person's address as set forth on
Appendix B or in the other relevant Credit Document, and in the case of any Lender, the address
as indicated on Appendix B or otherwise indicated to Administrative Agent in writing. Except as
otherwise set forth in paragraph (b) below, each notice hereunder shall be in writing and may be
personally served, telexed or sent by telefacsimile or United States mail (certified, return receipt)
or courier service and shall be deemed to have been given when delivered in person or by courier
service and signed for against receipt thereof, upon receipt of telefacsimile or telex, or three
Business Days after depositing it in the United States mail with postage prepaid and properly
addressed; provided, no notice to any Agent shall be effective until received by such Agent;
provided further, any such notice or other communication shall at the request of Administrative
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Agent be provided to any sub-agent appointed pursuant to Section 9.3(c) hereto as designated by
Administrative Agent from time to time.
(b) Electronic Communications.
(i) Notices and other communications to the Lenders and Issuing
Bank hereunder may be delivered or furnished by electronic communication (including e-
mail and Internet or intranet websites, including the Platform) pursuant to procedures
approved by Administrative Agent, provided that the foregoing shall not apply to notices
to any Lender or Issuing Bank pursuant to Section 2 if such Lender or Issuing Bank, as
applicable, has notified Administrative Agent that it is incapable of receiving notices
under such Section by electronic communication. Administrative Agent or any Borrower
may, in its discretion, agree to accept notices and other communications to it hereunder
by electronic communications pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or communications.
Unless Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender's receipt of an
acknowledgement from the intended recipient (such as by the "return receipt requested"
function, as available, return e-mail or other written acknowledgement), provided that if
such notice or other communication is not sent during the normal business hours of the
recipient, such notice or communication shall be deemed to have been sent at the opening
of business on the next Business Day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the deemed
receipt by the intended recipient at its e-mail address as described in the foregoing
clause (i) of notification that such notice or communication is available and identifying
the website address therefor.
(ii) Each of the Credit Parties understands that the distribution of
material through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution and agrees and assumes
the risks associated with such electronic distribution, except to the extent caused by the
willful misconduct or gross negligence of Administrative Agent.
(iii) The Platform and any Approved Electronic Communications are
provided "as is" and "as available". None of the Agents or any of their respective officers,
directors, employees, agents, advisors or representatives (the "Agent Affiliates") warrant
the accuracy, adequacy, or completeness of the Approved Electronic Communications or
the Platform and each expressly disclaims liability for errors or omissions in the Platform
and the Approved Electronic Communications. No warranty of any kind, express,
implied or statutory, including any warranty of merchantability, fitness for a particular
purpose, non-infringement of third party rights or freedom from viruses or other code
defects is made by the Agent Affiliates in connection with the Platform or the Approved
Electronic Communications.
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(iv) Each of the Credit Parties, the Lenders, Issuing Bank and the
Agents agree that Administrative Agent may, but shall not be obligated to, store any
Approved Electronic Communications on the Platform in accordance with Administrative
Agent's customary document retention procedures and policies.
10.2 Expenses. Whether or not the transactions contemplated hereby shall be consum-
mated, each Borrower agrees to pay promptly (a) all the actual and reasonable costs and
expenses of Administrative Agent for the preparation, negotiation, execution and administration
of the Credit Documents and the transactions contemplated thereby (including any costs and
expenses incurred in connection with the establishment, maintenance and administration of the
LC Deposit Account) and any consents, amendments, waivers or other modifications thereto; (b)
all the costs of furnishing all opinions by counsel for Borrowers and the other Credit Parties; (c)
the reasonable fees, expenses and disbursements of counsel to Agents (in each case including
reasonable allocated costs of internal counsel) in connection with the negotiation, preparation,
execution and administration of the Credit Documents and any consents, amendments, waivers
or other modifications thereto and any other documents or matters requested by Borrowers; (d)
all the actual costs and reasonable expenses of creating, perfecting and recording Liens in favor
of Collateral Agent, for the benefit of the Secured Parties, including filing and recording fees,
expenses and taxes, stamp or documentary taxes, search fees, title insurance premiums and
reasonable fees, expenses and disbursements of counsel to each Agent and of counsel providing
any opinions that any Agent or Requisite Lenders may reasonably request in respect of the
Collateral or the Liens created pursuant to the Collateral Documents; (e) all the actual costs and
reasonable fees, expenses and disbursements of any auditors, accountants, consultants or
appraisers; (f) all the actual costs and reasonable expenses (including the reasonable fees,
expenses and disbursements of any appraisers, consultants, advisors and agents employed or
retained by Collateral Agent and its counsel) in connection with the custody or preservation of
any of the Collateral; (g) all other actual and reasonable costs and expenses incurred by each
Agent in connection with the syndication of the Loans and Commitments and the negotiation,
preparation and execution of the Credit Documents and any consents, amendments, waivers or
other modifications thereto and the transactions contemplated thereby; and (h) after the
occurrence of a Default or an Event of Default, all reasonable costs and expenses, including
reasonable attorneys' fees (including reasonable allocated costs of internal counsel) and
reasonable costs of settlement, incurred by any Agent and Lenders in enforcing any Obligations
of or in collecting any payments due from any Credit Party hereunder or under the other Credit
Documents by reason of such Default or Event of Default (including in connection with the sale,
lease or license of, collection from, or other realization upon any of the Collateral or the
enforcement of the Guaranty) or in connection with any refinancing or restructuring of the credit
arrangements provided hereunder in the nature of a "work-out" or pursuant to any insolvency or
bankruptcy cases or proceedings.
10.3 Indemnity.
(a) In addition to the payment of expenses pursuant to Section 1 0.2, whether
or not the transactions contemplated hereby shall be consummated, each Credit Party agrees to
defend (subject to Indemnitees' selection of counsel (which shall be reasonably acceptable to
Borrowers)), indemnify, pay and hold harmless, each Agent and Lender and the officers, partners,
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members, directors, trustees, advisors, employees, agents, sub-agents and Affiliates of each
Agent and each Lender (each, an "Indemnitee"), from and against any and all Indemnified
Liabilities; provided, no Credit Party shall have any obligation to any Indemnitee hereunder with
respect to any Indemnified Liabilities to the extent such Indemnified Liabilities arise from the
gross negligence or willful misconduct of that Indemnitee. To the extent that the undertakings to
defend, indemnify, pay and hold harmless set forth in this Section 10.3 may be unenforceable in
whole or in part because they are violative of any law or public policy, the applicable Credit
Party shall contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by
Indemnitees or any of them.
(b) To the extent permitted by applicable law, no Credit Party shall assert, and
each Credit Party hereby waives, any claim against each Lender, each Agent and their respective
Affiliates, directors, employees, attorneys, agents or sub-agents, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
(whether or not the claim therefor is based on contract, tort or duty imposed by any applicable
legal requirement) arising out of, in connection with, arising out of, as a result of, or in any way
related to, this Agreement or any Credit Document or any agreement or instrument contemplated
hereby or thereby or referred to herein or therein, the transactions contemplated hereby or
thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in
connection therewith, and each Credit Party hereby waives, releases and agrees not to sue upon
any such claim or any such damages, whether or not accrued and whether or not known or
suspected to exist in its favor.
10.4 Set-Off. In addition to any rights now or hereafter granted under applicable law
and not by way of limitation of any such rights, upon the occurrence of any Event of Default
each Lender is hereby authorized, in each case notwithstanding the provisions of Section 362 of
the Bankruptcy Code, and without any application, motion or notice to, hearing before, or order
from, the Bankruptcy Court, by each Credit Party at any time or from time to time subject to the
consent of Administrative Agent (such consent not to be unreasonably withheld or delayed),
without notice to any Credit Party or to any other Person (other than Administrative Agent), any
such notice being hereby expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts) and any other Indebtedness at any time
held or owing by such Lender to or for the credit or the account of any Credit Party against and
on account of the obligations and liabilities of any Credit Party to such Lender hereunder, the
Letters of Credit and participations therein and under the other Credit Documents, including all
claims of any nature or description arising out of or connected hereto, the Letters of Credit and
participations therein or with any other Credit Document, irrespective of whether or not (a) such
Lender shall have made any demand hereunder or (b) the principal of or the interest on the Loans
or any amounts in respect of the Letters of Credit or any other amounts due hereunder shall have
become due and payable pursuant to Section 2 and although such obligations and liabilities, or
any of them, may be contingent or unmatured.
10.5 Amendments and Waivers.
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(a) Requisite Lenders' Consent. Subject to the additional requirements of
Sections 10.5(b) and 10.5(c), no amendment, modification, termination or waiver of any
provision of the Credit Documents, or consent to any departure by any Credit Party therefrom,
shall in any event be effective without the written concurrence of the Requisite Lenders;
orovided that Administrative Agent may, \Vith the consent of each Borrower only, amend,
modify or supplement this Agreement to cure any ambiguity, omission, defect or inconsistency,
so long as such amendment, modification or supplement does not adversely affect the rights of
any Lender or Issuing Bank.
(b) Affected Lenders' Consent. Without the written consent of each Lender
(other than a Defaulting Lender) that would be affected thereby, no amendment, modification,
termination, or consent shall be effective if the effect thereof would:
(i) extend the scheduled final maturity of any Loan or Note;
(ii) waive, reduce or postpone any scheduled repayment (but not
prepayment);
(iii) extend the stated expiration date of any Letter of Credit beyond
the LC Commitment Termination Date;
(iv) extend the date on which any LC Deposit is required to be made
by, or returned to, any LC Lender.
(v) reduce the rate of interest on any Loan (other than any waiver of
any increase in the interest rate applicable to any Loan pursuant to Section 2.1 0) or any
fee or any premium payable hereunder;
(vi) extend the time for payment of any such interest or fees;
(vii) reduce the principal amount of any Loan or any reimbursement
obligation in respect of any Letter of Credit;
(viii) amend, modify, terminate or waive any provision of Section
2.13(b )(iii), this Section 1 0.5(b ), Section 1 0.5( c) or any other provision of this Agreement
that expressly provides that the consent of all Lenders is required;
(ix) amend the definition of "Requisite Lenders" or "Pro Rata
Share"; provided, with the consent of Requisite Lenders, additional extensions of credit
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pursuant hereto may be included in the determination of "Requisite Lenders" or "Pro
Rata Share" on substantially the same basis as the Term Loan Commitments, the Term
Loans, the LC Commitments, the LC Deposits, the Revolving Commitments and the
Revolving Loans are included on the Closing Date;
(x) release all or substantially all of the Collateral or all or
substantially all of the Guarantors from the Guaranty except as expressly provided in the
Credit Documents; or
(xi) consent to the assignment or transfer by any Credit Party of any
of its rights and obligations under any Credit Document.
(c) Other Consents. No amendment, modification, termination or waiver of
any provision of the Credit Documents, or consent to any departure by any Credit Party
therefrom, shall:
(i) increase any Commitment of any Lender over the amount
thereof then in effect without the consent of such Lender; provided, no amendment,
modification or waiver of any condition precedent, covenant, Default or Event of Default
shall constitute an increase in any Commitment of any Lender;
(ii) amend, modify, terminate or waive any provision hereof relating
to the Swing Line Sub limit or the Swing Line Loans without the consent of Swing Line
Lender;
(iii) alter the required application of any repayments or prepayments
as between Classes pursuant to Section 2.15 without the consent of Lenders holding more
than 50% of the aggregate Term Loan Exposure of all Lenders, LC Exposure of all
Lenders or Revolving Exposure of all Lenders, as applicable, of each Class which is
being allocated a lesser repayment or prepayment as a result thereof; provided, Requisite
Lenders may waive, in whole or in part, any prepayment so long as the application, as
between Classes, of any portion of such prepayment which is still required to be made is
not altered;
(iv) amend, modify, terminate or waive any provision of Section 2.4
or this Section 10.5(c)(iv) without the written consent of Administrative Agent (including
any Person acting as Administrative Agent under Section 2.4 pursuant to the last sentence
of Section 9.7);
(v) amend, modify, terminate or waive any provision of Section
2.16(h) without the written consent of one or more Lenders having or holding Revolving
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Exposure and representing more than 50% of the sum of the aggregate Revolving
Exposure of all Lenders;
(vi) amend, modify or waive this Agreement or the Pledge and
Security Agreement so as to alter the ratable treatment of Obligations arising under the
Credit Documents and Obligations arising under Hedge Agreements or the definition of
"Lender Counterparty," "Hedge Agreement," "Obligations," or "Secured
Obligations" in each case in a manner adverse to any Lender Counterparty with
Obligations then outstanding without the written consent of any such Lender
Counterparty;
(vii) amend, modify, terminate or waive any provision of Section 9 as
the same applies to any Agent, or any other provision hereof as the same applies to the
rights or obligations of any Agent, in each case without the consent of such Agent;
(viii) amend, modify, terminate or waive any provision of Section
2.24, 4.25, 6.15, or 6.21, without the written consent of each Lender;
(ix) amend, modify, terminate or waive any provision of Section 3.4
that provides for the satisfaction of Administrative Agent with any conditions set forth
therein, without the written consent of Administrative Agent; or
(x) amend, modify, terminate or waive any provision of the
Intercreditor Agreement without the consent of Lenders holding more than 50% of the
aggregate Revolving Exposure of all Lenders if any such amendment, modification,
termination or waiver would have, as among all Classes, a disproportionately adverse
effect on the rights under this Agreement or any other Credit Document of Lenders
holding Revolving Exposure.
(d) Execution of Amendments, etc. Administrative Agent may, but shall have
no obligation to, with the concurrence of any Lender, execute amendments, modifications,
waivers or consents on behalf of such Lender. Any waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given. No notice to or demand
on any Credit Party in any case shall entitle any Credit Party to any other or further notice or
demand in similar or other circumstances. Any amendment, modification, termination, waiver or
consent effected in accordance with this Section I 0.5 shall be binding upon each Lender at the
time outstanding, each future Lender and, if signed by a Credit Party, on such Credit Party. In
addition, Administrative Agent may, with the consent of Borrowers, amend, modify, supplement
or execute a restatement of this Agreement (i) to cure any typographical error, defect or
inconsistency or (ii) to reflect the terms of this Agreement after giving effect to the Exit Facilities
Conversion Date and the provisions of Section 3.5 (including the deletion of any provisions
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hereof which are no longer operative); provided that any such amendment, modification or
supplement shall not adversely affect any Lender or Issuing Bank in any material respect.
10.6 Successors and Assigns; Participations.
(a) Generally. This Agreement shall be binding upon the parties hereto and
their respective successors and assigns and shall inure to the benefit of the parties hereto and the
successors and assigns of Lenders. No Credit Party's rights or obligations hereunder nor any
interest therein may be assigned or delegated by any Credit Party without the prior written
consent of all Lenders. Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, Affiliates of each of the
Agents and Lenders) any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Register. Borrowers, Administrative Agent and Lenders shall deem and
treat the Persons listed as Lenders in the Register as the holders and owners of the corresponding
Commitments, LC Deposits and Loans listed therein for all'purposes hereof, and no assignment
or transfer of any such Commitment, LC Deposit or Loan shall be effective, in each case, unless
and until recorded in the Register following receipt of an Assignment Agreement effecting the
assignment or transfer thereof, in each case, as provided in Section 1 0.6( d). Each assignment
shall be recorded in the Register on the Business Day the Assignment Agreement is received by
Administrative Agent, if received by 12:00 noon New York City time, and on the following
Business Day if received after such time, prompt notice thereof shall be provided to Borrowers
and a copy of such Assignment Agreement shall be maintained, as applicable. The date of such
recordation of a transfer shall be referred to herein as the "Assignment Effective Date." Any
request, authority or consent of any Person who, at the time of making such request or giving
such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on
any subsequent holder, assignee or transferee of the corresponding Commitments, LC Deposits
or Loans.
(c) Right to Assign. Each Lender shall have the right at any time to sell,
assign or transfer all or a portion of its rights and obligations under this Agreement, including all
or a portion of its Commitment, LC Deposit or Loans owing to it or other Obligations (provided,
however, that pro rata assignments shall not be required and each assignment shall be of a
uniform, and not varying, percentage of all rights and obligations under and in respect of any
applicable Loan and any related Commitments):
(i) to any Person meeting the criteria of clause (i) of the definition
of the term of "Eligible Assignee" upon the giving of notice to Borrowers and
Administrative Agent; and
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(ii) to any Person meeting the criteria of clause (ii) of the definition
of the term of "Eligible Assignee" upon giving of notice to Borrowers and Administrative
Agent and, in the case of assignments of Revolving Loans or Revolving Commitments to
any such Person (except in the case of assignments made by or to GSCP), consented to
by each Borrower and Administrative , ~ . g e n t (such consent not to be (x) unreasonably
withheld or delayed or, (y) in the case of Borrowers, required at any time an Event of
Default shall have occurred and then be continuing); provided, further each such
assignment pursuant to this Section 10.6(c)(ii) shall be in an aggregate amount of not less
than (A) $1,000,000 (or such lesser amount as may be agreed to by Borrowers and
Administrative Agent or as shall constitute the aggregate amount of the Revolving
Commitments and Revolving Loans of the assigning Lender) with respect to the
assignment ofthe Revolving Commitments and Revolving Loans and (B) $1,000,000 (or
such lesser amount as may be agreed to by Borrowers and Administrative Agent or as
shall constitute the aggregate amount of the Term Loans of the assigning Lender) with
respect to the assignment of Term Loans. Assignments by Related Funds shall be
aggregated for purposes of determining compliance with such minimum assignment
amounts.
(d) Mechanics. Assignments and assumptions of Loans, LC Deposits and
Commitments shaii only be effected by manual execution and delivery to Administrative Agent
of an Assignment Agreement. Assignments shall be effective as of the Assignment Effective
Date. In connection with all assignments there shall be delivered to Administrative Agent such
forms, certificates or other evidence, if any, with respect to United States federal income tax
withholding matters as the assignee under such Assignment Agreement may be required to
deliver pursuant to Section 2.20( c).
(e) Representations and Warranties of Assignee. Each Lender, upon
execution and delivery hereof or upon succeeding to an interest in the Commitments, LC
Deposits, and Loans, as the case may be, represents and warrants as of the Closing Date or as of
the Assignment Effective Date that (i) it is an Eligible Assignee; (ii) it has experience and
expertise in the making of or investing in commitments or loans such as the applicable Commit-
ments, LC Deposits or Loans, as the case may be; and (iii) it will make or invest in, as the case
may be, its Commitments, LC Deposits or Loans for its own account in the ordinary course and
without a view to distribution of such Commitments, LC Deposits or Loans within the meaning
of the Securities Act or the Exchange Act or other federal securities laws (it being understood
that, subject to the provisions of this Section 1 0.6, the disposition of such Commitments, LC
Deposits or Loans or any interests therein shall at all times remain within its exclusive control).
(f) Effect of Assignment. Subject to the terms and conditions of this Section
1 0.6, as of the Assignment Effective Date with respect to any Assignment Agreement (i) the
assignee thereunder shall have the rights and obligations of a "Lender" hereunder to the extent of
its interest in the Loans, LC Deposits and Commitments as reflected in the Register and shall
thereafter be a party hereto and a "Lender" for all purposes hereof; (ii) the assigning Lender
thereunder sha11, to the extent that rights and obligations hereunder have been assigned to the
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assignee, relinquish its rights (other than any rights which survive the termination hereof under
Section 10.8) and be released from its obligations hereunder (and, in the case of an assignment
covering all or the remaining portion of an assigning Lender's rights and obligations hereunder,
such Lender shall cease to be a party hereto on such Assignment Effective Date; provided,
anything contained in any of the Credit Documents to the contrary notwithstanding, such
assigning Lender shall continue to be entitled to the benefit of all indemnities hereunder as
specified herein with respect to matters arising out of the prior involvement of such assigning
Lender as a Lender hereunder); (iii) the Commitments shall be modified to reflect any
Commitment of such assignee and any Commitment of such assigning Lender, if any; and (iv) if
any such assignment occurs after the issuance of any Note hereunder, the assigning Lender shall,
upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender its
applicable Notes to Administrative Agent for cancellation, and thereupon each Borrower shall
issue and deliver new Notes, if so requested by the assignee and/or assigning Lender, to such
assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new
Revolving Commitments and/or outstanding Loans of the assignee and/or the assigning Lender.
(g) LC Deposits. In connection with each assignment of an LC Deposit, the
LC Deposit of the assigning LC Lender shall not be released, but shall instead be purchased by
the relevant assignee, and the amount of such LC Deposit shall continue to be held in the LC
Deposit Account for application (to the extent not already applied) in accordance with Section
2.4 to satisfy such assignee's obligations in respect ofthe LC Usage. Each LC Lender agrees that
immediately prior to each such assignment (i) Administrative Agent shall establish a new Sub-
Account in the name of the assignee, (ii) a corresponding portion of the amount held in the LC
Deposit Account credited by Administrative Agent to the Sub-Account of the assigning LC
Lender shall be purchased by the assignee and shall be transferred from the assigning LC
Lender's Sub-Account to the assignee's Sub-Account and (iii) if after giving effect to such
assignment the LC Deposit of the assigning LC Lender shall be zero, Administrative Agent shall
close the Sub-Account of such assigning LC Lender.
(h) Participations.
(i) Each Lender shall have the right at any time to sell one or more
participations to any Person (other than Holdings, any of its Subsidiaries or any of its
Affiliates) in all or any part of its Commitments, Loans or in any other Obligation.
(ii) The holder of any such participation, other than an Affiliate of
the Lender granting such participation, shall not be entitled to require such Lender to take
or omit to take any action hereunder except with respect to any amendment, modification
or waiver that would (A) extend the final scheduled maturity of any Loan, Note or Letter
of Credit (unless such Letter of Credit is not extended beyond the LC Termination Date)
in which such participant is participating, or reduce the rate or extend the time of
payment of interest or fees thereon (except in connection with a waiver of applicability of
any post-default increase in interest rates) or reduce the principal amount thereof, or
increase the amount of the participant's participation over the amount thereof then in
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effect (it being understood that a waiver of any Default or Event of Default or of a
mandatory reduction in the Commitment shall not constitute a change in the terms of
such participation, and that an increase in any Commitment or Loan shall be permitted
without the consent of any participant if the participant's participation is not increased as
a result thereof), (B) consent to the assign111cnt or transfer by any Credit Party of any of
its rights and obligations under this Agreement or (C) release all or substantially all of the
Collateral under the Collateral Documents (except as expressly provided in the Credit
Documents) supporting the Loans hereunder in which such participant is participating.
(iii) Each Borrower agrees that each participant shall be entitled to
the benefits of Sections 2.18(c), 2.19 and 2.20 and subject to the provisions of Section
2.23 to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (c) of this Section; provided, (x) a participant shall not be entitled
to receive any greater payment under Section 2.19 or 2.20 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such
participant, unless the sale of the participation to such participant is made with such
Borrower's prior written consent and (y) a participant that would be a Non-US Lender if
it were a Lender shall not be entitled to the benefits of Section 2.20 unless each Borrower
is notified of the participation sold to such participant and such participant agrees, for the
benefit of each Borrower, to comply with Section 2.20 as though it were a Lender;
provided further that, except as specifically set forth in clauses (x) and (y) of this
sentence, nothing herein shall require any notice to any Borrower or any other Person in
connection with the sale of any participation. The Lender who has assigned to any
participant that, by virtue of application of the provisions of this Section 1 0.6(h)(iii), is
subject to replacement under Section 2.23 agrees that such Lender can also be replaced
pursuant to the provisions of Section 2.23. To the extent permitted by law, each
participant also shall be entitled to the benefits of Section 10.4 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.17 as though it were a Lender.
(i) Certain Other Assignments and Participations. In addition to any other
assignment or participation permitted pursuant to this Section 1 0.6:
(i) any Lender may assign and/or pledge all or any portion of its
Loans, the other Obligations owed by or to such Lender, and its Notes, if any, to secure
obligations of such Lender including any Federal Reserve Bank as collateral security
pursuant to Regulation A of the Board of Governors and any operating circular issued by
such Federal Reserve Bank; and
(ii) notwithstanding anything to the contrary in this Section 1 0.6,
any Lender may sell participations (or otherwise transfer its rights) in or to all or a
portion of its rights and obligations under the Credit Documents (including all its rights
and obligations with respect to the Term Loans, Revolving Loans and Letters of Credit)
to one or more lenders or other Persons that provide financing to such Lender;
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provided, that no Lender, as between Borrowers and such Lender, shall be relieved of any
of its obligations hereunder as a result of any such assignment, pledge, participation or
other transfer and provided further, that in no event shall the applicable Federal Reserve
Bank, pledge, trustee, lender or other financing source described in the preceding clauses
(i) or (ii) be considered to be a "Lender" or be entitled to require the assigning, selling or
transferring Lender to take or omit to take any action hereunder.
10.7 Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or would otherwise be within
the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of
Default if such action is taken or condition exists.
10.8 Survival of Representations, Warranties and Agreements. All representations,
warranties and agreements made herein shall survive the execution and delivery hereof and the
making of any Credit Extension. Notwithstanding anything herein or implied by law to the
contrary, the agreements of each Credit Party set forth in Sections 2.18(c), 2.19, 2.20, 10.2, 10.3
and 10.4 and the agreements of Lenders set forth in Sections 2.17, 9.3(b) and 9.6 shall survive
the payment of the Loans, the return of the LC Deposits, the cancellation or expiration of the
Letters of Credit and the reimbursement of any amounts drawn thereunder, and the termination
hereof.
10.9 No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent
or any Lender in the exercise of any power, right or privilege hereunder or under any other
Credit Document shall impair such power, right or privilege or be construed to be a waiver of
any default or acquiescence therein, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any other power, right or
privilege. The rights, powers and remedies given to each Agent and each Lender hereby are
cumulative and shall be in addition to and independent of all rights, powers and remedies
existing by virtue of any statute or rule of law or in any of the other Credit Documents or any of
the Hedge Agreements. Any forbearance or failure to exercise, and any delay in exercising, any
right, power or remedy hereunder shall not impair any such right, power or remedy or be
construed to be a waiver thereof, nor shall it preclude the further exercise of any such right,
power or remedy.
10.10 Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be
under any obligation to marshal any assets in favor of any Credit Party or any other Person or
against or in payment of any or all of the Obligations. To the extent that any Credit Party makes
a payment or payments to Administrative Agent or Lenders (or to Administrative Agent, on
behalf of Lenders), or any Agent or Lenders enforce any security interests or exercise their rights
of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any
part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law,
any other state or federal law, common law or any equitable cause, then, to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights
and remedies therefor or related thereto, shall be revived and continued in full force and effect as
if such payment or payments had not been made or such enforcement or setoff had not occurred.
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10.11 Severability. In case any provision in or obligation hereunder or under any other
Credit Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
10.12 Obligations Several; Independent Nature of Lenders' Rights. The obligations
of Lenders hereunder are several and no Lender shall be responsible for the obligations or
Commitment of any other Lender hereunder. Nothing contained herein or in any other Credit
Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to
constitute Lenders as a partnership, an association, a joint venture or any other kind of entity.
The amounts payable at any time hereunder to each Lender shall be a separate and independent
debt, and each Lender shall be entitled to protect and enforce its rights arising out hereof and it
shall not be necessary for any other Lender to be joined as an additional party in any proceeding
for such purpose.
10.13 Headings. Section headings herein are included herein for convenience of
reference only and shall not constitute a part hereof for any other purpose or be given any
substantive effect.
10.14 APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
10.15 CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS
BROUGHT AGAINST ANY CREDIT PARTY ARISING OUT OF OR RELATING
HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS,
MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A)
ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS; (B) W AlVES ANY DEFENSE OF
FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN
ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED
OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE
CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION
10.1; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE
CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND
OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT; AND (E) AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY l,A W OR TO
BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY
OTHER JURISDICTION. AT ALL TIMES PRIOR TO THE EXIT FACILITIES
168
CONVERSION DATE, THE PARTIES HERETO SUBMIT TO THE JURISDICTION OF
THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF
GEORGIA.
10.16 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR
UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN
TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING
ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-
ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY
COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS
AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY
HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT
TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY
RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT
EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE
DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS
THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT
IT KNOWINGLY AND VOLUNTARILY W AlVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY
OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER
SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH
OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWAI.S, SUPPLEMENTS OR MODIFICATIONS
HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER
DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER.
IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
10.17 Confidentiality. Each Agent, and each Lender (which term shall for the purposes
of this Section 10.17 include Issuing Bank) shall hold all non-public information regarding
Holdings and its Subsidiaries and their businesses obtained by such Lender pursuant to the
requirements hereof in accordance with such Lender's customary procedures for handling
confidential information of such nature, it being understood and agreed by Holdings that, in any
event, each Agent and each Lender may make (i) disclosures of such information to Affiliates of
such Lender or Agent and to their respective agents and advisors (and to other Persons
authorized by a Lender or Agent to organize, present or disseminate such information in
connection with disclosures otherwise made in accordance with this Section 1 0.17) so long as, in
the case of any such Affiliates, such Persons have been advised of the confidential nature of such
information and instructed to maintain the confidentiality of such information and, in the case of
any such agents and advisors, such Persons have (A) a duty to keep such information
confidential or (B) have agreed to keep such information confidential, (ii) disclosures of such
information reasonably required by any bona fide or potential assignee, pledgee, transferee or
169
participant in connection with the contemplated assignment, pledge, transfer or participation of
any Loans or any participations therein or by any direct or indirect contractual counterparties (or
the professional advisors thereto) to any swap or derivative transaction relating to any Borrower
and its obligations (provided, such assignees, pledgees, transferees, participants, counterparties
and advisors are advised of and agree to be bound by either the provisions of this Section 10.17
or other provisions at least as restrictive as this Section 1 0.17), (iii) disclosure to any rating
agency when required by it, provided that, prior to any disclosure, such rating agency shall
undertake in writing to preserve the confidentiality of any confidential information relating to the
Credit Parties received by it from any of the Agents or any Lender, and (iv) disclosures required
or requested by any goverrunental agency or representative thereof or by the NAIC or pursuant
to legal or judicial process; provided, unless specifically prohibited by applicable law or court
order, each Lender and each Agent shall make reasonable efforts to notify Borrowers of any
request by any governmental agency or representative thereof (other than any such request in
connection with any examination of the financial condition or other routine examination of such
Lender by such governmental agency) for disclosure of any such non-public information prior to
disclosure of such information. In addition, each Agent and each Lender may disclose the
existence of this Agreement and the information about this Agreement to market data collectors,
similar services providers to the lending industry, and service providers to the Agents and the
Lenders in connection with the administration and management of this Agreement and the other
Credit Documents.
10.18 Usury Savings Clause.
(a) Notwithstanding any other provision herein with respect to each Credit
Party other than a Canadian Credit Party, the aggregate interest rate charged with respect to any
of the Obligations, including all charges or fees in connection therewith deemed in the nature of
interest under applicable law shall not exceed the Highest Lawful Rate. If the rate of interest
(determined without regard to the preceding sentence) under this Agreement at any time exceeds
the Highest Lawful Rate, the outstanding amount ofthe Loans made hereunder shall bear interest
at the Highest Lawful Rate until the total amount of interest due hereunder equals the amount of
interest which would have been due hereunder if the stated rates of interest set forth in this
Agreement had at all times been in effect. In addition, if when the Loans made hereunder are
repaid in full the total interest due hereunder (taking into account the increase provided for above)
is less than the total amount of interest which would have been due hereunder if the stated rates
of interest set forth in this Agreement had at all times been in effect, then to the extent permitted
by law, Borrowers shall pay to Administrative Agent an amount equal to the difference between
the amount of interest paid and the amount of interest which would have been paid if the Highest
Lawful Rate had at all times been in effect. Notwithstanding the foregoing, it is the intention of
Lenders and Borrowers to conform strictly to any applicable usury laws. Accordingly, if any
Lender contracts for, charges, or receives any consideration which constitutes interest in excess
of the Highest Lawful Rate, then any such excess shall be cancelled automatically and, if
previously paid, shall at such Lender's option be applied to the outstanding amount of the Loans
made hereunder or be refunded to Borrowers.
170
(b) If any prov1s1on of this Agreement or of any of the other Credit
Documents would obligate any Canadian Credit Party to make any payment of interest or other
amount payable to any Agent or any Lender in an amount or calculated at a rate which would be
prohibited by law or would result in a receipt by such Agent or such Lender of interest at a
criminal rate (as such terms are construed under the Criminal Code (Canada)) then,
notwithstanding such provisions, such amount or rate shall be deemed to have been adjusted with
retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be
so prohibited by law or so result in a receipt by such Agent or such Lender of interest at a
criminal rate, such adjustment to be effected, to the extent necessary, as follows: (1) firstly, by
reducing the amount or rate of interest required to be paid to such Agent or such Lender under
Section 2.8, and (2) thereafter, by reducing any fees, commissions, premiums and other amounts
required to be paid to such Agent or such Lender which would constitute "interest" for purposes
of Section 347 of the Criminal Code (Canada). Notwithstanding the foregoing, and after giving
effect to all adjustments contemplated thereby, if an Agent or Lender shall have received an
amount in excess of the maximum permitted by that section of the Criminal Code (Canada), such
Canadian Credit Party shall be entitled, by notice in writing to such Agent or such Lender, to
obtain reimbursement from such Agent or such Lender in an amount equal to such excess and,
pending such reimbursement, such amount shall be deemed to be an amount payable by such
Agent or such Lender such Canadian Credit Party. Any amount or rate of interest referred to in
this Section 10.18 shall be determined in accordance with GAAP as an effective annual rate of
interest over the term that the applicable Loan remains outstanding on the assumption that any
charges, fees or expenses that fall within the meaning of "interest" (as defined in the Criminal
Code (Canada)) shall, if they relate to a specific period oftime, be pro-rated over that period of
time and otherwise be pro-rated over the period from the Closing Date to the Maturity Date and,
in the event of a dispute, a certificate of a actuary appointed by Administrative Agent shall be
conclusive for the purposes of such determination.
10.19 Counterparts. This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
10.20 Effectiveness. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Holdings and Administrative
Agent of written or telephonic notification of such execution and authorization of delivery
thereof.
10.21 Patriot Act. Each Lender and Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies each Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies such Borrower, which
information includes the name and address of such Borrower and other information that will
allow such Lender or Administrative Agent, as applicable, to identify such Borrower in
accordance with the Act.
10.22 Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment Agreement shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
171
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act, or any other similar state laws
based on the Uniform Electronic Transactions Act.
10.23 Post-Closing Actions. Notwithstanding anything to the contrary contained in this
Agreement or the other Loan Documents, the parties hereto acknowledge and agree that
Holdings and its Subsidiaries shall be required to take the actions specified in Schedule 10.23 as
promptly as practicable, and in any event within the time periods set forth in Schedule 10.23 or
such other time periods as Administrative Agent may agree. The provisions of Schedule 10.23
shall be deemed incorporated by reference herein as fully as if set forth herein in their entirety.
All provisions of this Agreement and the other Credit Documents (including, without limitation,
all conditions precedent, representations, warranties, certificates, borrowing notices, covenants,
events of default and other agreements herein and therein) shall be deemed modified to the
extent necessary to effect the foregoing (and to permit the taking of the actions described above
within the time periods required above, rather than as otherwise provided in the Credit
Documents); provided that (a) to the extent any representation and warranty would not be true
because the foregoing actions were not taken on the Closing Date, the respective representation
and warranty shall be required to be true and correct in all material respects at the time the
respective action is taken (or was required to be taken) in accordance with the foregoing
provisions of this Section 10.23 and (b) all representations and warranties relating to the
Collateral Documents shall be required to be true immediately after the actions required to be
taken by this Section 10.23 have been taken (or were required to be taken). The parties hereto
acknowledge and agree that the failure to take any of the actions required above within the
relevant time periods required above shall give rise to an immediate Event of Default pursuant to
this Agreement.
10.24 Joint and Several Liability. Notwithstanding any other provision contained
herein or in any other Credit Document, if a "secured creditor" (as that term is defined under the
Bankruptcy and Insolvency Act (Canada)) is determined by a court of competent jurisdiction not
to include a Person to whom obligations are owed on a joint or joint and several basis, then any
Canadian Credit Party's Obligations (and the Obligations of each other Credit Party with respect
thereto), to the extent such Obligations are secured, only shall be several obligations and not
joint or joint and several obligations.
10.25 Limitations Act, 2002. Each of the par-ties hereto agree that any and all
limitation periods provided for in the Limitations Act, 2002 (Ontario), as amended from time to
time, shall be excluded from application to the Obligations and any undertaking, covenant,
indemnity or other agreement of any Credit Party provided for in any Credit Document to which
it is a party in respect thereof, in each case to fullest extent permitted by such Act.
10.26 Effect of Restatement. This Agreement shall, except as otherwise expressly set
forth herein, supersede the Existing Credit Agreement from and after the Restatement Date with
respect to the Loans, LC Deposits and Letters of Credit outstanding under the Existing Credit
Agreement as of the Restatement Date. The parties hereto acknowledge and agree, however, that
except to the extent contemplated hereby with respect to the prepayment of the Existing Term
Loans with the proceeds of the Second Lien Term Loans (a) this Agreement and all other Credit
172
Documents executed and delivered herewith do not constitute a novation, payment and
reborrowing or termination of the Obligations under the Existing Credit Agreement and the other
Credit Documents as in effect prior to the Restatement Date, (b) such Obligations are in all
respects continuing with only the terms being modified as provided in this Agreement and the
other Credit Documents, (c) the liens and security interests in favor of the Collateral Agent for
the benefit of the Secured Parties securing payment of such Obligations are in all respects
continuing and in full force and effect with respect to all Obligations and (d) all references in the
other Credit Documents to the Credit Agreement shall be deemed to refer without further
amendment to this Agreement.
(Remainder of page intentionally left blank]
173
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and deiivcrcd by their respective officers thereunto duly authorized as of the date first
written above.
12J5309Ncw Yorlc Server 7A
ALLIED HOLDINGS, INC.
By:
Thomas H. King
Executive Vice President and Chief Financial
Officer
ALLIED SYSTEMS, LTD. (L.P.)
By: Allied Automotive Group, Inc.,
its Managing General Partner
By:
Thomas H. King
Executive Vice President and Assistant
Treasurer
ACE OPERATIONS, LLC
AXIS NETHERLANDS, LLC
By: AXIS Group, Inc.,
its Sole Member and Manager
By:
Thomas H. King
Executive Vice President and
Assistant Treasurer
Signature Page to Amended and Restated First Lien Credit Agreement
1235309-New Yorl: StrVtr 7A
AH INDUSTRIES INC.
ALLIED AUTOMOTIVE GROUP, INC.
ALLIED FREIGHT BROKER LLC
ALLJ:ED SYSTEMS (CANADA) COMPANY
AXIS CANADA COMPANY
AXIS GROUP, INC.
COMMERCIAL CARRIERS, INC.
CORDINTRANSPORTLLC
C T SERVICES, INC.
F.J. BOUTELL DRIVEAWAY LLC
GACSINCORPORATED
QAT, INC.
RMXLLC
TERMINAL SERVICES LLC
TRANSPORTSUPPORTLLC
By: ~ ~
Thomas H. King
Executive Vice President and
Assistant Treasurer
AXIS ARETA, LLC
LOGISTIC SYSTEMS, LLC
LOGISTIC TECHNOLOGY, LLC
By: AX International Limited,
its Sole Member and Manager
By: ~ A I ! )
Thomas H. King
Executive Vice President and
Assistant Treasurer
Signature Page to Amended and Restated First Lien Credit Agreement
GOLDM.A._l\1 SACHS CREDIT PARTNERS L.P.,
: ~ - - . , . ~
Signature Page to Amended q:nd Restated First Lien Credit Agrument
123S309-Ncw Y otk Serv 7 A
1235309-New York Serva7A
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Administrative Agent, Collateral Agent, Swing
Line Lender and a Le er
Signature Page to Amended and Restated First Lien Credit Agreement
APPENDIX A-1
TO CREDIT AND GUARANTY AGREEMENT
Term Loan Commitments




..
Goldman Sachs Credit Partners L.P. $180,000,000.00 100%
Total $180,000,000.00
1
100%
The term loans will be fully funded on the Restatement Date.
APPENDIX A-1-1
APPENDIX A-2
TO CREDIT AND GUARANTY AGREEMENT
LC Commitments
- jf"- -
r . .. ,.; :O:b;::..-:

Goldman Sachs Credit Partners L.P. $ 50,000,000.00 100%
Total $ 50,000,000.00 100%
APPENDIX A-2-1
APPENDIX A-3
TO CREDIT AND GUARANTY AGREEMENT
Revolving Commitments

The CIT Group/Business Credit, Inc. $ 35,000,000.00 100%
Total $ 35,000,000.00 100%
APPENDIX A-3-1
APPENDIXB
TO CREDIT AND GUARANTY AGREEMENT
Notice Addresses
HOLDINGS, INC .
.... SYSTEMS, LTD. (L.P.)
OPERATIONS, LLC.
AH INDUSTRIES, INC.
AUTOMOTIVE GROUP, INC.
FREIGHT BROKER LLC
SYSTEMS (CANADA) COMPANY
ARETA, LLC
CANADA COMPANY
GROUP, INC.
NETHERLANDS, LLC
CARRIERS, INC.
IN TRANSPORT LLC
C T SERVICES, INC.
F.J. BOUTELL DRIVEA WAY LLC
GACS IN CORPORA TED
SYSTEMS LLC
TECHNOLOGY, LLC


SERVICES LLC
.... TRANSPORT SUPPORT LLC
160 Clairemont A venue
Suite 200
Decatur, Georgia 30030
Attention: ChiefFinancial Officer/Assistant Treasurer
Facsimile: 404-370-4206
in each case, with a copy to:
Troutman Sanders LLP
600 Peachtree Street, N.E.
Suite 5200
Atlanta, GA 30308
Attention: Hazen H. Dempster, Esq.
Facsimile: 404-962-6544
APPENDIX B-1
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Syndication Agent and a Lender:
Goldman Sachs Credit Partners L.P.
c/o Goldman, Sachs & Co.
30 Hudson Street, 17th Floor
Jersey City, NJ 07302
Attention: SBD Operations
Attention: Pedro Ramirez
Telecopier: (212) 357-4597
Email: gsd.link@gs.com
with a copy to:
Goldman Sachs Credit Partners L.P.
1 New York Plaza
New York, New York 10004
Attention: Rob Schatzman
Telecopier: (212) 902-3000
APPENDIX B-2
THE CIT GROUP/BUSINESS CREDIT, INC.,
as Administrative Agent, Collateral Agent,
Swing Line Lender and a Lender
Administrative Agent's Principal Office:
The CIT Group/Business Credit, Inc.
30 S. Wacker Drive
30th Floor
Chicago, IL 60606
Attn: Portfolio Manager
Facsimile: 312-906-5827
Swing Line Lender's Principal Office:
The CIT Group/Business Credit, Inc.
30 S. Wacker Drive
30th Floor
Chicago, IL 60606
Attn: Portfolio Manager
Facsimile: 312-906-5827
with a copy to:
Hunton & Williams LLP
200 Park A venue
New York, New York 10166
Attn: Bruce W. Moorhead, Jr., Esq.
Facsimile: 212-309-1883
APPENDIX B-3
JPMorgan Chase Bank, N.A.,
as Issuing Bank
Attention:
Facsimile:
1235309-New York Server 7 A- MSW
APPENDIX B-4
SCHEDULE 4.1(a)
Jurisdictions of Organization and Qualification
Credit Party State/Province
of Organization
Allied Holdings, Inc. Georgia
Allied Automotive Group, Inc. Georgia
QAT, Inc. Florida
Transport Support LLC Delaware
F.J. Boutell Driveaway LLC Delaware
Allied Freight Broker LLC Delaware
GACS Incorporated Georgia
Allied Systems (Canada) Company Nova Scotia
Allied Systems, Ltd. (L.P.) Georgia
RMXLLC Delaware
Commercial Carriers, Inc. Michigan
Axis Group, Inc. Georgia
AH Industries Inc. Alberta
Axis Netherlands, LLC Georgia
C T Services, Inc. Michigan
Terminal Services LLC Delaware
Axis Canada Company Nova Scotia
Axis Areta, LLC Georgia
Cordin Transport LLC Delaware
Logistic Technology, LLC Georgia
Logistic Systems, LLC Georgia
Ace Operations, LLC Georgia
1775223 _ 8.DOC
SCHEDULE 4.2
Equity Interests and Ownership
Agreements that would require issuance of additional membership interests or other Equity
Interests: None.
Ownership Interests in Subsidiaries
1
Name of Credit Party or Jurisdiction Ownership of outstanding Capital Stock*
Subsidia!):
Allied Holdings, Inc. Georgia Parent company, publicly owned
Allied Automotive Group, Inc. Georgia Allied Holdings, Inc.
AH Industries Inc. Alberta Allied Holdings, Inc.
Axis Group, Inc. Georgia Allied Holdings, Inc.
Haul Insurance Limited Cayman Allied Holdings, Inc.
QAT, Inc. Florida Allied Automotive Group, Inc.
Transport Support LLC Delaware Allied Automotive Group, Inc.
F. J. Boutell Driveaway LLC Delaware Allied Automotive Group, Inc.
Allied Freight Broker LLC Delaware Allied Automotive Group, Inc.
GACS Incorporated Georgia Allied Automotive Group, Inc.
Allied Systems (Canada) Company Nova Scotia Allied Automotive Group, Inc. (90%);
QAT, Inc. (1 0%)
Allied Systems, Ltd. (L.P.) Georgia Allied Automotive Group, Inc. (79% GP
interest; 1% LP interest); QAT, Inc (20%
LP interest)
RMXLLC Delaware Allied Systems, Ltd. (L.P.)
Commercial Carriers, Inc. Michigan GACS Incorporated
AX International Limited (f!k/a Bermuda Axis Group, Inc.
Kar-Tainer International Limited)
Axis Netherlands, LLC Georgia Axis Group, Inc.
C T Services, Inc. Michigan Axis Group, Inc.
Terminal Services LLC Delaware Axis Group, Inc.
Axis Canada Company Nova Scotia Axis Group, Inc.
Ace Operations, LLC Georgia Axis Group, Inc.
Axis Areta, LLC Georgia AX International Limited
Logistic Systems, LLC Georgia AX International Limited
Logistic Technology, LLC Georgia AX International Limited
Cardin Transport LLC Delaware C T Services, Inc.
Axis Logistica, S. de R.L. de C.V. Mexico Logistic Systems, LLC (2%); Logistic
Technology, LLC (98%)
Arrendadora de Equipo para el Mexico Axis Areta, LLC (99%); AX International
1
Allied Systems Holdings, Inc., a Delaware corporation, has been formed but, as of the Closing Date, has not been
organized. Therefore, the shares in this new entity have not, as of the Closing Date, been issued. When it is
organized, all of the shares in Allied Systems Holdings, Inc. will be issued to Allied Holdings, Inc.
1775223_8.00(
Transporte de Autom6vilcs, S.de
R.L. de C.V.
Axis Operadora Hermosillo, S.A. Mexico
de C.V.
Axis Operadora Mexico, S.A. de Mexico
C.V.
Axis Operadora Guadalajara, S.A. Mexico
de C.V.
Axis Operadora Monterrey, S.A. Mexico
de C.V.
Axis Traslados, S. de R.L. de C.V. Mexico
* Unless otherwise noted, ownership is 100%.
1775223 _ 8.DOC
Limited (1 %)
Axis Group, Inc. (1 %); Axis Areta, LLC
(99 %)
1\.xis Group, Inc. (99% ); Axis Areta, LLC
(1%)
Axis Group, Inc. (99%); Axis Areta, LLC
(1%)
Axis Group, Inc. (99%); Axis Areta, LLC
(1%)
Axis Logistica, S. de R.L. de C.V. (66%);
Axis Operadora Hermosillo, S.A. de C.V.
(33%)
Schedule 4.2 - Page 2
SCHEDULE 4. 7
Contingent Liabilities
None.
1775223_8.DOC
SCHEDULE 4.11
Adverse Proceedings
None.
1775223_8.DOC
SCHEDULE 4.13
Real Estate Assets
Company Terminal Address
Fee Owned/ LL Address LTerm Use Termination
Landlord Rights
Allied Agincourt Aginc ourt Rail Bovi Holdings Ltd 33 Post Road, Don Mo-Mo Use of l ,200 s.f. of office NIA
Systems Facility Mills ON M3B1Jl area, including employee
(Canada) 65 Passamore parking and common
Company Avenue washrooms and 1.75 acres
Scarborough, of land to be used for
ONM1V4T2 Office and vehicle
parking.
GE Capital 2300 Meadowvale Mo-Mo Modular building
Blvd. Mississauga
ON L5N 5P9
Allied Bramalea 23 Automatic Marcoux Bros. 2815 Lome A venue 10/1/03-9/30/08 with Used for truck repair and Month to month
Systems Rd. Trucking Ltd. Saskatton, SK S7J right of renewal for associated offices and per holdover
(Canada) Brampton, Ont. 05S one 5 year option. parking. provision
Company
North Park Chrysler Canada Gate 2 North Park Verbal Office
Drive, Gate 2 Drive, Bramalea ON
Between L6J 4Y6
Torbram &
Airport Rd.
Bramalea, ON
L6T4Y6
GE Capital 2300 Meadowvale Mo-Mo Modular building Verbal
Blvd, Mississauga,
ON L5N 5P9
Allied Burlington 4320 Harvester 1186521 Ontario 4320 Harvester Road, 12/1/05- 11130/09 Used for general offices
Systems Road Inc. Burlington ON L7L
(Canada) Burlington, 5S4
Company Ontario
L7L5S4
1775223_8.DOC
Company Terminal Address
Fee Owned/ LL Address LTerm Use
I
Termination
Landlord Rights
Allied Calgary 6710 Canadian Pacific 400, 125-9 A venue 4/15/83-6/30/02 with Used for office and NIA
Systems Ogdendale Rd., Limited Southeast, Calgary, I renewal term of 5 automobile service and
(Canada) S.E. Alberta T2G OP6 years to be exercised truck maintenance facility
Company Calgary, AB during last year ofL. and any other business
TIC 3A9 reasonably incidental to
L renewed pursuant the operation of a motor
to letter dated March vehicle haulaway
7, 2002 for additional business. (3.45 acres)
5 years.
Allied Charny 2709 De La Canadian National I 060 University St, 3/1/96-2/28/99 then Use of 81, I 05 square feet Either party may
Systems Rontonde Railway Company Room 10.167 month to month for parking and terminate L upon
(Canada) Charny, PQ Montreal Quebec pursuant to holdover maneuvering automobile 90 days written
Company G6X2M2 H3B 3A2 provision. carrier trucks and trailers, notice (during
and servicing the LL's holdover)
adjacent automobile
compound.
Allied Concord 551 Creditstone Canadian National 170 Central Parkway 1/1/94 until Used for handling and Either party may
l
Systems Road
I
Railway West Suite 500 terminated storage of vehicles. terminate L upon
(Canada) Concord, ON Mississauga ON 60 days written
Company L4K INS L5C4P4 notice
Allied Edmonton 12210-17th Canadian National I 060 University St, Mo-Mo Office I year written
Systems Street, N .E. Railway Room 10.167 notice
(Canada) Edmonton, AB Montreal Quebec
Company T6S IA6 H3B 3A2
Allied Halifax C/0 Autoport Autoport Limited P.O. Box 9 Eastern Mo- Mo since 1999 Used for maintaining a NIA l
!
Systems Eastern Passage Passage, Nova Scotia trailer as an office.
(Canada) I Talahassee B3G 1M4
Company Ave.
Shearwater, NS
BOJ 3AO
Allied Lambeth 6151 Colonel Fee NIA NIA Office NIA
Systems Talbot Rd.
(Canada) London, ON
Company N6P IJ2
1775223 _8.DOC
Schedule 4.13(b)- Page 2
Company Terminal Address
Fee Owned/ LLAddress LTerm Use Termination
Landlord Rights
Allied Moncton 1810 West Canadian National 1234 Main Street 2/5/80 until Use of Parcel A for Either party may
Systems Main St. Railway Company Moncton New terminated garage site and Parcel B terminate L upon
(Canada) Moncton, NB Brunswick E I C I H7 for truck and trailer 90 days written
Company EIC 8M7 storage. Initial space was notice
3.51 acres.
Allied Montreal C.P.R. Rail Canadian National 1100 de La 7/26/91- 12/31106 per Use of 15 acres of land N/A
Systems Yard-Cote St. Railway Company Gauchetiere Suite renewal of L dated for automobile storage
(Canada) Luc 400 P.O. Box 2 July 29, 2005. and maintenance of
Company Montreal, PQ Montreal Quebec tractor trailer units.
H4V 1H8 H3C 34
Allied Regina 1350 MeAra Canadian Pacific Room E21 0 Windsor Mo-Mo Office
Systems Street Station Montreal
(Canada) Regina, SK Quebec H3C 34
Company S4N 6Z8
Allied Saskatoon Chappel Drive Canadian National 22" Floor I 00004- L renewed 1/1/05 for Used for automobile
Systems Saskatoon, SK Railway Company 104 Avenue term through compound.
(Canada) S7K3K4 Edmonton Alberta 12/31/09
Company T5JOK2
Allied Vancouver I 005 Derwent Southern Railway 2102 River Drive 1111/05-10/31/08 Used for parking of auto N/A
Systems Way New Westminister carriers, parking of owner
(Canada) Annacis Isl. BC V3M 6S3 operator's vehicles.
Company New
Westminster,
BC V3M5R4
Coastland Wood 55 Rodgers Street Office 6 mo notice
Industries Ltd. Vancouver BC
V6R3X8
Allied Windsor 1790 Provincial Fee N/A NIA Office N/A
Systems Rd. R.R. #1
(Canada) (Terminal)
Company Windsor, ON
N9A 6J3
1775223 _8.DOC
Schedule 4.13(b)- Page 3
I
Fee Owned/ LL Address LTerm Use Termination
!
Company Terminal Address
Landlord Rights
I
Allied Windsor 2282 Walker Chrysler Canada 2282 Walker Road ll 11/87 until Used for storing and Terminable by
Systems Road LTD. Windsor, ON (Plant terminated loading of vehicles either party upon
(Canada) Windsor, ON #1) manufactured or 6 months written
Company (Plant #1) distributed by LL, and to notice
deliver vehicles to carriers
designated by LL.
Allied Winnipeg 736 Marion Canadian National P.O. Box 70449 411/81-4/ I /96 Used for a 4,000 square LLmay
Systems Street Railway Company Station A Toronto foot building to be used terminate upon
(Canada) Winnipeg, MB ONM5W2X5 for the servicing and 60 days written
Company R2J OK6 undercoating of motor notice
vehicles.
Canadian Pacific Suite 110 Granville Mo-Mo Compound
Square
200 Granville Street
Vancouver BC
V6C2R3
Allied
Winnipeg
737 P1inquet Fee N/A NIA Office NIA
Systems Ave
(Canada) Winnipeg, MB
Company
Allied Albuquerque l 02 Woodward The Atchison, One Santa Fe Plaza 111190 until Used for office, parking, Either party
Systems Ltd. SE Topeka and Santa 920 Southeast terminated and three truck docks. upon 30 days
(L.P.) Albuquerque, Fe Railway Quincy St Topeka written notice
NM 87102 Company (BNSF) Kansas 66612
Allied Anchorage 1749 Ship Ave. Joe & Mary 1749 Ship Avenue 5/1/06- 5/1/07 Used for one person N/A
Systems Ltd. Anchorage, AK Blackard Anchorage AK office and a driver's
(L.P.) 99501 99501 reporting area, and
equipment parking area.
1775223_8.DOC
Schedule 4.13(b)- Page 4
Company Terminal Address
Fee Owned/ LL Address LTerm Use Termination
Landlord Rights
Allied Atlanta 25 Southside Fee N!A N/A Office N/A
Systems Ltd. Ind. Pkwy., SE
(L.P.) Atlanta, GA
30354
Sublease to UPS Verbal
Autogistics
$350/mo
Allied Attorney's 323 Main Street Joseph B. Marzolf P.O. Box 135 lll/03 until Office Lmaybe
Automotive Office Holland, NY Holland NY 14080 terminated terminated at
Group, Inc. 14080 anytime by
either party upon
30 days written
notice
Allied Ayer I 83 Nickerson Fee N/A N/A Shop N/A
Systems Ltd. Framingham Road
(L.P.) Ashland, MA
01721
Allied Ayer Berkshire Blvd. Boston and Maine C/o Guilford 5/23/90 until Parcel 1 to be used for Either party
Systems Ltd. @Willow Rd. Corporation Transportation Ind tenninated transfer of cars from upon 30 days
(L.P.) Ayer, MA 7 Executive Park Dr Boston and Maine written notice
01432 Merrimack, NH Corporation parking
03054 facilities to auto dealers,
such operations to include
storage, maintenance, and
fueling of auto carrier
trucks. Parcel 2 shall only
be used for access to
Parcel I.
Allied Birmingham 3600 Ball St. CSX Transportation, 500 Water Street 1/1100 until Used for erecting and Either party
Systems Ltd. Birmingham, Inc. Jacksonville Fl 32202 tenninated maintaining an office and upon 180 days
(L.P.) AL 35234 maintenance facility; written notice
parking lot for employees;
parking lot for new autos.
Allied Bowling Green 1200 Corvette General Motors 3044 W Grand Blvd 11/24/81 until 13.57 acres to be used in Either party
Systems Ltd. Drive Corporation Detroit MI 48202 terminated connection with business upon 90 days
(L.P.) Bowling Green, of transporting autos. written notice
KY 42101
1775223_8.DOC
Schedule 4.13(b)- Page 5
Company Terminal Address
Fee Owned/ LL Address LTerm Use Termination
Landlord .Flights
Allied Buffalo 75 Ransier Dr. Erie County Suite 300 Liberty 51! /99-12/3 1/09 Allied shall build a N/A
Systems Ltd. West Seneca, Industrial Blvd 424 Main Street 15,000 (+or-) warehouse
(L.P.) NY 14224 Development Buffalo NY 14202 and distribution facility
Agency and install machinery and
equipment on the
Premises.
Restriction: No portion of
!
the Premises may be used i
I
for retail sales.
I
I
Allied Columbia 1 I I Burroughs Fee N/A NIA Office iN/A
Systems Ltd. Ave.
'
(L.P.) Cayce, SC
29169
Allied Commerce 645 Georgia Southeast Toyota I 00 NW 12'" A venue Verbal Office N/A
Systems Ltd. Highway 334 Deerfield Beach FL
(L.P.) Commerce, GA 33442
30529
Allied Cottage Grove 9450 Ideal Fee N/A NIA Office N/A
Systems Ltd. A venue South
(L.P.) Cottage Grove,
MN 55016
Allied Dearborn 21500 Mound Chrysler 12000 Lynn 7/1186-6/30/96 Used for automobile Either party
J
Systems Ltd. Road- Lot B Corporation Townsend Drive shipping and storage lot upon 30 days
(L.P.) Warren, MI Highland Park MI adjacent to Chrysler Plant. written notice
48091 48288
1775223_8.DOC
Schedule 4.13(b)- Page 6
Company Terminal Address
Fee Owned/ LL Address LTerm Use Termination
Landlord Rights
Allied Decatur 160 Clairemont Lepercq Corporate 355 Lexington Ave I 11/98-12/31107 with Used for general office NIA
Systems Ltd. Ave. Income Fund L.P. 14
1
h Floor two 5 year options to purposes
(L.P.) Decatur, GA NY, NY 10017 extend
30030
Sublease
Agreements with All Subleases:
B. Sheppard
Consulting Are located at 160
State Farm Clairemont A venue
CRS Insurance Decatur, GA 30030
Fidelity
Cafe 160
Prime Property
Dr. Marvin Winter
Talley, French
Thompson Rollins
Management
Agreement with
Prime Property
Allied Dodge City 6301 Wyoming Fee N/A N/A Office NIA
Systems Ltd. Ave.
(L.P.) Dearborn, MI
48126
6302 Wyoming Fee
Avenue
Allied Doraville 4000 Motors General Motors 3044 West Grand 8/22/49-8/30/50 Use relating toT's Maybe
Systems Ltd. Industrial Corporation Blvd Detroit, MI L auto-renews itself business of transporting terminated at
(L.P.) Doraville, GA 48202 annually until LL's automobiles and anytime by
30362 terminated. trucks. either party
Williams Scotsman 2310 Alcovy Road Mo-Mo Office I Modular Trailer
Dacula GA 30019
1775223 _8.DOC
Schedule 4.13(b) - Page 7
Company Terminal Address
Fee Owned/ LL Address LTerm Use Termination
Landlord Rights
Allied Henderson 9900 I-76 Union Pacific 1 800 Farnam St 6115/00-6114100 Used for employee and NIA
Systems Ltd. Service Road Railroad Company Omaha NE 68102 L renews itself truck parking, 4 stalls of
(L.P.) Henderson, CO annually until garage for maintenance of
80640 amended or T's trucks and space for
terminated. office trailer and for other
purposes incidental
Williams Scotsman 8211 Town Ctr Drive Verbal thereto.
Baltimore MD 21236
Allied Hutch Office HQ Global 1 00 West Big Seaver Mo-Mo Office N!A
Automotive Rd Suite 200
Group, Inc. Troy MI 48084
Allied Jacksonville 5761 w. 12
1
" csx 500 Water Street This was 3 original Office NIA
Systems Ltd. Street Jacksonville FL leases combined into
(L.P.) Jacksonville, 32202 one
FL 32254
Acton Mobile Ind 4909 Stepp Rd
Jacksonville FL
32216
Sublease UPS
Autogistics $350/
rno verbal
Allied Janesville 544 Kellogg General Motors 300 Renaissance Ctr Mo-mo Used as terminal 90 days notice
Systems Ltd. Avenue P.O. Box 300 Detroit
(L.P.) Janesville, WI MI 48265
53546 Sublease
SGS Automotive
Services
FJ Boutell
Terminal Services
1775223 _8 DOC
Schedule 4.13(b)- Page 9
Company Terminal Address
Fee Owned/ LL Address LTerm Use Termination
Landlord Rights
Allied Jessup 8575 Dorsey CSX (L with State 500 Water Street 7/6/94-7/1/2018 Used for the purpose of LL and Tenant
Systems Ltd. Run Rd. of MD) Jacksonville FL constructing and agree that if
(L.P.) Jessup, MD 32202 maintaining an underlying Lis
20794 automobile haul-away terminated, S-
facility and for all Tenant shall
purposes reasonably have the right to
related. terminate or
attorn to LL or
any other party
who succeeds to
the position of
HREwell PO Box 64895 LL
Baltimore MD 21 264 Mo-Mo Truck Parking
Allied Kansas City 1240 & 1241 Fee N/A N/A Office N/A
Systems Ltd. Claycomo Rd.
(L.P.) Kansas City,
MO 64119
(two properties)
Williams Scotsman 8211 Town Ctr Drive Mo-Mo Modular Building
Baltimore MD 21236
Allied Lawrenceville 1500 Winder Fee N/A NIA Office N/A
Systems Ltd. Hwy#8
(L.P.) Dacula,GA
30019
Williams Scotsman 2310 Alcovy Road Mo-Mo Storage
Dacula GA 30019
Allied Long Bead: 791 Edison Toyota !OONW 12m Ave Verbal Office
Systems Ltd. Avenue
I
Deerfield Beach FL
(L.P.) Long Beach, 33442
CA 90813
I
Allied Long Beach 21119 South Auto Truck Center, 1650 W. 139'" Street 12/30/05-12/30/06 Used for storing, The License may
Systems Ltd. Wilmington Inc. Gardena CA 90249 Mo-Mo retrieving, and inspecting be tem1inated at
(L.P.) Avenue, Jim Hausen vehicles. any time by
Carson, CA either party upon
30 days written
notice
i
!775223_8.DOC
Schedule 4.13(b) - Page 10
Company Terminal Address
Fee Owned/ LL Address LTerm Use Termination
Landlord Rights
Allied Louisville 6709 Grade Ln Fee N/A Office N/A
Systems Ltd. Louisville, KY
(L.P.) 40213
The Harry Kletter P.O. Box 32428 Renewed l/07 Vehicle storage anytime upon 60
Family Limited Louisville KY 40232 days written
Partnership notice
Allied Marysville 19550 Smokey Fee N/A N/A Office N/A
Systems Ltd. Road
(L.P.) Marysville, OH
43040
Allied Memphis 2355 Frisco Fee N/A N/A Office N/A
Systems Ltd. Avenue
(L.P.) Memphis, TN
38114 Sublease UPS
Autogistics
$350/mo
Allied Meridian 6209 Spector Southern Region 1200 Peachtree St 7/15/87 until Used for office, shop 60 days written
Systems Ltd. St. Industrial Realty, 12'h floor Atlanta GA terminated parking and washing notice
(L.P.) Meridian, MS Inc. (Norfolk 30309-3504 trucks, and employee
39307 Southern) parking in connection
with motor vehicle
transportation business.
Allied Miami 3200 N.W. 67th Florida East Coast One Malaga St P.O. 4/16/05-4/15/06 Used for Bldg A is office Lmaybe
Systems Ltd. Ave. Railway, LLC Box 1048 St and storage space; Bldg B terminated at
(L.P.) Miami,FL Augustine FL 32085 is vehicular service bldg anytime, by
33122 or garage; Parcel No.I is either party upon
for parking of auto 30 days written
carriers for day to day notice
use; Parcel No.2 is for
subgrade 12,000 gallon
fuel tank; Parcel No. 3 is
for open storage.
1775223 _&.DOC
Schedule 4.13(b) - Page 11
Company Terminal Address
Fee Owned/ LL Address LTerm Use Termination
Landlord Rights
Allied Midlothian 335 Old Hwy. Fee N/A N/A Office N/A
Systems Ltd. 67 North
(L.P.) Midlothian, TX
76065
Sublease to Mazda 7755 Irvine Ctr Drive Verbal Office
I
North America Irvine CA 92618
Sublease to The One Santa Fe Plaza Mo-Mo Parking
Atchison Topeka 920 Southeast
and Santa Fe Quincy Street Topeka
Railway (BNSF) KS 66612
Allied Mira Lorna 4500 Etiwanda Union Pacific 4500 Etiwanda Verbal Office N/A
Systems Ltd. Avenue Mira Avenue Mira Lorna
(L.P.) LomaCA CA 91752
91752
Allied Moraine 3200 General Motors 3044 W Grand Blvd 12/l 0/01-119/02 then Used for inspection, 90 days written
Systems Ltd. Springboro Pike I Corporation Detroit MI 48202 continuing thereafter storage, and loading of notice
(L.P.) Moraine, OH I until cancelled by LL's automobiles and
45439 either party. trucks.
Williams Scotsman 821 I Town Ctr Drive Mo-Mo 2 modular buildings
Baltimore MD 21236
Mo - :vio currently Maintenance Facility I
Brewer Investments 514 Gamewell Drive working on new lease
Miamisburg OH i
45342 I
-
Allied Nashville 743 Harding CSX Transportation, 500 Water Street 11/8/73 until Used for automobile 10 days written
Systems Ltd. Place Inc. Jacksonville FL terminated. handling facility. notice
(L.P.) Nashville, TN 32202
3721 I
Allied New Bostor. 36800 Sibley CSX (TDSI) 500 Water Street Office Effective until
Systems Ltd. Rd New Boston Jacksonville FL terminated by 30
(L.P.) MI 48164 32202 days notice
J775223_8.DOC
Schedule 4.13(b) - Page 12
Company Terminal Address
Fee Owned/ LL Address LTerm Use Termination
Landlord Rights
Allied New Castle 500 Lambson Shamrock 502 Lambson LN Mo-Mo Used for trucking
Systems Ltd. Lane Enterprises, LLC, as New Castle DE terminal offices
(L.P.) New Castle, DE assigned by Cochran 19720
19720 Realty
314 Bay West Bay West, Inc. 19 Davidson LN New 3/1/06-3/1/08 then Used for the parking, 30 days written
Boulevard Castle DE 19720 month to month repair, maintenance, and notice
New Castle, DE Harold West storage of trucks,
19720 automobiles and other
vehicles which are used in
Acton Mobile 1642 Paysphere Cir Mo - Mo Verbal connection with Tenant's
Chicago TL 60674 business operations. All
vehicles stored on the
premises should be
currently registered for
use.
Allied New Detroit 6515 Mount Fee N/A NIA Office N/A
Systems Ltd. Elliott
(L.P.) Detroit, MI
48211
Allied New Orleans 3300 The Alabama Great 600 W Peachtree St 9/3/02 until Used for terminal Lmaybe
Systems Ltd. Almon aster Southern Railroad Suite 1650 Atlanta, terminated operation hauling terminated at
(L.P.) Ave. Company (Norfolk GA 30308-3603 vehicles, and related anytime by
New Orleans, Southern) maintenance, and for either party upon
LA 70126 parking automobiles in 30 days written
connection with T's notice
business.
Allied Orlando 1401 E. General Drive 365 Taft Vineland Dr 7 I 15104-613 0107 Used for paved and Either party
Systems Ltd. Landstreet Rd. Holdings, LLC Suite I 05 Orlando FL fenced storage area. upon 60 days
(L.P.) Orlando, FL 32824 written notice
32824
Allied Palm Center 14201 Total Distribution 1401 E Landstreet 11/19/92 until Used for operating an upon 30 days
Systems Ltd. Corporate Way Services, Inc. (CSX) Road Orlando FL terminated. automotive haulaway written notice
(L.P.) Jupiter, FL 32824 facility including vehicle
33478 maintenance, washing,
and fueling.
l 775223 _8.DOC
Schedule 4.13(b)- Page 13
Company Terminal Address
Fee Owned/ LL Address LTerm Use Termination
Landlord Rights
Allied Petersburg 5107 County 5107 County Drive 707 Albany Ave 2/1/06-1/31/11 Used for any lawful NIA
Systems Ltd. Drive LLC Richmond VA 23224 purpose
(L.P.) Prince George,
VA
Allied Pontiac 3700 Campus General Motors 3044 West Grand 1 I 1187-12/31/87 then Used for truck shipping 30 days written
Systems Ltd. Drive Corporation Blvd Detroit MI automatically business in connection notice (see First
(L.P.) Pontiac, MI 48202 renewed until with the handling of GM Arndt to L)
48341 terminated. products.
Allied Port Jersey 69-71 New DiDomenico 69-71 New Hook RD 9/1/00-1111/00 then Used for parking of truck 60 days written
Systems Ltd. Hook Road Family Limited Bayonne NJ 07002 automatically trailers and motor I notice
(L.P.) Bayonne, NJ Partnership renewed every 60 vehicles.
07002 days until terminated.
75 Port Jersey Northeast Auto 403 Port Jersey Blvd Verbal
Blvd, Jersey Marine Jersey City NJ 07305
City, NJ 07305
Allied Reno 3 I 00 Mill St.- Hallmark 3 I 00 Mill Street 2/15/96-9/30/96. Used for office space 30 days written
Systems Ltd. Suite 112C Investments Suite 204 Reno NV notice (during
(L.P.) Reno, NV 89502 Holdover provision holdover)
89502 states that upon
expiration of L,
Lhold shall become a
month to month at
same terms as L.
Allied Ridgefield 300 Feet of Consolidated Rail 1000 Howard Blvd 6/1/05-5/31/07 Used for general and 90 days wntten
Systems Ltd. Victoria Corporation Mount Laurel NJ administrative offices in notice
(L.P.) Terrace 08054 connection with its
Ridgefield, NJ (Two separate business as an auto
07657 leases) distributor and
transporter. (32% of
building)
Allied Salt Lake City I 2790 South 850 Union Pacific 14 I 6 Dodge Street Month to month Office N/A
Systems Ltd. Clearfield West Omaha NE 68179
(L.P.) Salt Lake City,
UT 84120
1775223 _8.DOC
Schedule 4.13(b)- Page 14
Company Terminal Address
Fee Owned/ LL Address LTerm Use Termination
Landlord Rights
Allied San Diego 1309 West 24'" Pasha Services 1301 Canal Blvd Month to Month until Used for administration This is a month
Systems Ltd. Street Richmond VA 94804 terminated and loading to month L
(L.P.) National City, based on verbal
CA 91950 agreement
Allied Shelbyville 200 Kentucky Norfolk Southern 600 West Peachtree 6/1/03 until Used for office space in upon 30 days
Systems Ltd. Street Street Suite 1650 terminated connection with business written notice
(L.P.) Shelbyville, KY Atlanta GA 30308- of transportation and
40065 3603 management of auto
cargo units.
Pamela Pridemore P.O. Box 1322 Mo-Mo Vehicle storage 90 Days notice
Shelbyville KY
40066
Axis Group, South Brooklyn 7 4 acres at 3 9'" City of New York II 0 William Street 1111/06-12/31/21 Used for off loading, N/A
Inc. Street Pier Dept. of Small New York, NY loading, and vehicle
South Brooklyn Business Services 10038 inspections.
Marine
Terminal
Brooklyn, NY
11232
Allied Tampa 6901 Anderson csx 500 Water Street Office N!A
Systems Ltd. Rd. Jacksonville FL
(L.P.) Tampa, FL 32202
33634
Resun Leasing 3155 NW 44'h Ave 5/06-5/08 Modular building
Ocala FL 34482
Sublease UPS
Autogistics
$350/mo
Allied Titusville 6855 Tico Road Space Coast Airport 4756 Merlot Drive L#1: L#l: L#l and #2:
S ysterns Ltd. Titusville, FL Business Center, Rockledge FL 32955 1/06 until terminated Used for parking yard Lmaybe
(L.P.) 32780 Inc. L#2: L#2: terminated at
1/06 until terminated Unit #I: Terminal and anytime, by
dispatch office either party upon
Unit #2: Mechanics 30 days written
Garage notice
1775223_8.DOC
Schedule 4.13(b)- Page 15
Company Terminal
I
Address
Fee Owned/ LL Address LTerm Use Termination I
Landlord
Rights J
Allied Twin Oaks 2527 Market Robert Herr Box 8 Quarryville P A I 1/1/04-10/3 1105 Used for parking tractor upon 90 days
i
Systems Ltd. Street 17566 then month to month trailers and operating a written notice
(L.P.) Upper until terminated. motor carrier operation.
Chichester
Township,
Delaware
County, Aston,
PA
Allied Wayne Wayne, MI Ford 36555 Michigan Ave Office N/A
Systems Ltd. Wayne MI 48184
(L.P.)
GE Capital 51300 1-94 North Mo-Mo Used for portable office
Service Drive
Belleville MI 48111-
2268
Allied Wentzville 755 Parr Road 50 I Partnership 501 First Capital 05106 - 08-07 Office N/A
Systems Ltd. Wentzville MO Drive Suite 5 St
(L.P.) 63385 Charles MO 63301
Dan Cleanser
Allied West Chicago 225 S. Kress Toyota Motor Sales 225 Kress Road West Verbal at least 1997 Used for dispatcher Month to Month
Systems Ltd. Rd. Chicago IL 60126 until present
(L.P.) West Chicago,
IL 60186 Union Pacific 1800 Farnam St 3/20/03 until Used for modular office 30 days written
Railroad Omaha NE 68102 terminated (auto bldg and employee notice
renews annually) parking.
Allied Winston-Salem 3625 Williston Norfolk Southern 1200 Peachtree Street 3/l/99-2/28/03 4.4 acres to be used for There :'.s an early
Systems Ltd. Rd. 12'h Floor Atlanta GA loading, unloading, termination
(L.P.) Walkertown, 30309 2"d Arndt to L dated storing automobiles, and provision at 9
NC 27051 12/28/05 extends other equipment required of the 2"d
term through 2/28/09 to transport automobiles amendment
with right to renew on the large parcel of
for two consecutive property and parking on
terms of 3 years each. the smaller parcel of
property.
CT Services, CT Services, 200 Buell Rd., Lease is not Office
Inc. Inc. Ste. B-7 locatable
Rochester, NY
14624
1775223 __8.DOC
Schedule 4.13(b) - Page 16
Company Terminal Address
Fee Owned/ LL Address LTerm Use Termination
Landlord Rights
Allied East Brookfield 22 Phillip A. Northeast Vehicle 22 Phillip A. Quinn 1/26/05 until Used for performing The sublicense
Systems Ltd. Quinn Services, LLC, as Memorial highway, terminated services to auto maybe
(L.P.) Memorial subLL (CSX, as LL) Route 49 manufacturers at the terminated at
highway, Route Spencer, MA 01532 Terminal. Also two any time by
49 offices. either party upon
Spencer, MA 30 days written
01532 notice
Allied Flat Rock 22400 Vreeland Mazda Motor of 7755 Irvine Ctr Dr 1/l/93 until Used for offices related to Month to Month
Systems Ltd. Rd. America, Inc. Irvine CA 92718- terminated business of vehicle until terminated
(L.P.) Woodhaven, 2906 transport.
MI 48183
Allied Flint 4101 Holiday D&R Properties, 41247 Huron River 4/1/05- 10/31/07 Used for office and NIA
Systems Ltd. Drive Inc. Drive Belleville MI vehicle repair business
(L.P.) Flint, MI 48507 48111 and activities related,
including parking of
transport and employee
vehicles.
Allied Fremont 45250 Fremont Toyota 100 NW 12'n Ave 1996 until terminated To be used for as long as I Month to Month
I
Systems Ltd. Blvd Fremont, Deerfield Beach FL Verbal Allied hauls Toyotas from
I
until terminated
(L.P.) CA 94538 33442 this site.
Allied Fremont/ I 031 Bayshore Benicia Industries, 1344 World Trade 8/1/82 until Used as office space L may be
Systems Ltd. Benicia Road Inc. Center Baltimore MD terminated terminated at
(L.P.) Benicia, CA 21202 anytime by
94510 either party upon
30 days written
notice
Allied Ft Wayne 12502 Fogwell Fee NIA NIA Office NIA
'
I
Systems Ltd. Parkway I
(L.P .) Roanoke, fN
J
46783
1775223 _ 8.DOC
Schedule 4.13(b) -Page 8
Company Terminal Address
Fee Owned/ LL Address LTerm Use Termination
Landlord Rights
CT Services, CT Services, 20 Oak Hollow 20 Oak Hollow Columbia Center 201 l 0/l/04-9/30/09 with Used for general offices N/A
Inc. Inc. Suite 240 Limited Partnership W Big Beaver Road option to renew for
Southfield, MI Suite 1200 Troy MI additional five year
48034 48084 term.
CT Services CT Services, 2480 Secaucus New York 1 Railroad Ave 9/1/98-8/31103 then Used for the transfer of LLmay
Inc. Rd. Susquehanna and Cooperstown NY auto-renewing autos to/from railcars, to terminate at
North Bergen, Western Railway 13326 annually until and from facilities, anytime upon
NJ 07047 Corporation terminated temporary storage while 180 days written
awaiting transit. notice
T may terminate
at anytime if
economics of
auto hauling in
NJ adversely
change upon 60
days written
notice toLL
Other
termination
rights: See
Agreement
Cord in Cord in 2801 Schaefer Grand Trunk 277 Front Street West 4/1/85-3/31/88 Used for operation of Either party may
Transport Transport Rd. Western RR Floor 5 Toronto ON LL's automotive terminate L upon
Dearborn, MI Company M5V2X7 Term extended to compound for loading and 60 days written
48126 12/3 1/05 pursuant to unloading automobiles, notice
letter dated 10/22/02 and storage of vehicles in
connection thereof.
Axis Group, Axis Group, 1500 Lomita Hunt Enterprises 4416 West 154'" 4/15/04-4/14/09 plus Used for a 20 acre rear NIA
Inc. Inc. Boulevard Street one 5 year option to portion of a larger 38.48
Wilmington, Lawndale CA 90260 renew acre parcel, including
CA 22,330 square foot metal
industrial building.
1775223_8.DOC
Schedule 4.13(b) -Page 17
i
Termination l
Company Terminal Address
Fee Owned/ LL Address LTerm Use
Landlord
Rights I
Tenninal Tenninal 1 acre in Fee NIA NIA Storage NIA !
Services Inc. Services LLC Soldotna,
Alaska (lot 16
block 2-
Stubblefield
~
Subdivision)
Tenninal Tenninal 2551 s. 800 Clifford Burton and I 0/11/05-9/31110 Used for receiving, NIA
Services LLC Services LLC West Brian Burton preparing, and
Salt Lake City, transporting vehicles.
Utah
Tenninal Tenninal 20462 84JH Alexander& 822 Bishop Street 12/1/05-2/28/11 Use of 121 ,250 square NIA
Services LLC Services LLC A venue South Baldwin, Inc. Honolulu Hawaii (5 years, 3 months) feet of general office,
Kent, 96813 receiving, storing,
Washington shipping, assembly,
I
98032 accessory installation,
vehicle inspection, light
I
See also: manufacturing.
_j
72"d Street
Kent, WA
1775223_8-DOC
Schedule 4.13(b)- Page 18
SCHEDULE 4.14
Environmental Matters
None.
1775223 _ 8.DOC
SCHEDULE 4.16
Material Contracts
I. Agreement between Allied Automotive Group, Inc. and Ford Motor Company dated April 3, 1992,
assigned to UPS Autogistics, Inc., together with all amendments, restatements and modifications.
2. Agreement between Allied Systems, Ltd. (L.P.) and Daimler Chrysler Corporation dated as of December 1,
1999, together with all amendments, restatements and modifications.
3. Master Transportation Agreement between Allied Automotive Group, Inc. and General Motors
Corporation, dated as of January 2, 2004, together with all amendments, restatements and modifications.
4. The Credit Parties listed below have entered into the following collective bargaining agreements:
Collective Bargaining Allied Company Union Effective Dates
Agreement.
National Master Automobile Allied Systems, Ltd. (L.P.); Teamsters National 6/1/03-5/31/08
Transporters Agreement; F.J. Boutell Driveaway Automobile Transporters
4 Supplemental Agreements Company, Inc.; Transport Industry Negotiating
(Eastern, Central-Southern, Support, Inc.
3
Committee ("TNATINC")-
Western, Michigan Office
Workers)
2
various Teamster locals
Janesville, WI (2 CBAs) Allied Systems, Ltd. (L.P.) United Auto Workers Local 7/1/02-6/30/06
95
Renton, WA Terminal Service Co.
4
Teamsters Local 763 511/02- 4/30/06
Union City, IN Transport Support, Inc. Teamsters Local 135 6/1/03 - 5/31/08
Anchorage, AL Allied Systems, Ltd. Teamsters Local 959 1111/03 - 5/31/08
Henderson, CO Allied Systems, Ltd. International Association of 611/03-5/31/08
Machiirists District Lodge
86/Local Lodge 606
Marysville, OH Allied Systems, Ltd. International Association of 6/1/05-5/31/08
Machinists District LodEe 54
Mishawaka, IN Transport Support, Inc. Teamsters Local 364 6/1/03-5/31108
Eastern Canada Car Carriers Allied Systems (Canada) Teamsters Locals 938, 880, 11/1/02- 10/31/05
Company 106,69
Vancouver, BC Allied Systems (Canada) Teamsters Local 214 1/1/03- 12/31/06
Company
Canadian Prairies Allied Systems (Canada) Western Canada Counsel of 4/1/01-12/31/05
Company Teamsters (Teamster Locals
362, 395, 979)
Edmonton Office Workers Allied Systems (Canada) Teamsters Local 362 111/03-12/31105
2
The final 2003-2008 collective bargaining agreement, applicable to Allied Systems, Ltd. (L.P.) ("Systems") only, has not been
published or printed. 1be documents delivered to the ;\dministrative Agent -- specifically, the 1999-2003 version of the CBA,
plus highlights documents containing language editions and deletions for the 2003-2008 CB,\ -- are the best, most current
documents summarizing the new 2003-2008 CBA. One item missing from the highlights documents is an express provision that
the 2003-2008 CR\ should be applicable to Systems only. Systems does not concede that it is subject to any CR\ between
TNATINC and the NATLD (the National Automobile Transporters Labor Division, the multi-employer bargaining association
from which Systems withdrew in early 2002, well before the negotiations for this new CB,-\. began).
3
Now, F.J. Boutell Driveaway LLC and Transport Support, LLC.
4
Now, Terminal Services, LLC.
1775223 _8.DOC
Collective Bargaining Allied Company Union Effective Dates
Agreement.
Company
Montreal Office Workers Allied Systems (Canada) Teamsters Local106 1111102- 10/31/05
Company
Ontario Office Workers Allied Systems (Canada) Teamsters Local 938 11/14/03- 10/31105
Company
Windsor, Ont. Security Allied Systems (Canada) Teamsters Local 938 6/1/02- 5/31/07
Workers Company
Maritime Provinces Allied Systems (Canada) Teamsters Local927 411/03- 3/31/06
Company
Dearborn, MI Cordin Transport, Inc. Teamsters Local 299 5/31/05 - 5/31/08
Renton, W A Machinists Terminal Service Co. Machinists Local 206 10/31/04- 10/31/08
1775223 _ 8.DOC
Schedule 4.16 - Page 2
SCHEDULE 4.19
Employee Matters
None.
1775223_8.DOC
SCHEDULE 4.20
Employee Benefit Plans
Compliance with Section 515 of ERISA
Allied Systems, Ltd. allegedly failed to comply with the requirements of Section 515 of
ERISA with respect to the Teamsters Union 25 Health Services and Insurance Plan. The parties
entered into a settlement agreement in regard to the alleged violation on May 25, 2005.
Liability to Employee Benefit Plan or Trust under Title IV of ERISA
The Borrowers have a continuing obligation to contribute to the following single-
employer Employee Benefit Plans under Title IV of ERISA:
Allied Defined Benefit Pension Plan
Allied Systems, Ltd. UAW Local 95 Unit 2 Retirement Income Plan
Allied Systems, Ltd. Office Workers UAW Local 95 Pension Plan and Trust
The Borrowers also have a continuing obligation under various collective bargaining
agreements to contribute to the following multiemployer plans:
Central States, Southeast and Southwest Areas Pension Fund
Western Conference of Teamsters Supplemental Benefit Plan
Western Conference ofTeamsters Pension Plan
LB. ofT. Union Local No. 710 Pension Fund
Central Pennsylvania Teamster Defined Benefit Plan
Teamsters Pension Trust Fund ofPhiladelphia and Vicinity
Teamsters Joint Council No. 83 of Virginia Pension Fund
Freight Drivers and Helpers Local Union No. 557 Pension Plan
Trucking Employees ofNorth Jersey Welfare Fund Inc.- Pension Plan
New England Teamster & Trucking Industry Pension Fund
National Pension Plan
Automotive Machinists Pension Plan
Alaska Teamster-Employer Pension Plan
International Brotherhood of Teamsters No. 528 Money Purchase Pension Plan
Teamsters Local Union No. 115 Pension Plan
Southern States Savings and Retirement Plan Trust Fund
International Brotherhood of Teamsters No. 528 Money Purchase Pension Plan
Central States, Southeast and Southwest Areas Health and Welfare Fund
Western Teamsters Welfare Trust
Teamsters Health & Welfare Fund ofPhiladelphia and Vicinity
Automobile Transporters Welfare Fund ofNew York
Health Fund 917
1775223_8.DOC
I B ofT Union Local 710 Health and Welfare Fund
Teamsters Joint Council No. 83 of Virginia Health & Welfare Fund
Teamsters Union 25 Health Services and Insurance Plan
New York State Teamsters Co unci I Health & Hospital Fund
Trucking Employees ofNorth Jersey \Xlelfare Fund, Inc. (Local 560
Michigan Conference ofTeamsters Welfare Fund
Teamsters Local 170 Health and Welfare Fund
Teamsters Local 251 Health Services and Insurance Plan
Alaska Teamsters Employer Welfare Plan
Teamsters Misc.
Joint Council ofTeamsters Welfare
Teamsters Death Benefit Trust Fund
Northwest lAM Benefit Trust- Denta
Machinists Health & Welfare Trust Fund
Teamsters Miscellaneous Security Fund
Joint Council of Teamsters No. 42 Welfare Trust Fund
International Association ofMachinists Northwest Welfare Plan
Northwest lAM Benefit Trust
Washington Teamsters Welfare Trust
Freight Drivers and Helpers Local Union No. 557 Health and Welfare Fund
ERISA Events
An ERISA Event may have occurred due to a partial withdrawal from the Automotive
Machinists Pension Plan.
Health or Welfare Benefits for Retirees or Former Employees
Certain retirees of the Borrowers receive health benefits under the Allied Retiree Benefit
Plan.
Some of the multiemployer health and welfare funds to which the Borrowers contribute
provide for retiree health benefits.
Pension Plans
The Borrowers maintain the following Pension Plans:
Allied Defined Benefit Pension Plan
Allied Systems, Ltd. UA W Local 95 Unit 2 Retirement Income Plan
Allied Systems, Ltd. Office Workers UAW Local95 Pension Plan and Trust
Potential for Liability for Withdrawal from Multiemployer Plans
The Borrowers contribute to, or have contributed to, the following Multiemployer Plans
(within the meaning of Section 4203 of ERISA):
1775223_8.00('
Schedule 4.20 - Page 2
Central States, Southeast and Southwest Areas Pension Fund
Western Conference ofTeamsters Supplemental Benefit Plan
Western Conference ofTeamsters Pension Plan
Teamsters Pension Trust Fund of Philadelphia & Vicinity
LB. ofT. Union Local No. 710 Pension Fund
Teamsters Joint Council No. 83 of Virginia Pension Fund
Freight Drivers and Helpers Local Union No. 557 Pension Plan
Trucking Employees of North Jersey Welfare Fund Inc.- Pension Plan
Central Pennsylvania Teamster Defined Benefit Plan
New England Teamster & Trucking Industry Pension Fund
National Pension Plan
Automotive Machinists Pension Plan
Alaska Teamster-Employer Pension Plan
Teamsters Local Union No. 115 Pension Plan
Most of these Multiemployer Plans are believed to have unfunded vested benefits, for
which the potential liability for a complete withdrawal would be greater than zero.
Canadian Plans
Eastern Canada Car Carriers Pension Plan -multi-employer defined benefit plan
registered under the Pension Benefits Standards Act, 1985 (Canada) that covers
bargaining employees. This pension plan has a funding deficit on both a solvency and
going-concern basis. The potential liability for withdrawal could be greater than zero.
Allied Systems (Canada) Company Pension Plan - single employer defined contribution
pension plan that covers non-bargaining employees.
Manulife Financial policy numbers G90540A, G90540B, G90540C, and G90540D -
provide supplemental health and welfare benefits to all employees in Canada
(bargaining and non-bargaining)
There are 34 retired employees of one or more Canadian Credit Parties who receive
post-retirement life, dependent life, health, and dental benefits under one or more
policies issued by The Manufacturers Life Insurance Company.
There are 3 former employees of a predecessor company to the Canadian Credit Parties
who receive, and until attainment of age 65 will continue to receive, health and welfare
benefits funded by the Canadian Credit Parties.
1775223_ 8. DOC
Schedule 4.20 - Page 3
SCHEDULE 4.25(ii)
Barrow County, Georgia
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Allied Systems, Ltd. (L.P.)
Bane One Leasing Corporation
007-2004-000802 1-23-2004
Leased equipment
Allied Systems, Ltd. (L.P.)
Bane One Leasing Corporation
007-2004-005066 4-23-2004
Leased equipment
Allied Systems, Ltd. (L.P.)
Bane One Leasing Corporation
007-2005-000382 1-7-2005
Leased equipment
DeKalb County, Georgia
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
1775223_8DOC
Allied Systems, Ltd. (L.P.)
BTM Financial & Leasing Corporation B-4
442001005128 7-11-2001
Precautionary filing- equipment lease
Allied Automotive Group, Inc.
Hewlett-Packard Company
442001004273 6-5-2001
Precautionary filing leased equipment
Allied Systems, Ltd. (L.P.)
Merrill Lynch Capital, a division ofMerrill Lynch Business
Financial Services Inc.
442004001630 4-21-2004
Leased equipment
Allied Systems, Ltd. (L.P.)
Merrill Lynch Capital, a division ofMerrill Lynch Business
Financial Services Inc.
442004002180 5-26-2004
Leased equipment
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
1775223 _ 8.DOC
Allied Systems, Ltd. (L.P.)
Merrill Lynch Capital, a division of Merrill Lynch Business
Financial Services Inc.
442004003380 8-6-2004
Leased equipment
Allied Systems, Ltd. LP
DaimlerChrysler Financial Services Americas LLC
f/k/a Mercedes Benz Credit Corporation
441999006027 7-19-1999
Leased tractor trailers
Allied Systems, Ltd. (L.P.)
BancBoston Leasing Inc.
060199819424 9-8-1998
Leased equipment
Allied Systems, Ltd. L.P.
Mercedes -Benz Credit Corporation
441000003039 3-29-2000
Trailers
Allied Holdings, Inc.
The CIT Group/Business Credit, Inc., as Collateral Agent
060200704134 4-3-2007
All assets
Allied Holdings, Inc.
Yucaipa Transportation, LLC
044200701663 5-8-2007
Purchased Title Vehicles
Ace Operations, LLC
Yucaipa Transportation, LLC
044200701323 4-12-2007
Purchased Titled Vehicles
Ace Operations, LLC
The CIT Group/Business Credit. as Collateral Agent
060200704135 4-3-2007
All assets
Allied Automotive Group, Inc.
Yucaipa Transportation, LLC
044200701321 4-12-2007
Purchased Title Vehicles
Schedule 4.25(ii) - Page 2
Debtor: Allied Automotive Group, Inc.
Secured Party: The CIT Group/Business Credit, Inc., as Collateral Agent
FileNo.: 060200704136 4-3-2007
Collateral: AJl assets
Debtor: Axis Areta, LLC
Secured Party: Yucaipa Transportation, LLC
File No.: 044200701324 4-12-2007
Collateral: Purchased Title V chicles
Debtor: Axis Areta, LLC
Secured Party: The CIT Group/Business Credit, Inc, as Collateral Agent
File No.: 060200704137 4-3-2007
Collateral: All assets
Debtor: Axis Areta, LLC
Secured Party: Yucaipa Transportation, LLC
File No.: 044200701325 4-12-2007
Collateral: Purchased Title V chicles
Debtor: Axis Areta, LLC
Secured Party: The CIT Group/Business Credit, Inc, as Collateral Agent
File No.: 060200704142 4-3-2007
Collateral: All assets
Debtor: Axis Areta, LLC
Secured Party: Yucaipa Transportation, LLC
File No.: 044200701326 4-12-2007
Collateral: Purchased Title Vehicles
Debtor: Axis Areta, LLC
Secured Party: The CIT Group/Business Credit, Inc, as Collateral Agent
File No.: 060200704141 4-3-2007
Collateral: All assets
Debtor: Axis Areta, LLC
Secured Party: Yucaipa Transportation, LLC
File No.: 044200701322 4-12-2007
Collateral: Purchased Title Vehicles
Debtor: GACS Incorporated
Secured Party: Yucaipa Transportation, LLC
File No.: 044200701327 4-12-2007
Collateral: Purchased Title Vehicles
I 775223 _ 8.DOC
Schedule 4.25(ii) - Page 3
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Lien Creditor:
File No.:
GACS Incorporated
The CIT Group/Business Credit, Inc., as Collateral Agent
06020074140 4-3-2007
All assets
Logistic Systems, LLC
Yucaipa Transportation, LLC
044200701328 4-12-2007
Purchased Title Vehicles
Logistic Systems, LLC
The CIT Group/Business Credit, Inc., as Collateral Agent
060200704139 4-3-2007
All assets
Logistic Technology, LLC
Yucaipa Transportation, LLC
044200701329 4-12-2007
Purchased Title V chicles
Logistic Technology, LLC
The CIT Group/Business Credit, Inc., as Collateral Agent
060200704138 4-3-2007
All assets
Allied Holdings, Inc.*
Internal Revenue Service
Lien Book 220, Page 166 8-15-2005
*Allied Holdings believes that the above-described federal tax lien is void because it was
filed in violation of the automatic stay provisions of Section 362( a)( 5) of the Bankruptcy
Code.
Fulton County, Georgia
Debtor:
Secured Party:
Secured Party:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
I 775223 _ 8.DOC
Allied Systems, Ltd. (L.P.)
BancBoston Leasing Inc.
060199819424 9-18-1998
Precautionary filing- Lease Agreement
Allied Systems, Ltd. (L.P.)
Fleet Capital Corporation
BancBoston Leasing Inc.
060199909461 5-12-1999
Leased equipment
Schedule 4.25(ii)- Page 4
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Allied Systems, Ltd. (L.P.)
Fleet Capital Corporation, successor by merger to BancBoston
Leasing Inc.
060200215363 11-8-2002
Leased equipment
Axis 1\reta, LLC
The CIT Group/Business Credit, Inc, as Collateral Agent
060200704133 4-3-2007
All assets
Delaware Secretary of State
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.;
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
177522J8.DOC
Allied Freight Broker LLC
The CIT Group/Business Credit, Inc., as Collateral Agent
2007 1240059 4-3-2007
All assets
Allied Freight Broker LLC
Yucaipa Transportation, LLC
2007 1348720 4-11-2007
Purchased Title Vehicles
Transport Support LLC
The CIT Group/Business Credit, Inc., as Collateral Agent
2007 12401 09 4-3-2007
All assets
Transport Support LLC
Yucaipa Transportation, LLC
2007 1348415 4-11-2007
Purchased Title V chicles
Terminal Services LLC
The CIT Group/Business Credit, Inc., as Collateral Agent
20071239994 43-2007
All assets
Terminal Services LLC
Yucaipa Transportation LLC
2007 1348456 4-11-2007
Purchased Title Vehicles
Schedule 4.25(ii)- Page 5
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
F.J. Boutell Driveaway LLC
The CIT Group/Business Credit, Inc., as Collateral Agent
2007 1239820 4-3-2007
All assets
F.J. Boutell Driveaway LLC
Yucaipa Transportation, LLC
2007 1348605 4-11-2007
Purchased Title Vehicles
Cordin Transport LLC
The CIT Group/Business Credit, Inc., as Collateral Agent
2007 1239721 4-3-2007
All assets
Cordin Transport LLC
Yucaipa Transportation, LLC
2007 1348647 4-11-2007
Purchased Title Vehicles
RMXLLC
The CIT Group/Business Credit, Inc., as Collateral Agent
2007 1239929 4-3-2007
All assets
RMXLLC
Yucaipa Transportation LLC
2007 1348530 4-11-2007
Purchased Title Vehicles
Florida Secretary of State
Debtor: QAT, Inc.
Secured Party: The CIT Group/Business Credit, Inc., as Collateral Agent
File No.: 200705211663 4-3-2007
Collateral: All assets
Debtor: QAT, Inc.
Secured Party: Yucaipa Transportation, LLC
File No.: 200705275351 4-11-2007
Collateral: Purchased Title Vehicles
1775223 _ 8.DOC
Schedule 4.25(ii) - Page 6
Michigan Department of State
Debtor:
Secured Party:
"R11<> 1\J,-,
~ .I.J.V .l ... v ..
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Alberta, Canada
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
1775223_8.!){)('
C T Services, Inc.
US Bancorp
')(\{\;11 (\ 1 ')'70 '7
LVV"'"'t 17 .l L I o- I
Office equipment
Commercial Carriers, Inc.
The CIT Group/Business Credit, Inc.
2007052127-6 4-3-2007
All assets
Commercial Carriers, Inc.
Yucaipa Transportation, LLC
2007057275-4 4-11-2007
Purchased Title Vehicles
CT Services, Inc.
The CIT Group/Business Credit, Inc., as Credit Agent
2007052128-8 4-30-2007
All assets
CT Services, Inc.
Yucaipa Transportation, LLC
2007057274-2 4-11-2007
Purchased Title Vehicles
AH Industries Inc.
The CIT Group/Business Credit, Inc.
07032920980 3-29-2007
All personal property
AH Industries Inc.
Goldman Sachs Credit Partners, L.P.
07050412217 5-4-2007
All personal property
AH Industries Inc.
Goldman Sachs Credit Partners, L.P.
07050412266 5-4-2007
All personal property
Schedule 4.25(ii) - Page 7
Debtor:
Secured Party:
File No.:
Collateral:
Nova Scotia, Canada
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
AH Industries Inc.
The CIT Group/Business Credit, Inc.
07050412563 5-4-2007
All personal property
Allied Systems (Canada) Company/Compagnie Systemes
Allied (Canada)
The CIT Group/Business Credit, Inc.
12228706 3-29-2007
Personal property
Allied Systems (Canada) Company/Compagnie Systemes
Allied (Canada)
The CIT Group/Business Credit, Inc.
12232120 3-300.-2007
Personal property
Axis Canada Company
The CIT Group/Business Credit, Inc.
12228722 3-29-2007
All personal property
Numerous Jurisdictions
Fixture filings filed in connection with the Existing DIP Credit Agreement
(the Credit Parties are in the process of terminating these fixture filings)
1775223 _ 8.DOC
Schedule 4.25(ii) - Page 8
SCHEDULE 6.1(i)
Existing Indebtedness
Allied Holdings, Inc. Series A and Series B 8 5/8% Senior Notes due 2007- Indenture
Senior Secured-Super-Priority Debtor In Possession And Exit Credit and Guaranty Agreement, dated as of March 30, 2007, among Allied Holdings, Inc., a
Georgia corporation, and Allied Systems, Ltd. (L.P.), a Georgia limited partnership, as Borrowers, certain Subsidiaries of Allied Holdings, Inc., as guarantors,
each as a debtor and debtor in possession, the lenders party thereto, Goldman Sachs Credit Partners L.P., as lead arranger and syndication agent, and The CIT
Group/Business Credit, Inc., as administrative agent and collateral agent
Intercompany Note, dated as of March 30, 2007, executed by and between the Credit Parties to evidence intercompany indebtedness
Reimbursement Obligations with respect to the letters of credit listed on the following chart:
Applicant
I
Beneficiary Issuing Bank LOC# Description
~
Issuedfrom GE Senior Credit Facility
Allied Systems, Ltd. (L.P.) ScotiaBank Wachovia SM216052W Canadian Cash Management
Allied Holdings, Inc. State of Florida Wachovia SM220127W WC Self-Ins FL
Allied Systems, Ltd. (L.P.) Greenwich Insurance Co. Svenska Handelsbanken S0608l WC Self-Ins MO
I
Allied Systems, Ltd. (L.P.) Reliance Insurance Co. Svenska Handelsbanken 805337 Collateral for Auto Liability program 89
I
to 96 i
Allied Systems, Ltd. (L.P.) State of Georgia Svenska Handelsbanken S05363 WC Self-Ins GA
Allied Systems, Ltd. (L.P.) State of Ohio Svenska Handelsbanken S05336 WC Self-Ins OH
l
Allied Systems, Ltd. (L.P.) State of Kentucky Svenska Handelsbanken S06105 WC Self-Ins KY
Allied Holdings, Inc. Ryder System, Inc. Svenska Handelsbanken S06120 Ryder Legal Settlement
Allied Holdings, Inc. American Alternative Insurance Svenska Handelsbanken 805362 Collateral for excess auto liability
I
Allied Holdings, Inc. National Union (AIG) Svenska Handelsbanken 806039 Collateral for 2006/2007 Auto Liability
I
I
1775223_8.DOC
SCHEDULE 6.2(1)
Certain Liens
Barrow County, Georgia
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Allied Systems, Ltd. (L.P.)
Bane One Leasing Corporation
007-2004-000802 1-23-2004
Leased equipment
Allied Systems, Ltd. (L.P.)
Bane One Leasing Corporation
007-2004-005066 4-23-2004
Leased equipment
Allied Systems, Ltd. (L.P.)
Bane One Leasing Corporation
007-2005-000382 1-7-2005
Leased equipment
DeKalb County, Georgia
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
I 775223_8 DOC
Allied Systems, Ltd. (L.P.)
BTM Financial & Leasing Corporation B-4
442001005128 7-11-2001
Precautionary filing- equipment lease
Allied Automotive Group, Inc.
Hewlett-Packard Company
442001004273 6-5-2001
Precautionary filing leased equipment
Allied Systems, Ltd. (L.P.)
Merrill Lynch Capital, a division of Merrill Lynch Business
Financial Services Inc.
442004001630 4-21-2004
Leased equipment
Allied Systems, Ltd. (L.P.)
Merrill Lynch Capital, a division of Merrill Lynch Business
Financial Services Inc.
442004002180 5-26-2004
Leased equipment
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
1775223_8.DOC
Allied Systems, Ltd. (LP.)
Merrill Lynch Capital, a division ofMerrill Lynch Business
Financial Services Inc.
442004003380 8-6-2004
Leased equipment
Allied Systems, Ltd. LP
DaimlerChrysler Financial Services Americas LLC
f/k/a Mercedes Benz Credit Corporation
441999006027 7-19-1999
Leased tractor trailers
Allied Systems, Ltd. (L.P.)
BancBoston Leasing Inc.
060199819424 9-8-1998
Leased equipment
Allied Systems, Ltd. L.P.
Mercedes -Benz Credit Corporation
441000003039 3-29-2000
Trailers
Allied Holdings, Inc.
The CIT Group/Business Credit, Inc., as Collateral Agent
060200704134 4-3-2007
All assets
Allied Holdings, Inc.
Yucaipa Transportation, LLC
044200701663 5-8-2007
Purchased Title Vehicles
Ace Operations, LLC
Yucaipa Transportation, LLC
044200701323 4-12-2007
Purchased Titled Vehicles
Ace Operations, LLC
The CIT Group/Business Credit. as Collateral Agent
060200704135 4-3-2007
All assets
Allied Automotive Group, Inc.
Yucaipa Transportation, LLC
044200701321 4-12-2007
Purchased Title Vehicles
Schedule 6.2(1) - Page 2
Debtor: Allied Automotive Group, Inc.
Secured Party: The CIT Group/Business Credit, Inc., as Collateral Agent
File No.: 060200704136 4-3-2007
Collateral: All assets
Debtor: Axis Areta, LLC
Secured Party: Yucaipa Transportation, LLC
File No.: 044200701324 4-12-2007
Collateral: Purchased Title Vehicles
Debtor: Axis Areta, LLC
Secured Party: The CIT Group/Business Credit, Inc, as Collateral Agent
File No.: 060200704137 4-3-2007
Collateral: All assets
Debtor: Axis Areta, LLC
Secured Party: Yucaipa Transportation, LLC
File No.: 044200701325 4-12-2007
Collateral: Purchased Title Vehicles
Debtor: Axis Areta, LLC
Secured Party: The CIT Group/Business Credit, Inc, as Collateral Agent
File No.: 060200704142 4-3-2007
Collateral: All assets
Debtor: Axis Areta, LLC
Secured Party: Yucaipa Transportation, LLC
File No.: 044200701326 4-12-2007
Collateral: Purchased Title Vehicles
Debtor: Axis Areta, LLC
Secured Party: The CIT Group/Business Credit, Inc, as Collateral Agent
File No.: 060200704141 4-3-2007
Collateral: All assets
Debtor: Axis Areta, LLC
Secured Party: Yucaipa Transportation, LLC
File No.: 044200701322 4-12-2007
Collateral: Purchased Title Vehicles
Debtor: GACS Incorporated
Secured Party: Yucaipa Transportation, LLC
File No.: 044200701327 4-12-2007
Collateral: Purchased Title Vehicles
1775223 8.DOC
Schedule 6.2(1) - Page 3
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Lien Creditor:
File No.:
GACS Incorporated
The CIT Group/Business Credit, Inc., as Collateral Agent
06020074140 4-3-2007
All assets
Logistic Systems, LLC
Yucaipa Transportation, LLC
044200701328 4-12-2007
Purchased Title V chicles
Logistic Systems, LLC
The CIT Group/Business Credit, Inc., as Collateral Agent
060200704139 4-3-2007
All assets
Logistic Technology, LLC
Yucaipa Transportation, LLC
044200701329 4-12-2007
Purchased Title Vehicles
Logistic Technology, LLC
The CIT Group/Business Credit, Inc., as Collateral Agent
060200704138 4-3-2007
All assets
Allied Holdings, Inc.*
Internal Revenue Service
Lien Book 220, Page 166 8-15-2005
*Allied Holdings believes that the above-described federal tax lien is void because it was
filed in violation of the automatic stay provisions of Section 362(a)(5) of the Bankruptcy
Code.
Fulton County, Georgia
Debtor:
Secured Party:
Secured Party:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
I 775223 _ 8.DOC
Allied Systems, Ltd. (L.P.)
BancBoston Leasing Inc.
060199819424 9-18-1998
Precautionary filing- Lease Agreement
Allied Systems, Ltd. (L.P .)
Fleet Capital Corporation
BancBoston Leasing Inc.
060199909461 5-12-1999
Leased equipment
Schedule 6.2(1) -Page 4
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Allied Systems, Ltd. (L.P.)
Fleet Capital Corporation, successor by merger to BancBoston
Leasing Inc.
060200215363 11-8-2002
Leased equipment
Axis Areta, LLC
The CIT Group/Business Credit, Inc, as Collateral Agent
060200704133 4-3-2007
All assets
Delaware Secretary of State
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.;
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
1775223_8.DOC'
Allied Freight Broker LLC
The CIT Group/Business Credit, Inc., as Collateral Agent
2007 1240059 4-3-2007
All assets
Allied Freight Broker LLC
Yucaipa Transportation, LLC
2007 1348720 4-11-2007
Purchased Title Vehicles
Transport Support LLC
The CIT Group/Business Credit, Inc., as Collateral Agent
2007 1240109 4-3-2007
All assets
Transport Support LLC
Yucaipa Transportation, LLC
2007 1348415 4-11-2007
Purchased Title Vehicles
Terminal Services LLC
The CIT Group/Business Credit, Inc., as Collateral Agent
20071239994 43-2007
All assets
Terminal Services LLC
Yucaipa Transportation LLC
2007 1348456 4-11-2007
Purchased Title Vehicles
Schedule 6.2(1) - Page 5
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
FileNo.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
F.J. Boutell Driveaway LLC
The CIT Group/Business Credit, Inc., as Collateral Agent
2007 1239820 4-3-2007
All assets
F.J. Boutcil Driveaway LLC
Yucaipa Transportation, LLC
2007 1348605 4-11-2007
Purchased Title Vehicles
Cordin Transport LLC
The CIT Group/Business Credit, Inc., as Collateral Agent
2007 1239721 4-3-2007
All assets
Cordin Transport LLC
Yucaipa Transportation, LLC
2007 1348647 4-11-2007
Purchased Title Vehicles
RMXLLC
The CIT Group/Business Credit, Inc., as Collateral Agent
2007 1239929 4-3-2007
All assets
RMXLLC
Yucaipa Transportation LLC
2007 1348530 4-11-2007
Purchased Title Vehicles
Florida Secretary of State
Debtor: QAT, Inc.
Secured Party: The CIT Group/Business Credit, Inc., as Collateral Agent
File No.: 200705211663 4-3-2007
Collateral: All assets
Debtor: QAT, Inc.
Secured Party: Yucaipa Transportation, LLC
File No.: 200705275351 4-11-2007
Collateral: Purchased Title Vehicles
I 775223 _ 8.DOC
Schedule 6.2(1) - Page 6
Michigan Department of State
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Alberta, Canada
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
1775223-8.00('
C T Services, Inc.
US Bancorp
2004191278-7
Office equipment
9-29-2004
Commercial Carriers, Inc.
The CIT Group/Business Credit, Inc.
2007052127-6 4-3-2007
All assets
Commercial Carriers, Inc.
Yucaipa Transportation, LLC
2007057275-4 4-11-2007
Purchased Title Vehicles
CT Services, Inc.
The CIT Group/Business Credit, Inc., as Credit Agent
2007052128-8 4-30-2007
All assets
CT Services, Inc.
Yucaipa Transportation, LLC
2007057274-2 4-11-2007
Purchased Title Vehicles
AH Industries Inc.
The CIT Group/Business Credit, Inc.
07032920980 3-29-2007
All personal property
AH Industries Inc.
Goldman Sachs Credit Partners, L.P.
07050412217 5-4-2007
All personal property
AH Industries Inc.
Goldman Sachs Credit Partners, L.P.
07050412266 5-4-2007
All personal property
Schedule 6.2(1) - Page 7
Debtor:
Secured Party:
FileNo.:
Collateral:
Nova Scotia, Canada
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
Debtor:
Secured Party:
File No.:
Collateral:
AH Industries Inc.
The CIT Group/Business Credit, Inc.
07050412563 5-4-2007
All personal property
Allied Systems (Canada) Company/Compagnie Systemes
Allied (Canada)
The CIT Group/Business Credit, Inc.
12228706 3-29-2007
Personal property
Allied Systems (Canada) Company/Compagnie Systemes
Allied (Canada)
The CIT Group/Business Credit, Inc.
12232120 3-300.-2007
Personal property
Axis Canada Company
The CIT Group/Business Credit, Inc.
12228722 3-29-2007
All personal property
Numerous Jurisdictions
Fixture filings filed in connection with the Existing DIP Credit Agreement
(the Credit Parties are in the process of terminating these fixture filings)
1775223 8.00('
Schedule 6.2(1) - Page 8
SCHEDULE 6.5(iv)
Certain Restrictions on Subsidiary Distributions
None.
1775223_8.DOC
SCHEDULE 6.6(i)
Certain Investments
Axis Group, Inc. owns 25% of the shares issued by Auto Logistics Solutions, Inc., which
is a defunct company, and, accordingly, this interest has no value.
1775223_8.DOC
SCHEDULE 6.8(a)
Planned Asset Sales
The Borrowers anticipate that the real property located at 25 Southside Industrial
Parkway, Atlanta, Georgia 30354 will be sold.
1775223_8.DOC
SCHEDULE 6.8 (b)
Restructuring Asset Sales
None.
1775223_8.DOC
SCHEDULE 6.11(d)
Certain Mfiliate Transactions
The Company is a party to split dollar insurance agreements with certain of its
officers and directors.
1775223_8.DOC
SCHEDULE 10.23
Post-Closing Actions
None.
l775223_8.DOC
EXHIBITB
EXECUTION COPY
LIMITED WAIVER AND AMENDMENT NO. 1 TO CREDIT AGREEMENT
AND PLEDGE AND SECURITY AGREEMENT
This LIMITED WAIVER AND AMENDMENT NO. 1 TO CREDIT
AGREEMENT AND PLEDGE AND SECURITY AGREEMENT, dated as of
May 29, 2007 (this "Amendment"), to (i) the Amended and Restated First Lien
Secured Super-Priority Debtor In Possession and Exit Credit and Guaranty
Agreement, dated as of May 15, 2007 (the "Credit Agreement"), by and among
ALLIED HOLDINGS, INC., a Georgia Corporation ("Holdings"), ALLIED
SYSTEMS, LTD. (L.P.), a Georgia limited partnership ("Systems" and, together
with Holdings, the "Borrowers") and CERTAIN SUBSIDIARIES OF
HOLDINGS, the Lenders party hereto from time to time, GOLDMAN SACHS
CREDIT PARTNERS L.P., as Lead Arranger and as Syndication Agent and THE
CIT GROUP/BUSINESS CREDIT, INC. as Administrative Agent (together with
its permitted successors in such capacity,
11
Administrative Agent") and as Collateral
Agent (together with its permitted successors in such capacity,
11
Collateral Agent";
capitalized terms used herein not otherwise defined herein or otherwise amended
hereby shall have the meanings ascribed thereto in the Credit Agreement) and (ii) the
Amended and Restated Pledge and Security Agreement (First Lien) dated as of May
15, 2007 by and among the Credit Parties and the Collateral Agent (the "Pledge and
Security Agreement").
RECITALS:
WHEREAS, pursuant to Section 3.4(k) of the Credit Agreement, it is a
condition precedent to the conversion of the Credit Facilities into Exit Facilities that
Ho1dings give the Lenders not less than ten Business Days' prior written notice of its
intent to exercise the Exit Facilities Option (the "Ten Day Notice Requirement");
WHEREAS, Borrowers have requested that Requisite Lenders agree to (i)
waive the Ten Day Notice Requirement and certain other provisions of the Credit
Agreement and (ii) make certain amendments to the Credit Agreement and Security
Agreement to facilitate the conversion of the Exit Facilities; and
WHEREAS, Administrative Agent and Requisite Lenders have agreed to
waive the Ten Day Notice Requirement and certain other provisions of the Credit
Agreement and also amend certain provisions of the Credit Agreement, in each case,
in the manner, and subject to the terms and conditions, provided for herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
2
SECTION I. LIMITED WAIVERS. Subject to the terms and conditions set
forth herein and in reliance on the representations and warrants of the Credit Parties
set forth herein:
(a) the Requisite Lenders hereby (i) waive the requirement under
Section 5.1(a) of the Credit Agreement that the Borrowers deliver the monthly
financial statements (along with the Financial Officer Certificatiqn) for the month of
April, 2007 (the "April Monthly Financials") on or before May 30, 2007; provided
that this waiver Shall cease to be of.any force or effect if the Borrowers fail to deliver
the April Monthly Financials to the Administrative Agent by June 29, 2007; and
(b) the Requisite Lenders hereby waive compliance with the Ten
Day Notice Requirement.
SECTION II. AMENDMENTS.
(a) Section 3.3 of the Credit Agreement is hereby amended by
inserting the following as the last sentence of such section:
Each of the parties hereto acknowledges and agrees that each of
the documents required to be executed and delivered by the Credit
Parties in accordance with Section 3.4 of this Amendment (other
than the notice required by Section 3.4(k) and those certain
documents previously delivered on the Closing Date and the
Restatement Date) shall be e ~ e c u t e d and delivered on the Exit
Facilities Conversion Date by the applicable Reorganized Debtors
(as such term is defined in the Plan) and not the Debtors (as such
term is defined in the Plan).
(b) Section 3.4(e)(iv) of the Credit Agreement is hereby amended
by deleting the word "final" from such section.
(c) Section 3.4(e)(vii) of the Credit Agreement is hereby amended
by deleting such section in its entirety and inserting the following in lieu thereof:
(vii) the Canadian Court shall have issued the Canadian
Confirmation Order; the Canadian Confirmation Order shall be in
full force and effect) shall not have been reversed, vacated or
stayed and shall have not been amended, supp1emented, varied or
otherwise modified without the prior written consent of the
Requisite Lenders;
(d) Section 8.1(x) of the Credit Agreement is hereby amended by
deleting the period (".") at the end of such clause and inserting the following in lieu
thereof:"; or".
3
(e) Section 8.1 of the Credit Agreement is hereby amended by
inserting the following two clauses after clause (x) of such Section 8.1:
(y) With respect to the Confirmation Order (i) any
Credit Party shall fail to comply with the tenns of the
Confirmation Order in any material respect, (ii) the Confirmation
Order Shall be amended, supplemented, stayed, reversed, vacated
or otherwise modified in any respect adverse to the Lenders
without the written consent of the Requisite Lenders, or (iii) any
Credit Party shall file a motion for reconsideration with respect to
the Final Confirmation Order; or
(z) With respect to the Canadian Confirmation Order
(i) any Credit PartY shall fail to comply with the terms of tl1e
Canadian Confirmation Order in any material respect, (ii) the
Canadian Confirmation Order shall be amended, supplemented,
stayed, reversed, vacated or otherwise modified in any respect
adverse to the Lenders without the written consent of the Requisite
Lenders? or (iii) any Credit Party shall file a motion to amend, vary
or set aside the Canadian Confirmation Order.
(f) Section 1.1 of the Security Agreement is hereby amended by
deleting the definition of "Excluded Accounts" appearing therein in its entirety and
inserting the following definition in lieu thereof:
"Excluded Deposit Accounts" shall mean (i) any Deposit
Account exclusively used fo_r all or any of payroll, benefits, taxes,
escrow, customs, insurance impress accounts or other fiduciary
purposes (ii) any Deposit Account that does not have a daily
balance, individually, in excess of $25,000, or, in the aggregate
\Vith each other account described in this clause (ii), in excess of
$200,000 and (iii) the Deposit Account in the name of Holdings
established pursuant to the Plan for the sole purpose of paying
unsecured creditors of Grantors who have elected to have their
claims paid in cash; provided that such Deposit Account (a) shan
be funded concurrently with the consummation of the Plan,
directly (or indirectly through Holdings) by cash in an amount
equal to that provided solely by one or more of Sponsor, its
Controlled Investment Affiliates and certain unsecured creditors of
the GrantorS, (b) the aggregate amount deposited into such
Account shan not exceed $1,500,000 and (c) Grantors shan not at
any time transfer any funds into such Deposit Account other than
as expressly permitted pursuant to clause (iii)( a).
4
(g) Section 4.4.4(b)(ii) of the Security Agreement is hereby
amended by deleting such section in its entirety and inserting the following in lieu
thereof:
(ii) (A) the aggregate daily balance on deposit in any
Excluded Deposit Account described in clause (ii) of the definition
thereof shall at no time exceed $25,000, (B) the aggregate daily
balance on deposit in all such Excluded Deposit Accounts shall at
no time exceed $200,000 and (C) at no time shall the payroll
accounts of Grantors have on deposit funds in the aggregate in
excess of an amount necessary to pay payroll of the Grantors
coming due and payable in within five Business Days after such
time.
SECTION III. CONDITIONS PRECEDENT TO EFFECTIVENESS
The effectiveness of the waivers and amendments set forth in this
Amendment are subject to the satisfaction, or waiver, of the following conditions on
or before the date hereof (the "Amendment Effective Date"):
(a) Borrowers, the other Credit Parties, Requisite Lenders and the
Administrative Agent shall have indicated their consent by the execution and delivery
of the signature pages hereof to the Administrative Agent.
(b) The Administrative Agent shall have received a waiver and
amendment to the Second Lien Credit Agreement and Pledge and Security
Agreement (as defined therein) substantially in the form of this Amendment and duly
executed and delivered by the requisite number of lenders thereunder and the Second
Lien Collateral Agent.
(c) The Administrative Agent and Lenders shall have received
such other documents and infonnation regarding Credit Parties and the Credit
Documents as the Administrative Agent or Lenders may reasonably request.
SECTION IV. REPRESENTATIONS AND WARRANTIES
A. Corporate Power and Authority. Each Credit Party has all
requisite corporate power and authority to enter into this Amendment and to carry out
the transactions contemplated by, and perform its obligations under, the Credit
At:,rreement, as amended by this Agreement (the "Amended Credit Agreement") and
the Pledge and Security Agreement, as amended by this Agreement (the "Amended
Pledge and Security Agreement" and, together with the Amended Credit
Agreement, the "Amended Agreements").
5
B. Authorization of Amendments. The execution and delivery of
this Amendment have been duly authorized by all necessary corporate or partnership
(as applicable) action on the part of each Credit Party.
C. No Conflict. The' execution and delivery by each Credit Party of
this Amendment and the performance by each Credit Party of the Amended
Agreements do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to any Cfedit Party, the certificate or
articles of incorporation or bylaws (or other organizational documents) of any Credit
Party or any order, judgment or decree of any court or other agency of government
binding on any Credit Party, (ii) conflict with, result in a breach of or constitute (with
due notice or lapse oftime or both) a default under any material indenture, mortgage,
deed to secure debt, deed of trust, lease, agreement or other instrument to which any
Credit Party is a party or by which any Credit Party or any of its property is bound
(any of the foregoing, a "Contractual Obligation"), (iii) result in or require the
creation or imposition of any Lien upon any of the properties or assets of a Credit
Party other than those in favor of the Collateral Agent, on behalf of itself and the
Secured Parties, pursuant to the Credit Documents, or (iv) require any approval of
stockholders or any approval or consent of any Person under any Contractual
Obligation of any Credit Party other than those that have been made or obtained.
D. Governmental Consents. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
required in connection with the execution and delivery by each Credit Party of this
Amendment or the performance by the Credit Parties of the Amended Agreements
(otherthen such orders as have already been entered by the Bankruptcy Court).
E. Binding Obligation. This Amendment has been duly executed
and delivered by each Credit Party and this Amendment and the Amended
Agreements constitute the legal, valid and binding obligation of each Credit Party
enforceable against each Credit Party in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization
or other similar laws affecting creditors' rights generally and except as enforceability
may be lintited by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
F. Incorporation of Representations and Warranties From Credit
Documents. The representations and warranties contained in the Credit Documents
are and will be true, correct and complete in all material respects on and as of the
Amendment Effective Date to the same extent as though made on and as of that date,
except to the extent such representations and warranties specifically relate to an
earlier date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
G. Absence of Default. No event has occurred and is continuing
or Will result from the consummation of the transactions contemplated by this
6
Amendment that would constitute an Event of Default or a Default.
SECTIONV. ACKNOWLEDGEMENT AND CONSENT
Each Guarantor hereby consents to the tenns of this Amendment and further
hereby con:finns and agrees that, notwithstanding the effectiveness of this
Amendment, the obligations of such Guarantor under each of the Credit Documents
to which such Guarantor is a party shall not be impaired and each of the Credit
Documents to which such Guarantor is a party are, and shall continue to be, ifi full
force and effect and are hereby confinned and ratified in all respects.
Each Guarantor hereby acknowledges and agrees that (i) notwithstanding the
conditions to effectiveness set forth in this Amendment, such Guarantor is not
required by the tenns of the Credit Agreement or any other Credit Document to
consent to the amendments to the Credit Agreement effected pursuant to this
Amendment and (ii) nothing in the Credit Agreement, this Amendment or any other
Credit Document shall be d'eemed to require the consent of such Guarantor to any
future amendments to the Credit Agreement.
SECTION VI. MISCELLANEOUS
A. Binding Effect. This Amendment shall be binding upon the
parties hereto and their respective successors and assigns (including the Reorganized
Debtors) and shall inure to the benefit of the parties hereto and the successors and
assigns of Lenders. No Credit Party's rights or obligations hereunder or any interest
therein may be assigned or delegated by any Credit Party without the prior written
consent of all Lenders.
B. Severability. In case any provision in or obligation hereunder
shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be affected or impaired
thereby.
C. Effect on Credit Agreement. Except as expressly set forth
herein, Lenders agree to no amendment and grant no waiver or consent with respect
to the Credit Agreement or any other Credit Document, and the Credit Agreement and
the other Credit Documents remain in full force and effect and are hereby ratified and
confirmed. Lenders' agreeing to the amendments and waivers contained herein do
not and shall not create (nor shall any Credit Party rely upon the existence of or claim
or assert that there exists) any obligation of Lenders to consider or to agree to any
further amendments or waivers to any Credit Document. In the event that Lenders
subsequently agree to consider any further amendment or waiver to any Credit
Document, neither the amendments and waivers contained herein nor any other
7
conduct of Lenders shall be of any force or effect on Lenders' consideration or
decision with respect to any such amendment or waiver, and Lenders shall have no
further obligation whatsoever to consider or to agree to any such amendment or
waiver. Lenders expressly reserve the right to require strict compliance with the
terms of the Credit Agreement and the other Credit Documents in all respects. The
amendments and waivers agreed to herein shall not constitute a course of dealing at
variance with the Credit Agreement so as to require further notice by Lenders to
require strict compliance with the terms of the Credit Agreement and the other Credit
Documents in the future. The parties hereto acknowledge and agree that this
Amendment shall be deemed to be a Credit Document. On and after the Amendment
Effective Date, (i) each reference in the Credit Agreement to "this Agreement",

1
'hereundcr", ''hereof', ('herein" or words of like import refening to the Credit
Agreement, and each reference in the other Credit Documents to the "Credit
Agreement", "thereunder", "thereof', '"therein" or words of 'like import referring to
the Credit Agreement shall mean and be a reference to the Amended Credit
Agreement and (ii) each reference in the Pledge and Security _Agreement to "this
Agreement", "hereof', "herein" or words of like import refening to the
Pledge and Security Agreement, and each reference in the other Credit Documents to
the "-Pledge and Security Agreement'', <thereunder", "thereof', "therein" or words of
like import referring to the Pledge and Security Agreement shall mean and be a
reference to the Amended Pledge and Security Agreement.
D. Fees and Expenses. The Credit Parties acknowledge that all costs,
fees and expenses as described in Section 10.2 and Section 10.3 of the Credit
Agreement incurred by the Administrative Agent and the Collateral Agent or their
respective counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of the Borrowers.
E. Headings. Section headings herein are included herein for
convenience of reference only and shall not constitute a part hereof for any other pur-
pose or be given any substantive effect.
F. APPLICABLE LAW. THIS AMENDMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF
(OTHER THAN SECTION 5-1401 and 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
G. Counterparts. This Amendment may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the same
instrument. As set forth herein, this Amendment shall become effective upon the
execution of a counterpart hereof by each of the parties hereto and receipt by
8
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
[The remainder of this page is intentionally left blank.]
9
IN \\fiTNESS \"\'HEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective officers thereunto duly authorized a<> Of the date first
writien above.
BORROWERS: ALLlED HOLDINGS, INC.
By:
Thomas H. Kini
Executive Vice President
and Chief Financial Officer
ALLlED SYSTEMS, LTD. (L.P .)
By:
By:
Allied Automotive Group, Inc.,
its Managing General Partner
Thomas H. King
Executive Vice President
and Assistant Treasurer
ACKNOWLEDGED AND AGREED:
ACE OPERATIONS, LLC
AXIS NETHERLANDS, LLC
By:
By:
AXlS Group, Inc.,
its Sole Member and Manager
Thomas H. King
Executive Vice President
and Assistant Treasurer
]Sign:llurc J ' < ~ g e - Limited Wai\'Cr and Amendment No.1 to First l..ien Credit Agreement!
AH INDUSTRIES INC.
ALLIED AUTOMOTIVE GROUP, INC.
ALLIED FREIGHT BROKER LLC
ALLIED SYSTEMS (CANADA) COMPANY
AXIS CANADA COMPANY
AXIS GROUP, INC.
COMMERCIAL CARRIERS, INC.
CORD IN TRANSPORT LLC
C T SERVICES, INC.
F.J. BOUTELL DRIVEA WAY LLC
GACS INCORPORATED
QAT, INC.
RMXLLC
TERMINAL SERVICES LLC
TRANSPORT SUPPORT LLC
By:
Thomas H. King---
Executive Vice President and
Assistant Treasurer
AA1S ARETA, LLC
LOGISTIC SYSTEMS, LLC
LOGISTIC T)':CHNOLOGY, LLC
By; AX International Limit_ed,
its Sole Member and Manager
,;-!(
By: ..,__ t I ' i
Thomas H. King
Executive Vice President
and Assisl<illt Treasurer
/Signature Limited Wai;cr and Amendment No. I to First Lien Credit Agrl!emenlj
ADMINISTRATIVE AGENT,
COLLATERAL AGENT AND A
LENDER:
(Signature Pqe- Untlted W a i v ~ r and Amendment No. 1 to First Lie Credit AgreemeaJ}
AS A LENDER:
By: - - - f : _ ~ ~ , - - - - / L _ _ _ -
Name.
Title.:
[First Lte11 Limited Waiver and Amendment]
EXHIBITC
EXECUTION
AMENDMENT NO.2 TO CREDIT AGREEMENT
This AMENDMENT NO. 2 TO CREDIT AGREEMENT dated as of June 12, 2007 (this
"Amendment"), to the Amended and Restated First Lien Secured Super-Priority Debtor In Possession
and Exit Credit and Guaranty Agreement, dated as of May 15, 2007 (as amended by that certain
Limited Waiver and Amendment No. 1 to Credit Agreement and Pledge and Security Agreement dated
as of May 29, 2007, the "Credit Agreement"), by and among ALLIED SYSTEMS HOLDINGS,
INC., a Delaware Corporation (as successor-by-merger to Allied Holdings, Inc.) ("Holdings"),
ALLIED SYSTEMS, LTD. (L.P.), a Georgia limited partnership ("Systems" and, together with
Holdings, the "Borrowers") and CERTAIN SUBSIDIARIES OF HOLDINGS, the Lenders party
hereto from time to time, GOLDMAN SACHS CREDIT PARTNERS L.P., as Lead Arranger and as
Syndication Agent and THE CIT GROUP/BUSINESS CREDIT, INC. as Administrative Agent
(together with its permitted successors in such capacity, "Administrative Agent") and as Collateral
Agent Capitalized tenns used herein not otherwise defined herein or otherwise amended hereby shall
have the meanings ascribed thereto in the Credit Agreement).
RECITALS:
WHEREAS, pursuant to Section 5.l(c) of the Credit Agreement, the auditors' report
accompanying the audited consolidated financial statements of Holdings and its Subsidiaries must be,
among other things, unqualified as to going concern (the "Going Concern Requirement''),
WHEREAS, pursuant to the terms of Section 5.1(c), the Going Concern Requirement
applies, among other things, to the Fiscal Year ending December 31, 2006 (the "2006 Fiscal Year")
even though the Cases were pending in the Bankruptcy Court during the entire 2006 Fiscal Year;
WHEREAS, Borrowers have requested that pursuant tci the last sentence of Section lO.S(d)
of the Credit Agreement, the Administrative Agent correct the foregoing defect in the Credit
Agreement by amending the Credit Agreement so that the Going Concern Requirement does not apply
to the audited consolidated financial statements for the 2006 Fiscal Year; and
WHEREAS, Administrative Agent has agreed to amend Section S.l(c) of the Credit
Agreement in the manner, and subject to the terms and conditions, provided for herein.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and
covenants herein contained, the parties hereto agree as follows:
SECTION I. AMENDMENT. Subject to the terms and conditions set forth herein, and in
reliance on the representations and warrants of the Credit Parties set forth herein, pursuant to the last
sentence of Section 1 0.5( d) of the Credit Agreement, Section 5.1 (c) of the Credit Agreement is hereby
amended by deleting clause (C) of such section in its entirety and inserting the following in lieu
thereof:
2
(C) with respect to such audited consolidated financial
statements a report thereon of KPMG LLP or other
independent certified public accountants of recognized
national standing selected by Holdings, and reasonably
satisfactory to Administrative Agent (which report shall be
unqualified as to scope of audit and, for any such financial
statements for a Fiscal Year ending after the Exit Facilities
Conversion Date, unqualified as to going concern), and shall
state that such consolidated financial statements fairly present,
in all material respects, the consolidated financial position of
Holdings and its Subsidiaries as at the dates indicated and the
results of their operations and their cash flows for the periods
indicated in conformity with GAAP applied on a basis
consistent with prior years (except as otherwise disclosed in
such financial statements) and that the examination by such
accountants in connection with such consolidated financial
statements has been made in accordance with generally
accepted auditing standards) together, in the case of the
financial statements for any Fiscal Year ending after the Exit
Facilities Conversion Date, with a written statement by such
independent certified public accountants stating (1) that their
audit examination has included a review of the terms of
Section 6. 7 of this Agreement and the related definitions in so
far as they relate to accounting or auditing matters and (2)
whether, in connection therewith. any condition or event that
constitutes a Default or an Event of Default under Section 6.7
has come to their attention and, if such a condition or event
has come to their attention, specifying the nature and period of
existence thereof;
SECTION II. CONDIDONS PRECEDENT TO EFFECTIVENESS
The effectiveness of the amendment set forth in this Amendment is subject to the
satisfaction, or waiver, of the following conditions on or before the date hereof (the "Amendment
Effective Date"):
(a) Borrowers, the other Credit Parties and the Administrative Agent shall have
indicated their consent by the execution and delivery of the signature pages hereof to the
Administrative Agent.
(b) The Administrative Agent shall have received an amendment to the Second
Lien Credit Agreement substantially in the form of this Amendment and duly executed and delivered
by the actministrative agent thereunder, which amendment shall be in full force and effect or shall
become effective concurrently with this Amendment.
SECTION III. REPRESENTATIONS AND WARRANTIES
A. Corporate Power and Authority. Each Credit Party has all requisite corporate
power and authority to enter into this Amendment and to carry out the transactions contemplated by,
and pe.oform its obligations under, the Credit Agreement, as amended by this Amendment (the
"Amended Credit Agreement").
B. Authorization of Amendments. The execution and delivery of this
Amendment have been duly authorized by all necessary corporate, limited liability company or
partnership (as applicable) action on the part of each Credit Party.
C. No Conllict. The execution and delivery by each Credit Party of this
Amendment and the performance by each Credit Party of the Amended Credit Agreement do not and
will not (i) violate any provision of any law or any governmental rule or regulation applicable to any
Credit Party, the certificate or articles of incorporation oi bylaws (or other organizational documents)
of any Credit Party or any order, judgment or decree of any court or other agency of government
binding on any Credit Party, (ii) conflict with, result in a breach of or constitute (with due notice or
3
lapse of time or both) a default under any material indenture, mortgage, deed to secure debt, deed of
trust, lease, agreement or other instrument to which any Credit Party is a party or by which any Credit
Party or any of its property is bound (any of the foregoing, a "Contractual Obligation"), (iii) result in
or require the creation or imposition of any Lien upon any of the prOperties or assets of a Credit Party
other than those in favor of the Collateral Agent, on behalf of itself and the Secured Parties, pursuant to
the Credit Documents or those in favor of the Second Lien Collateral Agent on a second prioritY basis
pursuant to the Second Lien Credit Documents, or (iv) require any approval of stockholders or any
approval or consent of any Person under any Contractual Obligation of any Credit Party other than
those that have been made or obtained.
D. Governmental Consents. No action, consent or approval of, registration or
filing with or any other action by any Governmental Authority is required in connection wi1h the
execution and delivery by each Credit Party of this Amendment or the performance by the C,:redit
Parties of the Amended Credit Agreement.
E. Binding Obligation. This Amendment has been duly executed and deliveted by
each Credit Party and this Amendment and the Amended Credit Agreement constitute the legal, valid
and binding obligation of each Credit Party enforceable against each Credit Party in accordance! with
its terms, except as enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting creditors' rights generally and except as enforceability
may be limited by general principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
F. Incorporation of Representations and Warranties From Credit Documents.
The representations and warranties contained in the Credit Documents are and will be true, correct and
complete in all material respects on and as of the Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
G. Absence of Default. After giving effect to the amendment set forth in Section
I, no event has occurred and is continuing or will result from the consummation of the transactions
contemplated by this Amendment that would constitute an Event of Default or a Default
H. Exit Facilities Conversion Date. The Credit Parties and the Administrative
Agent hereby acknowledge and agree that the Exit Facilities Conversion Date occurred on May 29,
2007.
SECTION IV. ACKNOWLEDGEMENT AND CONSENT
Each Guarantor hereby consents to the terms of this Amendment and further hereby confirms
and agrees that, notwithstanding the effectiveness of this Amendment, the obligations of ~ u c h
Guarantor under each of the Credit Documents to which such Guarantor is a party shall not be
impaired and each of the Credit Documelits to which such Guarantor is a party are, and shall continue
to be, in full force and effect and are hereby confirmed and ratified in all respects.
1
Each Guarantor hereby acknowledges and agrees that (i) notwithstanding the conditions to
effectiveness set forth in this Amendment, such Guarantor is not required by the terms of the Cn:dit
Agreement or any other Credit Document to consent to the amendment to the Credit Agreement
effected pursuant to this Amendment and (ii) nothing in the Credit Agreement, this Amendment or any
4
other Credit Document shall be deemed to require the consent of such Guarantor to any future
amendments to the Credit Agreement.
SECTIONV. MISCELLANEOUS
A. Binding Effect. This Amendment shall be binding upon the parties hereto and
their respective successors and assigns and shall inure to the benefit of the parties hereto and the
successors and assigns of Lenders.
B. Severability. In case any provision in or obligation hereunder shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any
way be affected or impaired thereby.
C. Effect on Credit Agreement. Except as expressly set forth herein, the
Administrative Agent agrees to no amendment with respect to the Credit Agreement or any other
Credit Document, and the Credit Agreement and the other Credit Documents remain in full force in
accordance with their respective terms. The Administrative Agent's agreeing to the amendment
contained herein does not and shall not create (nor shall any Credit Party rely upon the existence of or
claim or assert that there exists) any obligation of the Administrative Agent or any Lender to consider
or to agree to any further amendment to any Credit Document. In the event that the Administrative
Agent or Lenders subsequently agree to consider any further amendment to any Credit Document,
neither the amendment contained herein nor any other conduct of the Administrative Agent shall be of
any force or effect on the Administrative Agents' or Lenders' consideration or decision with respect to
any such amendment, and the Administrative Agent and Lenders shall have no further obligation
whatsoever to consider or to agree to any such amendment. The Administrative Agent, on behalf of
the Lenders, expressly reserves the right to require strict compliance with the terms of the Credit
Agreement and the other Credit Documents in all respects. The amendment agreed to herein shall not
constitute a course of dealing at variance with the Credit Agreement so as to require further notice by
Administrative Agent or the Lenders to require strict compliance with the terms of the Credit
Agreement and the other Credit Documents in the future. The parties hereto acknowledge and agree
that this Amendment shall be deemed to be a Credit Document. On and after the Amendment
Effective Date, each reference in the Credit Agreement to ''this Agreement'', "hereunder", "hereof',
"herein'' or words of like import referring to the Credit Agreement, and each reference in the other
Credit Documents to the "Credit Agreement'', "thereunder", "thereof', "therein" or words of like
import referring to the Credit Agreement shall mean and be a reference to the Amended Credit
Agreement
D. Fees and Expenses. The Credit Parties acknowledge that all costs, fees and
expenses as described in Section 10.2 and Section 1 0.3 of the Credit Agreement incurred by the
Administrative Agent and the Collateral Agent or their respective counsel with respect to this
Amendment and the documents and transactions contemplated hereby shall be for the account of the
Borrowers.
E. Headings. Section headings herein are included herein for convenience of
reference only and shall not constitute a part hereof for any other purpose or be given any substantive
effect.
F. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, TilE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
5
THEREOF (OTHER THAN SECTION 5--1401 AND 5--1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).
G. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument As set forth herein, this
Amendment shall become effective upon the execution of a counterpart hereof by each of the parties
hereto and receipt by Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
[The remainder of this page is intentionally left blank.]
6
06/11/07 14:18 FAX 404 370 4206
ALLIED HOLDINGS
141002
EXECUTION
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered by their respective officers thereunto duly authorized as of t.1e date first written above.
BORROWERS: ALLIED SYSTEMS HOLDINGS, INC.
By:
Thomas H. King
Executive Vice President
and Chief Financial Officer
ALLIED SYSTEMS, LTD. (L.P.)
By: Allied Automotive Group, Inc.,
its Managing General Partner
By: (j?:,.Jvj
Thomas H. King
Executive Vice President
and Assistant Treasurer
ACKNOWLEDGED AND AGREED:
ACE OPERATIONS, LLC
AXIS NETHERLANDS, LLC
By:
By:
AXIS Group,
its Sole Member and Manager
Thomas H. King
Executive Vice President
and Assistant Treasurer
Inc.,
06/11/07 14:18 FAX 404 370 4206
ALLIED HOLDINGS
AH INDUSTRIES INC.
ALLIED AUTOMOTIVE GROUP, INC.
ALLIED FREIGHT BROKER LLC
ALLIED SYSTEMS (CANADA) COMPANY
AXIS CANADA COMPANY
AXIS GROUP, INC.
COMMERCIAL CARRIERS, INC.
CORDIN TRANSPORT LLC
C T SERVICES, INC.
F.J. BOUTELLDRIVEAWAY LLC
GACSINCORPORATED
QAT, INC.
RMXLLC
TERMINAL SERVICES LLC
TRANSPORT SUPPORT LLC
By:
Thomas H. King
Executive Vice President and
Assistant Treasurer
AXIS ARETA, LLC
LOGISTIC SYSTEMS, LLC
LOGISTIC TECHNOLOGY, LLC
By: AX International
its Sole Member and Manager
By: -..Oii;A/6
Executive Vice President
and Assistant Treasurer
@003
Limited,
ADMINISTRATIVE AGENT:
64534.000030 NEW_ YORK 250808v4
THE CIT GROUP/BUSINESS CREDIT, INC.,
1"\
s,. = ~
Name: ~ + k + " '
Title; \If>
AmeiUimenl No. 2 Signature Page
EXHIBITD
EXECUTION VERSION
AMENDMENT NO.3 TO CREDIT AGREEMENT AND CONSENT
This AMENDMENT NO. 3 TO CREDIT AGREEMENT AND CONSENT dated as
of Aprill7, 2008 (this "Amendment"), to the Amended and Restated First Lien Secured Super-
Priority Debtor In Possession and Exit Credit and Guaranty Agreement, dated as ofMay 15,
2007 (as amended by that certain Limited Waiver and Amendment No. 1 to Credit Agreement
and Pledge and Security Agreement, dated as of May 29, 2007, and as further amended by that
certain Amendment No. 2 to Credit Agreement, dated as of June 12, 2007, the "Credit
Agreement"), by and among ALLIED HOLDINGS, INC. (formerly known as Allied Systems
Holdings, Inc.), a Delaware Corporation ("Holdings"), ALLIED SYSTEMS, LTD. (L.P.), a
Georgia limited partnership ("Systems" and, together with Holdings, the "Borrowers") and
CERTAIN SUBSIDIARIES OF HOLDINGS, the Lenders party hereto from time to time,
GOLDMAN SACHS CREDIT PARTNERS L.P., as Lead Arranger and as Syndication Agent
and THE CIT GROUP/BUSINESS CREDIT, INC. as Administrative Agent (together with its
permitted successors in such capacity, "Administrative Agent") and as Collateral Agent.
RECITALS:
WHEREAS, the Credit Agreement currently prohibits Borrowers and their respective
Affiliates from becoming Lenders under the Credit Agreement;
WHEREAS, Borrowers have requested that Requisite Lenders agree to amend the Credit
Agreement to permit Sponsor and its Affiliates (other than Borrowers and their Subsidiaries) to
become Lenders under the Credit Agreement by purchasing and assuming the rights and
obligations of one or more Lenders under the Credit Agreement and to contribute such rights and
obligations to Borrowers in the form of capital contributions;
WHEREAS, Borrowers have also requested that Requisite Lenders agree to consent to
an amendment of the Second Lien Credit Agreement that permits Sponsor and its Affiliates
(other than Borrowers and their Subsidiaries) to contribute or convert previously acquired
Second Lien Term Loans into Equity Interests of Holdings;
WHEREAS, Administrative Agent and Requisite Lenders have agreed to amend the
Credit Agreement to permit Sponsor and its Affiliates (other than Borrowers and their
Subsidiaries) to become Lenders under the Credit Agreement and to contribute such rights and
obligations to Borrowers, in the manner, and subject to the terms and conditions, provided for
herein; and
WHEREAS, Administrative Agent and Requisite Lenders have agreed to consent to an
amendment ofthe Second Lien Credit Agreement that permits Sponsor and its Affiliates (other
than Borrowers and their Subsidiaries) to contribute or convert previously acquired Second Lien
Term Loans into Equity Interests (other than Disqualified Equity Interests) of Holdings, in the
manner, and subject to the terms and conditions, provided for herein.
NOW, THEREFORE, in consideration ofthe premises and the agreements, provisions
and covenants herein contained, the parties hereto agree as follows:
SECTION I. DEFINITIONS
1.1 All capitalized terms used herein (including in the introductory paragraph and
Recitals set forth above) and not otherwise defined shall have the meanings assigned to such
terms in the Credit Agreement.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT
2.1 Amendments to Section 1: Definitions.
(a) Section 1.1 of the Credit Agreement is hereby amended by adding
thereto the following definition of"lnsolvency or Liquidation Proceeding" and "Restricted
Sponsor Affiliates" in the proper alphabetical order:
" 'Insolvency or Liquidation Proceeding' as defined in the lntercreditor
Agreement."
" 'Restricted Sponsor Affiliates' means Sponsor and its Affiliates (other
than Borrowers or any of their Subsidiaries)."
(b) Section 1.1 ofthe Credit Agreement is hereby further amended by
deleting the definition of"Assignment Agreement" in its entirety and inserting in lieu thereofthe
following:
" 'Assignment Agreement' means an Assignment and Assumption
Agreement substantially in the form of Exhibit E, with such amendments or
modifications as may be approved by Administrative Agent (provided, that the approval
of the Requisite Lenders shall be required to amend or modify any provision of Exhibit E
that relates to Restricted Sponsor Affiliates)."
(c) Section 1.1 ofthe Credit Agreement is hereby further amended by
deleting the definition of"Eligible Assignee" in its entirety and inserting in lieu thereof the
following:
" 'Eligible Assignee' means (i) any Lender, any Affiliate of any Lender
and any Related Fund (any two or more Related Funds being treated as a single Eligible
Assignee for ail purposes hereof), and (ii) any commercial bank, insurance company,
investment or mutual fund or other entity that is an "accredited investor" (as defined in
Regulation D under the Securities Act) and which extends credit or buys loans; provided,
(x) neither Borrowers nor any of their Subsidiaries shall be an Eligible Assignee and (y)
no Restricted Sponsor Affiliate may be an Eligible Assignee with respect to a sale,
assignment or transfer of Commitments, Revolving Loans or LC Deposits."
(d) Section 1.1 of lhe Credit Agreement is hereby further amended by
deleting the second parenthetical in clause (v) ofthe definition of"Restricted Junior Payment" in
its entirety and inserting in lieu thereof the following:
2
"(other than the conversion of any of such Indebtedness to common or
other Equity Interests of Holdings other than Disqualified Equity Interests)"
(e) Section 1.1 of the Credit Agreement is hereby further amended by
deleting the definition of"Term Loan Exposure" in its entirety and inserting in lieu thereof the
following:
""Term Loan Exposure" means, with respect to any Lender, as of any
date of determination, the outstanding principal amount of the Term Loans of such
Lender plus during the Term Loan Commitment Period, the unfunded Term Loan
Commitment of such Lender; provided, at any time prior to the making of the initial
Term Loans, the Term Loan Exposure of any Lender shall be equal to such Lender's
Term Loan Commitment; provided further that with respect to any provisions of this
Agreement relating to the voting rights ofLenders (including the right of Lenders to
consent or take any other action with respect to any amendment, modification,
termination or waiver of any provision of this Agreement or the other Credit Documents,
or consent to any departure by any Credit Party therefrom), the aggregate outstanding
principal amount of the Term Loans of all Restricted Sponsor Affiliates shall be
disregarded for purposes of this definition of"Term Loan Exposure"."
2.2 Amendments to Section 2: Loans and Letters of Credit.
(a) Section 2.7 ofthe Credit Agreement is hereby amended by deleting
the parenthetical in the second sentence of clause (b) in its entirety and inserting in lieu thereof
the following:
"(with respect to any entry relating to such Lender's Commitments, Loans
or LC Deposits and any entry relating to any Restricted Sponsor Affiliate's Term Loans)"
(b) Section 2.17 of the Credit Agreement is hereby amended by deleting
the reference to "Section 2.14( e) or Section 2.22" in the first sentence thereof and inserting in
lieu thereof"Section 2.14(e), Section 2.22, Section 10.6(j)(iii) or Section 10.6(k)(i)".
2.3 Amendments to Section 5: Affirmative Covenants.
(a) Section 5.1 ofthe Credit Agreement is hereby amended by inserting
the following at the end of clause (a) thereof:
"and together with such financial statements, a written report certified by
an Authorized Officer of Holdings identifYing (i) the aggregate principal amount of Term
Loans and Second Lien Term Loans acquired by any Restricted Sponsor Affiliate during
such month (and with respect to the first month of any Fiscal Quarter, the amount of
Term Loans and Second Lien Term Loans acquired in the last month of the preceding
Fiscal Quarter), together with the date of, and purchase price for, each such acquisition,
and (ii) the aggregate principal amount ofTerm Loans and Second Lien Term Loans held
by any Restricted Sponsor Affiliates as of the last day of such month;"
2.4 Amendments to Section 6: Negative Covenants.
3
(a) Section 6.4 ofthe Credit Agreement is hereby amended by inserting
the following at the end of clause (c) thereof
"or (to the extent also permitted by the Second Lien Credit Agreement)
other Equity Interests (other than Disqualified Equity Interests)"
(b) Section 6.22 ofthe Credit Agreement is hereby amended by
inserting the following at the end of clause (a) thereof:
",except as a result of one or more capital contributions or conversions of
Second Lien Term Loans previously acquired by such Restricted Sponsor Affiliates in
return for Equity Interests of Holdings (other than Disqualified Equity Interests) so long
as such capital contributions and conversions are made on terms substantially similar to
those set forth in Section 10.6(k) ofthis Agreement"
2.5 Amendments to Section 8: Events of Default; Carve-Out Event.
(a) Section 8.1 of the Credit Agreement is hereby amended by deleting
the period at the end of clause (z) thereof and inserting"; or" in lieu thereof and inserting the
fo Bowing new clause ( aa) at the end of Section 8.1:
"(aa) Failure of a Restricted Sponsor Affiliate to perform or comply with
any term or condition contained in Section 1 0.6(j)(ii) or (iii)"
2.6 Amendments to Section 9: Agents.
(a) Section 9.3 of the Credit Agreement is hereby amended by inserting
a new clause (d) at the end thereof as follows:
"(d) Restricted Sponsor Affiliates. Notwithstanding anything to the
contrary contained in this Agreement, Administrative Agent may in its discretion and,
upon the direction of the Requisite Lenders, shall use reasonable efforts to (i) exclude
Restricted Sponsor Affiliates from receiving from Administrative Agent any document,
instrument or other written communication that the Restricted Sponsor Affiliates would
otherwise have been entitled to receive under the terms of this Agreement or under any
other Credit Document in their capacity as Lenders or is generally distributed by
Administrative Agent to all Lenders and (ii) preclude the Restricted Sponsor Affiliates
from participating in conference calls with, and attending meetings of, the Lenders
(including with respect to the exercise of rights and remedies under any Credit
Document). None of Lenders, Agents or any of their respective officers, partners,
directors, employees or agents shall be liable to any Restricted Sponsor Affiliate (in its
capacity as a Lender or otherwise) for any such action taken under this Section 9.3(d)."
2.7 Amendments to Section 10: Miscellaneous.
(a) Section 10.5 ofthe Credit Agreement is hereby amended by
inserting a new clause (e) at the end thereof as follows:
4
"(e) Restricted Sponsor Affiliate Voting Rights. Notwithstanding
anything to the contrary in this Agreement:
(i) Restricted Sponsor Affiliates that become Lenders hereunder
shall have no right under this Agreement or the other Credit Documents, and
hereby waive any such right, to consent or take any other action with respect to
any amendment, modification, termination or waiver of any provision of this
Agreement or the other Credit Documents, or consent to any departure by any
Credit Party therefrom; it being understood and agreed that Restricted Sponsor
Affiliates shall have no voting rights for all purposes under this Agreement
(whether before, during or after an Insolvency or Liquidation Proceeding) and the
other Credit Documents with respect to their Term Loans.
(b) (ii) (w) Restricted Sponsor Affiliates that become Lenders
hereunder shall not in their capacity as Lenders hereunder, and hereby irrevocably
and voluntarily waive in their capacity as Lenders hereunder any right to, make
any election, give any consent, commence any action or file any motion, claim,
obligation, notice or application or take any other action in any Insolvency or
Liquidation Proceeding without the prior written consent of all Lenders other than
Restricted Sponsor Affiliates (the "Non-Affiliate Lenders"), (x) the voting rights
of all Restricted Sponsor Affiliates under the Credit Documents during an
Insolvency or Liquidation Proceeding shall automatically and irrevocably be
assigned to the Non-Affiliate Lenders and the voting rights ofthe Non-Affiliate
Lenders holding Term Loan Exposure shall be automatically ratably increased by
the Term Loan Exposure held or beneficially owned by all Restricted Sponsor
Affiliates, (y) Administrative Agent may vote in any such Insolvency or
Liquidation Proceeding any and all claims of such Restricted Sponsor Affiliates
as Lenders hereunder, and each such Restricted Sponsor Affiliate hereby
irrevocably and voluntarily assigns such rights to Administrative Agent and
appoints Administrative Agent as its agent, and grants to Administrative Agent an
irrevocable power of attorney coupled with an interest, and its proxy, for the
purpose of exercising any and all rights and taking any and all actions available to
such Restricted Sponsor Affiliates as a Lender hereunder in connection with any
case by or against Borrowers or any other Credit Party in any Insolvency or
Liquidation Proceeding, including the right to file and/or prosecute any claims, to
vote to accept or reject a plan and/or to make any election under Section 1111 (b)
of the United States Bankruptcy Code and (z) such Restricted Sponsor Affiliates,
solely in their capacity as Lenders hereunder, shall not challenge the validity or
amount of any claim submitted in such Insolvency or Liquidation Proceeding by
the Non-Affiliate Lenders or the Agents in good faith in such Insolvency or
Liquidation Proceeding or take any other action in their capacity as Lenders
hereunder in such Insolvency or Liquidation Proceeding, which is adverse to the
Agents' and the Non-Affiliate Lenders' enforcement of their respective claims or
receipt of adequate protection (as that term is defined in the United States
Bankruptcy Code).
5
(c) Section 10.6(c) ofthc Credit Agreement is hereby amended by
inserting the following at the end ofthe first sentence of clause (ii) thereof
";provided fbrther, that (x) no Lender may sell, assign, transfer or
otherwise convey any of its rights and obligations under this Agreement (including the
Commitments, the LC Deposits or the Loans) to a Restricted Sponsor Affiliate and no
Restricted Sponsor Affiliate shall acquire any such rights or obligations, in each case if
(A) immediately prior to and after giving effect to such assignment or transfer the
aggregate amount of the Term Loan Exposure held or beneficially owned by all
Restricted Sponsor Affiliates would exceed 25% ofthe aggregate principal amount ofthe
Term Loan Exposure held or beneficially owned by all Lenders (including Restricted
Sponsor Affiliates) or (B) after giving effect to such assignment or transfer, the aggregate
amount ofTerm Loans acquired by all Restricted Sponsor Affiliates since the Closing
Date would exceed $50 million (notwithstanding whether all or any portion of such
acquired Term Loans have been contributed to Borrowers or otherwise disposed of by the
Restricted Sponsor Affiliates) and (y) assignments by or to a Restricted Sponsor Affiliate
shall be further subject to Section 1 0.6U)."
(d) Section 10.6(h) ofthe Credit Agreement is hereby amended by
deleting clause (i) thereof in its entirety and inserting the following in lieu thereof:
"(i) Each Lender shall have the right at any time to sell one or more
participations to any Person (other than Holdings, any of its Subsidiaries or any of its
Affiliates (including, without limitation, Restricted Sponsor Affiliates)) in all or any part
of its Commitments, Loans or in any other Obligation."
(e) Section 10.6 ofthe Credit Agreement is hereby amended by
inserting a new clause (j) as follows:
"(j) Restricted Sponsor Affiliates. The Restricted Sponsor Affiliates,
from time to time, intend to become Lenders and, from time to time, to sell, assign or
transfer all or a portion of their Term Loans and the rights and obligations as Lenders
related thereto under this Agreement to Eligible Assignees. Each Agent and Lender
hereby acknowledges that a Restricted Sponsor Affiliate (i) may be a Lender (provided
such Restricted Sponsor Affiliate otherwise satisfies the criteria ofthe definition of the
term of"Eligible Assignee") and (ii) may sell, assign or transfer all or a portion of its
Term Loans and the rights and obligations as a Lender related thereto under this
Agreement to Eligible Assignees. Each Lender that is a Restricted Sponsor Affiliate,
upon succeeding to an interest in the Term Loans:
( i) represents and warrants as of each applicable Assignment
Effective Date that (x) it is not in possession of any information with respect to
Borrowers, their Affiliates or the Obligations that (A) has not been disclosed by or on
behalf of Borrowers to Lenders generally or otherwise been posted to that portion of the
Platform designated for "private-side" Lenders and (B) could have a Material Adverse
Effect or otherwise be material to a decision by a Person to sell the Term Loans or a
participation interest therein, (y) immediately prior to and after giving effect to such
6
assignment or transfer of Term Loans to such Restricted Sponsor Affiliate, the aggregate
amount of the Term Loan Exposure held or beneficially owned by all Restricted Sponsor
Affiliates does not and will not exceed 25% of the aggregate amount of the Term Loan
Exposure held or beneficially owned by all Lenders (including Restricted Sponsor
Affiliates) and (z) after giving effect to such assignment or transfer of Term Loans to
such Restricted Sponsor Affiliate, the aggregate principal amount of Term Loans
acquired by all Restricted Sponsor Affiliates since the Closing Date would not exceed
$50 million (notwithstanding whether all or any portion of such acquired Term Loans
have been contributed to Borrowers or otherwise disposed of by the Restricted Sponsor
Affiliates on or prior to the applicable Assignment Effective Date);
(ii) agrees that (w) notwithstanding anything in this Agreement to
the contrary other than as provided in Section 1 0.6(k), it shall not sell, assign, contribute,
transfer or otherwise convey all or a portion of its Term Loans or rights and obligations
as a Lender to Borrowers or their Subsidiaries, (x) notwithstanding anything in this
Agreement to the contrary (including, without limitation, Section 5. 7), it shall not attend
or otherwise participate in any conference calls or meetings (A) between Agents and/or
Lenders, on the one hand, and Borrowers or any Affiliate of Borrowers, on the other
hand, and (B) between and among Agents and Lenders (other than Restricted Sponsor
Affiliates) unless consented to by Administrative Agent or Requisite Lenders, (y) it shall
not disclose any information it receives in its capacity as a Lender to Borrowers or to any
Affiliate of Borrowers, and (z) Lenders, Agents and their respective officers, partners,
directors, employees or agents shall not be liable to such Restricted Sponsor Affiliate (in
its capacity as a Lender or otherwise) for any action taken or omitted by any Lender or
Agent under or in connection with any of the Credit Documents;
(iii) agrees further that no later than ten days after the date of such
assignment or transfer of such Term Loans (or, if a Default or Event of Default occurs
during such ten day period, then three Business Days after such Restricted Sponsor
Affiliate has knowledge of the occurrence of such Default or Event of Default but in no
event later than the last day of such ten day period), such Restricted Sponsor Affiliate
shall make a capital contribution to Borrowers of no less than 50% ofthe aggregate
principal amount of such Term Loans in accordance with Section 10.6(k); and
(iv) knowingly and irrevocably waives any and all rights to
exercise any voting rights it would otherwise have as a Lender for all purposes under this
Agreement and the other Credit Documents.
To the fullest extent permitted by applicable law, no Restricted Sponsor Affiliate shall
assert, and each Restricted Sponsor Affiliate immediately and automatically upon
becoming a Lender, hereby irrevocably (i) waives, any claim or cause of action against
any Lender, any Agent and their respective Affiliates, directors, employees, attorneys,
agents or sub-agents (whether or not the claim therefor is based on contract, tort or duty
imposed by any applicable legal requirement or otherwise) arising out of, in connection
with, as a result of, or in any way related to, this Agreement or any Credit Document or
any agreement or instrument contemplated hereby or thereby or referred to herein or
therein, the transactions contemplated hereby or thereby, any Loan or the use of the
7
proceeds thereof or any act or omission or event occurring in connection therewith except
to the extent caused by such Lender's or Agent's gross negligence or willful misconduct
on or after the date such Restricted Sponsor Affiliate becomes a Lender hereunder as
determined by a court of competent jurisdiction by final and non-appealable judgment,
(ii) waives, releases and agrees not to sue upon any such claim or any such cause of
action, whether or not accrued and whether or not known or suspected to exist in its favor
and (iii) waives any claim or cause of action against any Agent or any Lender and their
respective Affiliates, directors, employees, attorneys, agents or sub-agents on any theory
of liability for special, indirect, consequential or punitive damages, arising out of, in
com1ection with, as a result of, or in any way related to this Agreement, or any other
Credit Document or any agreement or instrument contemplated hereby or thereby, any
Loan or the use of proceeds thereof or any act or omission or event occurring in
connection therewith.
Each Restricted Sponsor Affiliate recognizes and acknowledges that a breach by it
of any covenants or agreements contained in this Section 10.6(j) will cause the other
Lenders and Agents to sustain damages for which it would not have an adequate
remedy at law for money damages, and therefore each Restricted Sponsor Affiliate
agrees that in the event of any such breach, each ofthe other Lenders and Agents
shall be entitled to specific performance of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy to which it may
be entitled, at law or in equity."
(f) Section 10.6 ofthe Credit Agreement is hereby amended by
inserting a new clause (k) as follows:
"(k) Contribution ofTerm Loans to Borrowers; Cancellation of Debt.
(i) The Restricted Sponsor Affiliates, from time to time, intend to
make capital contributions of their Term Loans to Borrowers.
(ii) Notwithstanding anything to the contrary herein, a Restricted
Sponsor Affiliate may at any time make a capital contribution of its Term Loans to
Borrowers in exchange for Equity Interests ofHoldings (other than Disqualified Equity
Interests) upon no less than five Business Days' prior written notice to Administrative
Agent and Lenders. Such Restricted Sponsor Affiliate and Borrowers shall promptly
provide all information and data reasonably requested by Administrative Agent in
connection with such capital contribution.
(iii) Immediately upon a Borrower's acquisition of Term Loans
from a Restricted Sponsor Affiliate, (x) such Term Loans and all rights and obligations as
a Lender related thereto shall for all purposes (including under this Agreement, the other
Credit Documents and otherwise) be deemed to be irrevocably prepaid, terminated,
extinguished, cancelled and of no further force and effect and such Borrower shall neither
obtain nor have any rights as a Lender hereunder or under the other Credit Documents by
virtue of such capital contribution and (y) such Borrower shall deliver to Administrative
Agent a written acknowledgement and agreement executed by an Authorized Officer and
8
in form and substance reasonably acceptable to Administrative Agent acknowledging the
irrevocable prepayment, termination, extinguishment and cancellation of such Term
Loans and confirming that such Borrower has no rights as a Lender under the Credit
Documents or otherwise.
(iv) As soon as practicable after a Borrower's acquisition of Term
Loans from a Restricted Sponsor Affiliate in accordance with this Section 1 0.6(k), such
Borrower shall take all actions necessary to cause such Term Loans to be extinguished or
otherwise cancelled in its books and records in accordance with GAAP.
(v) To the extent permitted by applicable law, no Credit Party
shall assert, and each Credit Party hereby irrevocably waives, any claim or cause of
action against any Lender, any Agent and their respective Affiliates, directors,
employees, attorneys, agents or sub-agents (whether or not the claim therefor is based on
contract, tort or duty imposed by any applicable legal requirement or otherwise) arising
out of, in connection with, as a result of, or in any way related to, any capital contribution
of Term Loans made by a Restricted Sponsor Affiliate to such Borrower or any act or
omission or event occurring in connection therewith, and each Credit Party hereby
irrevocably waives, releases and agrees not to sue upon any such claim or any such cause
of action, whether or not accrued and whether or not known or suspected to exist in its
favor.."
2.8 Amendments to Exhibits.
(a) Exhibit E to the Credit Agreement (Assignment and Assumption
Agreement) is hereby amended by deleting the heading of Section 1 in its entirety and inserting
in lieu thereofthe following:
"1. Representations and Warranties; Covenants."
(b) Exhibit E to the Credit Agreement (Assignment and Assumption
Agreement) is hereby further amended by deleting Section 1.1 ofthe Standard Terms and
Conditions for Assignment and Assumption Agreement in its entirety and inserting in lieu
thereofthe following:
"1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and
clear of any lien, encumbrance or other adverse claim[,)[ and] (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
to consummate the transactions contemplated hereby [and it is not in possession of any
information with respect to Borrowers, their Affiliates or the Obligations that (A) has not
been disclosed by or on behalf of Borrowers to the Lenders generally or otherwise been
posted to that portion of the Platform designated for "private-side" Lenders and (B) could
have a Material Adverse Effect or otherwise be material to a decision by a Person to
purchase the Loans or a participation interest therein]
1
; (b) assumes no responsibility with
To be added only if Assignor is a Restricted Sponsor Affiliate.
9
respect to (i) any statements, warranties or representations made in or in connection with
any Credit Document, (1i) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument or document
delivered pursuant thereto, other than this Assignment (herein collectively the "Credit
Documents"), or any collateral thereunder, (iii) the financial condition of the Borrower,
any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Credit
Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries
or Affiliates or any other Person of any of their respective obligations under any Credit
Document[; and (c) agrees that ifthe Assignee sells and assigns all or a portion ofthe
Assigned Interest to any Person, the Assignee may, in its sole discretion, disclose to any
such Person that the Assignee acquired the Assigned Interest from the Assignor.]
2
"
(c) Exhibit E to the Credit Agreement (Assignment and Assumption
Agreement) is hereby further amended by deleting Section 1.2 ofthe Standard Terms and
Conditions for Assignment and Assumption Agreement in its entirety and inserting in lieu
thereofthe following:
"1.2 Assignee. (I) The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and deliver
this Assignment and to consummate the transactions contemplated hereby and to become
a Lender under the Credit Agreement, (ii) it meets all requirements of an Eligible
Assignee under the Credit Agreement, (iii) from and after the Effective Date, it shall be
bound by the provisions of the Credit Agreement and, to the extent of the Assigned
Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of
the Credit Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this Assignment and
to purchase the Assigned Interest on the basis of which it has made such analysis and
decision[,] [ and] (v) if it is a Non-US Lender, attached to the Assignment is any
documentation required to be delivered by it pursuant to the terms of the Credit
Agreement, duly completed and executed by the Assignee[, (vi) it is not in possession of
any information with respect to Borrowers, their Affiliates or the Obligations that (A) has
not been disclosed by or on behalf of Borrowers to the Lenders generally or otherwise
been posted to that portion of the Platform designated for "private-side" Lenders and (B)
could have a Material Adverse Effect or otherwise be material to a decision by a Person
to sell the Loans or a participation interest therein, (vii) immediately prior to and after
giving effect to the assignment of Term Loans contemplated by this Assignment, the
aggregate amount of the Term Loan Exposure held or beneficially owned by all
Restricted Sponsor Affiliates does not and will not exceed 25% of the aggregate amount
of Term Loan Exposure held or beneficially owned by all Lenders (including Restricted
Sponsor Affiliates) and (viii) after giving effect to such assignment or transfer of Term
Loans to the Restricted Sponsor Affiliate, the aggregate principal amount of Term Loans
acquired by all Restricted Sponsor Affiliates since the Closing Date would not exceed
$50 million (notwithstanding whether all or any portion of such acquired Term Loans
To be added only if Assignor is a Restricted Sponsor Affiliate.
10
4
have been contributed to Borrowers or otherwise disposed of by the Restricted Sponsor
Affiliates on or prior to the Effective Date)]
3
; [and] (b) agrees that (i) it will,
independently and without reliance on the Administrative Agent, the Assignor or any
other Lender, and based on such documents and information as it shall deem appropriate
at that time, continue to make its own credit decisions in taking or not taking action under
the Credit Documents, [and] (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Documents are required to be performed by
it as a Lender[.][, (iii) (w) notwithstanding anything in the Credit Agreement to the
contrary other than Section 10.6(k) ofthe Credit Agreement, it shall not sell, assign,
contribute, transfer or otherwise convey all or a portion of its rights and obligations as a
Lender to Borrowers or their Subsidiaries, (x) notwithstanding anything in the Credit
Agreement to the contrary (including, without limitation, Section 5.7 ofthe Credit
Agreement), it shall not attend or otherwise participate in any conference calls or
meetings between (A) Agents and/or Lenders, on the one hand, and Borrowers or any
Affiliate of Borrowers, on the other hand, or (B) and among Agents and/or Lenders, in
each case, unless consented to by Administrative Agent or Requisite Lenders, (y) it shall
not disclose any information it receives in its capacity as a Lender to Borrowers or to any
Affiliate of Borrowers, and (z) Lenders, Agents and their respective officers, partners,
directors, employees or agents shall not be liable to such Restricted Sponsor Affiliate (in
its capacity as a Lender or otherwise) for any action taken or omitted by any Lender or
Agent under or in connection with any ofthe Credit Documents; and (c) acknowledges
and agrees that prior to the Effective Date, the Assignor may have disclosed to any
Person that sold and assigned all or any portion of the Assigned Interest to the Assignor
that the Assignor intended to sell all or a portion of the Assigned Interest to the
Assignee. ]
4
[(II) The Assignee further represents and warrants that after giving effect
to such assignment or transfer of Term Loans to the Restricted Sponsor Affiliate, the
aggregate principal amount of Term Loans acquired by all Restricted Sponsor Affiliates
since the Closing Date is$[ ]].
5
"
To be added only if Assignee is a Restricted Sponsor Affiliate.
To be added only if Assignee is a Restricted Sponsor Affiliate.
To be added only if Assignee is a Restricted Sponsor Affiliate.
11
SECTION 3. CONSENT
Subject to the satisfaction ofthe conditions precedent set forth in Section 4 hereof,
Administrative Agent and Requisite Lenders hereby (i) consent to an amendment to the Second
Lien Credit Agreement that permits Restricted Sponsor Affiliates to make one or more capital
contributions or conversions of Second Lien Term Loans previously acquired by such Restricted
Sponsor Affiliates in return for Equity Interests of Holdings (other than Disqualified Equity
Interests) so long as such capital contributions and conversions are made pursuant to terms
substantially similar in form and substance to those set forth in Section 10.6(k) ofthe Credit
Agreement (as amended by this Amendment) and (ii) instruct Collateral Agent to consent to such
an amendment to the Second Lien Credit Agreement in accordance with Section 5.3(b) ofthe
Intercreditor Agreement. Borrowers agree to provide Administrative Agent with a copy of any
such amendment to the Second Lien Credit Agreement no later than five Business Days prior to
the execution and delivery of such amendment to the Second Lien Credit Agreement by
Borrowers; it being understood and agreed that the failure to provide such notice to
Administrative Agent shall result in an immediate Event of Default.
SECTION 4. CONDITIONS PRECEDENT TO EFFECTIVENESS
The effectiveness of the amendments and the consent set forth in this Amendment are
subject to the satisfaction, or waiver, of the following conditions on or before the date hereof(the
"Amendment Effective Date"):
(a) Borrowers, the other Credit Parties, Requisite Lenders and
Administrative Agent shall have indicated their consent by the execution and delivery of the
signature pages hereof to the Administrative Agent;
(b) Administrative Agent shall have received a certificate from an
officer of Holdings stating that as ofthe Amendment Effective Date (i) the representations and
warranties contained in Section 4 herein and in the other Credit Documents are true, correct and
complete in all material respects on and as of the Amendment Effective Date to the same extent
as though made on and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and warranties are true,
correct and complete in all material respects on and as of such earlier date and (ii) no event has
occurred and is continuing or will result from the consummation of the transactions
contemplated by this Amendment that would constitute an Event of Default or a Default; and
(c) Borrowers shall have paid Agents and Arranger for all reasonable
out-of-pocket expenses incurred by them on or prior to the date hereof in connection with the
negotiation and preparation ofthis Amendment, including the reasonable fees, charges and
disbursements of counsel for the Agents and Arranger.
SECTION 5. REPRESENTATIONS AND WARRANTIES
5.1 Corporate Power and Authority. Each Credit Party has all requisite corporate,
limited liability company or partnership (as applicable) power and authority to enter into this
Amendment and to carry out the transactions contemplated by, and perform its obligations under,
the Credit Agreement, as amended by this Amendment (the "Amended Credit Agreement").
12
5.2 Authorization of Amendments. The execution and delivery of this Amendment
have been duly authorized by all necessary corporate, limited liability company or partnership
(as applicable) action on the part of each Credit Party.
5.3 No Conflict. The execution and delivery by each Credit Party of this Amendment
and the performance by each Credit Party of the Amended Credit Agreement do not and will not
(i) violate any provision of any law or any governmental rule or regulation applicable to any
Credit Party, the certificate or articles of incorporation or bylaws (or other organizational
documents) of any Credit Party or any order, judgment or decree of any court or other agency of
government binding on any Credit Party, (ii) conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any material indenture, mortgage, deed
to secure debt, deed oftrust, lease, agreement or other instrument to which any Credit Party is a
party or by which any Credit Party or any of its property is bound (any ofthe foregoing, a
"Contractual Obligation"), (iii) result in or require the creation or imposition of any Lien upon
any of the properties or assets of a Credit Party other than those in favor of the Collateral Agent,
on behalf of itself and the Secured Parties, pursuant to the Credit Documents or those in favor of
the Second Lien Collateral Agent on a second priority basis pursuant to the Second Lien Credit
Documents, or (iv) require any approval of stockholders or any approval or consent of any
Person under any Contractual Obligation of any Credit Party other than those that have been
made or obtained.
5.4 Governmental Consents. No action, consent or approval of, registration or filing
with or any other action by any Governmental Authority is required in connection with the
execution and delivery by each Credit Party ofthis Amendment or the performance by the Credit
Parties ofthe Amended Credit Agreement.
5.5 Binding Obligation. This Amendment has been duly executed and delivered by
each Credit Party and this Amendment and the Amended Credit Agreement constitute the legal,
valid and binding obligation of each Credit Party enforceable against each Credit Party in
accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting creditors' rights generally and except
as enforceability may be limited by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
5.6 Incorporation of Representations and Warranties From Credit Documents. The
representations and warranties contained in the Credit Documents are and will be true, correct
and complete in all material respects on and as of the Amendment Effective Date to the same
extent as though made on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were true, correct and
complete in all material respects on and as of such earlier date.
5.7 Absence of Default. As ofthe date ofthis Amendment and after giving effect to
the amendment set forth herein, no event has occurred and is continuing or will result from the
consummation of the transactions contemplated by this Amendment that would constitute an
Event of Default or a Default.
13
SECTION 6. ACKNOWLEDGEMENT AND CONSENT
Each Guarantor hereby consents to the terms of this Amendment and fl1rther hereby
confirms and agrees that, notwithstanding the effectiveness ofthis Amendment, the obligations
of such Guarantor under each of the Credit Documents to which such Guarantor is a party shall
not be impaired and each of the Credit Documents to which such Guarantor is a party are, and
shall continue to be, in full force and etiect and arc hereby confirmed and ratified in all respects.
Each Guarantor hereby acknowledges and agrees that (i) notwithstanding the conditions
to effectiveness set forth in this Amendment, such Guarantor is not required by the tenns of the
Credit Agreement or any other Credit Document to consent to the amendment to the Credit
Agreement effected pursuant to this Amendment and ( ii) nothing in the Credit Agreement, this
Amendment or any other Credit Document shall be deemed to require the consent of such
Guarantor to any fl1ture amendments to the Credit Agreement.
SECTION 7. MISCELLANEOUS
7.1 Binding Effect. This Amendment shall be binding upon the parties hereto and
their respective successors and assigns and shall inure to the benefit of the parties hereto and the
successors and assigns of Lenders.
7.2 Severability. In case any provision in or obligation hereunder shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the
remaining provisions or obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
7.3 Effect on Credit Agreement. Except as expressly set forth herein, Administrative
Agent and Lenders agrees to no amendment with respect to the Credit Agreement or any other
Credit Document, and the Credit Agreement and the other Credit Documents remain in full force
in accordance with their respective terms. Administrative Agent's and Requisite Lender's
agreeing to the amendment contained herein does not and shall not create (nor shall any Credit
Party rely upon the existence of or claim or assert that there exists) any obligation of
Administrative Agent or any Lender to consider or to agree to any further amendment to any
Credit Document. In the event that Administrative Agent or Lenders subsequently agree to
consider any further amendment to any Credit Document, neither the amendment contained
herein nor any other conduct of Administrative Agent or Lenders shall be of any force or effect
on Administrative Agent's or Lenders' consideration or decision with respect to any such
amendment, and the Administrative Agent and Lenders shall have no further obligation
whatsoever to consider or to agree to any such amendment. Administrative Agent, on behalf of
the Lenders, expressly reserves the right to require strict compliance with the terms of the Credit
Agreement and the other Credit Documents in all respects. The amendment agreed to herein
shall not constitute a course of dealing at variance with the Credit Agreement so as to require
further notice by Administrative Agent or Lenders to require strict compliance with the terms of
the Credit Agreement and the other Credit Documents in the future. The parties hereto
acknowledge and agree that this Amendment shall be deemed to be a Credit Document. On and
after the Amendment Effective Date, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof', "herein" or words of like import referring to the Credit
14
Agreement, and each reference in the other Credit Documents to the "Credit Agreement",
"thereunder", "thereof', "therein" or words of like import referring to the Credit Agreement shall
mean and be a reference to the Amended Credit Agreement.
7.4 Fees and Expenses. The Credit Parties acknowledge that all costs, fees and
expenses as described in Section 10.2 and Section 10.3 ofthe Credit Agreement incurred by
Administrative Agent, Collateral Agent and Arranger and their respective counsel with respect to
this Amendment and the documents and transactions contemplated hereby shall be for the
account ofBorrowers.
7.5 Headings. Section headings herein are included herein for convenience of
reference only and shall not constitute a part hereof for any other purpose or be given any
substantive effect.
7.6 APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 AND 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAW).
7. 7 Counterparts. This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. As set forth herein, this
Amendment shall become effective upon the execution of a counterpart hereof by each of the
parties hereto and receipt by Administrative Agent of written or telephonic notification of such
execution and authorization of delivery thereof.
[The remainder of this page is intentionally left blank.]
15
Hrr::.-J. 1 J.'-t .lJ. r ru111
I U ::<D'-t'-tJ.O
iN WiTN 1\:SS \V.i:iEREOF, the parties hereto have co.used this Amendment to he duly
executed and delivered by their respective officers thereunto duly authori7.ed as of the date tlrst
wriuen above.
.BORROWERS:
724966.16-NewYork Server 2A
ALLIED HOLDINGS, INC .
By:
Thomas H. King
Executive Vice
and Chief Financial Ofiicer
;U.LlED SYSTEMS, LTD. (L.P.)
Hy: Allkd Automotive Group, Inc.,
its Managing General Partner
By: -
Thomas B. King
Executive Vice President
and Assistilllt Trea.'\urer
ACKNOWLEDGED AND AGRltltD:
ACE OPERA TTONS, lJ,C
A..XIS NETHERLANl)S, J J.,.C
By:
By:
AX'fS Group,
its Sole Member and Manager
...,,
Thomas H. King
Execmive Vice President
and t\ssista.nt Treasurer
Nu. J Signature Page

.L'-t J.l. r rum.
7249G6. Hi-New York Server 2A
IUXO'-t'-tl.O
AH INDUSTRIES INC.
Al,J,JF,D AUTOMOTIVE GROUP, INC.
ALLIED FREIGHT .LLC
ALLJEH SYSTEMS (CANADA) COMPANY
AXIS CANADA COMPANY
AXIS GROlJ.Pt INC.
COMMERCIAL CARRfKRS, INC.
CORDlN TRANSPORT LLC
-- - -- - -.. .. SERVICES, INC!.
p;J. BOUTELL DRIVE A WAY LLC
GACS JNCOHPOUATED
QAT, INC.
RMXLLC
TERMINAL SERVICES LLC
TRANSPORT SUPPORT lA,C
By:
A.XIS ARETAt LLC
LOGISTIC SYSTEMS, J,l,C
LOGISTIC TECHNOLOGY, LLC
By: .".X IntcmaLional Limited,
its Sole and Manager
By:
Thomas H. King
Exccutiw Vice President
and Assistant Tteasmer
No. 5 S1?,1wtu:rP. Page
r.J'J
ADMINISTRATIVE AGENT: THR CIT GROUP/BUSINESS CRRDIT, INC.,
Amendment No. 3 Signature Page
724966, 16-New York Server 2A
EXHIBIT E
Execution Copy
AMENDMENT NO. 4 TO CREDIT AGREEMENT
This AMENDMENT NO. 4 TO CREDIT AGREEMENT dated as of August 21, 2009
(this "Amendment"), to the Amended and Restated First Lien Secured Super-Priority Debtor In
Possession and Exit Credit and Guaranty Agreement, dated as of May 15, 2007 (as amended by
that certain Limited Waiver and Amendment No. I to Credit Agreement and Pledge and Security
Agreement, dated as of May 29, 2007, as further amended by that certain Amendment No. 2 to
Credit Agreement, dated as of June 12, 2007 and that certain Amendment No. 3 to Credit
Agreement, dated as of April 17, 2008, the "Credit Agreement"), by and among ALLIED
SYSTEMS HOLDINGS, INC. (formerly known as Allied Holdings, Inc.), a Delaware
corporation ("Holdings"), ALLIED SYSTEMS, LTD. (L.P.), a Georgia limited partnership
("Systems" and, together with Holdings, the "Borrowers"), and CERTAIN SUBSIDIARIES
OF THE BORROWERS, the Lenders party thereto from time to time, GOLDMAN SACHS
CREDIT PARTNERS L.P., as Lead Arranger and as Syndication Agent and THE CIT
GROUP/BUSINESS CREDIT, INC. as Administrative Agent (together with its permitted
successors in such capacity, "Administrative Agent") and as Collateral Agent.
RECITALS:
WHEREAS, the Credit Agreement currently allows Sponsor and its Affiliates (other than
the Borrowers and their Subsidiaries) to become Lenders by purchasing and assuming the rights
and obligations of one or more Lenders under the Credit Agreement, but only if Sponsor and/or its
Affiliates contribute such rights and obligations to the Borrowers in the form of capital
contributions;
WHEREAS, Requisite Lenders have agreed (a) to amend the Credit Agreement to permit
Sponsor and its Affiliates to be Lenders under the Credit Agreement without any requirement to
contribute Loans or Commitments to the Borrowers and (b) to consent to make certain other
modifications thereto, in each case, in the manner, and subject to the terms and conditions,
provided for herein.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions
and covenants herein contained, the parties hereto agree as follows:
SECTION I. DEFINITIONS
1.1 All capitalized terms used herein (including in the introductory paragraph and
Recitals set forth above) and not otherwise defined shall have the meanings assigned to such terms
in the Credit Agreement.
SECTION 2. AMENDMENTS TO CREDIT AGREEMENT
2.1 Amendments to Section 1: Definitions.
(a) Section 1.1 of the Credit Agreement is hereby amended by inserting
the following definition therein:
LA\1%7719.16
" "Fourth Amendment" means that certain Amendment No. 4 to the
Credit Agreement, dated as of August 2 I, 2009, by and among the Borrowers, certain
Subsidiaiies of the Borro\vers and the Lenders parties thereto.''
(b) Section 1.1 of the Credit Agreement is hereby further amended by
deleting the definitions of "Eligible Assignee" and "Term Loan Exposure" in their entirety and
inserting in lieu thereof the following:
" "Eligible Assignee" means (i) any Lender, any Affiliate of any Lender
and any Related Fund (any two or more Related Funds being treated as a single Eligible
Assignee for all purposes hereof), and (ii) any commercial bank, insurance company,
investment or mutual fund or other entity that is an "accredited investor" (as defined in
Regulation D under the Securities Act) and which extends credit or buys loans; provided,
neither Borrowers nor any of their Subsidiaries shall be an Eligible Assignee."
" "Term Loan Exposure" means, with respect to any Lender, as of any
date of determination, the outstanding principal amount of the Term Loans of such Lender
plus during the Term Loan Commitment Period, the unfunded Term Loan Commitment of
such Lender; provided, at any time prior to the making of the initial Term Loans, the Term
Loan Exposure of any Lender shall be equal to such Lender's Term Loan Commitment."
2.2 Amendments to Section 5: Affirmative Covenants.
(a) Section 5.1 of the Credit Agreement is hereby amended by deleting
the following at the end of clause (a) thereof:
"and together with such financial statements, a written report certified by an Authorized
Officer of Holdings identifYing (i) the aggregate amount of Term Loans and Second Lien
Term Loans acquired by any Restricted Sponsor Affiliate during such month (and with
respect to the first month of any Fiscal Quarter, the amount of Term Loans and Second
Lien Term Loans acquired in the last month of the preceding Fiscal Quarter), together with
the date of, and purchase price for, each such acquisition and (ii) the aggregate principal
amount of Term Loans and Second Lien Term Loans held by any Restricted Sponsor
Affiliates as of the last day of such month;"
2.3 Amendments to Section 8: Events of Default; Carve-Out Event.
(a) Section 8.1 of the Credit Agreement is hereby amended by deleting
clause (aa) thereof in its entirety.
2.4 Amendments to Section 10: Miscellaneous.
(a) Section I 0.5 of the Credit Agreement is hereby amended by deleting
clause (e) thereof in its entirety.
(b) Section 10.6 oft he Credit Agreement is hereby amended by deleting
clause (b) thereof in its entirety and inserting the following in lieu thereof:
2
LA\1%7719 16
"(b) Register. The Borrowers, Administrative Agent and Lenders shall deem and treat
the Persons listed as Lenders in the Register as the holders and owners of the corresponding
Commitments, LC Deposits and Loans listed therein for all purposes hereof, and no
assignment or transfer of any such Commitment, LC Deposit or Loan shall be effective, in
each case, unless and until recorded in the Register following receipt of an Assignment
Agreement effecting the assignment or transfer thereof, in each case, as provided in
Section I 0.6(d); provided, however, any Assignment Agreement that is not recorded in the
Register within the time period required by the following sentence shall be deemed
effective and recorded in the Register and the assignee thereof shall be deemed a Lender
for all purposes under this Agreement in each case at the end of such time period. Each
assignment shall be recorded in the Register on the Business Day the Assignment
Agreement is received by Administrative Agent, ifreceived by 12:00 noon New York City
time, and on the following Business Day if received after such time, prompt notice thereof
shall be provided to the Borrowers and a copy of such Assignment Agreement shall be
maintained, as applicable. The date of such recordation of a transfer shall be referred to
herein as the "Assignment Effective Date." Any request, authority or consent of any
Person who, at the time of making such request or giving such authority or consent, is listed
in the Register as a Lender shall be conclusive and binding on any subsequent holder,
assignee or transferee of the corresponding Commitments, LC Deposits or Loans."
(c) Section 10.6(c) of the Credit Agreement is hereby amended by
deleting the following at the end of the first sentence of clause (ii) thereof:
"; provided further, that (x) no Lender may sell, assign or transfer or otherwise convey any
of its rights and obligations under this Agreement (including the Commitments, the LC
Deposits or the Loans) to a Restricted Sponsor Affiliate and no Restricted Sponsor
Affiliate shall acquire any such rights or obligations, in each case if (A) immediately prior
to and after giving effect to such assignment or transfer the aggregate amount of the Term
Loan Exposure held or beneficially owned by all Restricted Sponsor Affiliates would
exceed 25% of the aggregate amount of the Term Loan Exposure held or beneficially
owned by all Lenders (including Restricted Sponsor Affiliates) or (B) after giving effect to
such assignment or transfer, the aggregate amount of Term Loans acquired by all
Restricted Sponsor Affiliates since the Closing Date would exceed $50 million
(notwithstanding whether all or any portion of such acquired Term Loans have been
contributed to the Borrowers or otherwise disposed of by the Restricted Sponsor Affiliates)
and (y) assignments by or to a Restricted Sponsor Affiliate shall be further subject to
Section I 0.6U)."
(d) Section I 0.6(h) of the Credit Agreement is hereby amended by
deleting clause (i) thereof in its entirety and inserting the following in lieu thereof:
"(i) Each Lender shall have the right at any time to sell one or more participations to any
Person (other than Holdings or any of its Subsidiaries) in all or any part of its
Commitments, Loans or in any other Obligation."
(e) Section I 0.6 of the Credit Agreement is hereby amended by deleting
clause (j) thereof in its entirety and inserting the following in lieu thereof (Section 2. I 7 of the
3
LA\1%7719 16
Credit Agreement is hereby correspondingly amended to delete the reference to Section I 0.6(j)(iii)
therein):
"(j) Restricted Sponsor Affiliates. The Restricted Sponsor Affiliates, from time to time,
intend to become Lenders and, from time to time, to sell, assign or transfer all or a portion
of their Commitments, LC Deposits, Loans or other Obligations and the rights and
obligations as Lenders related thereto under this Agreement to Eligible Assignees. Each
Agent and Lender hereby acknowledges that a Restricted Sponsor Affiliate (i) may be a
Lender (provided such Restricted Sponsor Affiliate otherwise satisfies the criteria of the
definition of the term of "Eligible Assignee") and (ii) may sell, assign or transfer all or a
portion of its Commitments, LC Deposits, Loans, other Obligations and the rights and
obligations as a Lender related thereto under this Agreement to Eligible Assignees."
(t) Section I 0.6 of the Credit Agreement is hereby amended by deleting
clause (k) thereof in its entirety (Section 2.17 of the Credit Agreement is hereby correspondingly
amended to delete the reference to Section I 0.6(k)(i) therein).
2.5 Amendments to Exhibits.
(a) Exhibit E to the Credit Agreement (Assignment and Assumption
Agreement) is hereby amended by deleting the heading of Section I in its entirety and inserting in
lieu thereofthe following:
"I. Representations and Warranties; Covenants."
(b) Exhibit E to the Credit Agreement (Assignment and Assumption
Agreement) is hereby further amended by deleting Section 1.1 of the Standard Terms and
Conditions for Assignment and Assumption Agreement in its entirety and inserting in lieu thereof
the following:
"1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and
clear of any lien, encumbrance or other adverse claim, and (iii) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and to
consummate the transactions contemplated hereby; (b) assumes no responsibility with
respect to (i) any statements, warranties or representations made in or in connection with
any Credit Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument or document
delivered pursuant thereto, other than this Assignment (herein collectively the "Credit
Documents"), or any collateral thereunder, (iii) the financial condition of the Borrower,
any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Credit
Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries
or Affiliates or any other Person of any of their respective obligations under any Credit
Document."
(c) Exhibit E to the Credit Agreement (Assignment and Assumption
Agreement) is hereby further amended by deleting Section 1.2 of the Standard Terms and
4
LA\1967719.16
Conditions for Assignment and Assumption Agreement in its entirety and inserting in lieu thereof
the following:
"1.2 Assignee. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and deliver this
Assignment and to consummate the transactions contemplated hereby and to become a
Lender under the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee
under the Credit Agreement, (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement and, to the extent of the Assigned Interest, shall have
the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement
and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and to purchase the Assigned
Interest on the basis of which it has made such analysis and decision, and (v) if it is a
Non-US Lender, attached to the Assignment is any documentation required to be delivered
by it pursuant to the terms of the Credit Agreement, duly completed and executed by the
Assignee; and (b) agrees that (i) it will, independently and without reliance on the
Administrative Agent, the Assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at that time, continue to make its own credit
decisions in taking or not taking action under the Credit Documents, and (ii) it will perform
in accordance with their terms all of the obligations which by the terms of the Credit
Documents are required to be performed by it as a Lender."
SECTION 3. CONDITIONS PRECEDENT TO EFFECTIVENESS
The effectiveness of the amendments set forth in this Amendment are subject to the
satisfaction, or waiver, of the following conditions on or before the date hereof(the "Amendment
Effective Date"):
(a) The Borrowers, the other Credit Parties and Requisite Lenders shall
have indicated their consent by the execution and delivery of the signature pages hereof to
ComVest via email, telex, telefacsimile, United States mail (certified, return receipt) or courier
service at the address and email set forth below:
Com Vest Investment Partners III, L.P.
c/o The Com Vest Group
CityPiace Tower
525 Okeechobee Blvd., Suite I 050
West Palm Beach, Fl 33401
Attention: Mark Hughes, Jose Gordo
Email: markh@comw .com, joseg@comvest.com
Fax: (561) 727-2100
Phone: (561) 727-2000
(b) The Requisite Lenders shall have received a certificate from an
officer of Holdings stating that as of the Amendment Effective Date and after giving effect to this
Amendment (i) the representations and warranties (other than the representations and warranties
contained in Sections 4.9, 4.15 and 4.22 of the Credit Agreement) contained in Section 4 herein
5
LA\1967719.16
and in the other Credit Documents are true, correct and complete in all material respects on and as
of the Amendment Effective Date to the same extent as though made on and as of that date, except
to the extent such representations and warranties specifically relate to an carlici date, in which case
such representations and warranties are true, correct and complete in all material respects on and as
of such earlier date and (ii) other than those certain specified Events of Default listed on Schedule
A hereto (the "Specified Events of Default"), no event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment that would
constitute an Event of Default or a Default.
(c) The Requisite Lenders shall have received an executed copy of the
favorable written opinion of Troutman Sanders LLP, counsel for the credit parties, in form and
substance reasonably satisfactory to the Requisite Lenders, addressing among other things the due
authorization, execution and delivery of this Amendment, the enforceability of the Loan
Documents, as amended by this Amendment, and the continuing validity of the security interests
in the Collateral created pursuant to the Loan Documents and the perfection thereof.
(d) The Requisite Lenders shall have received (i) certified copies of the
resolutions of the Board of Directors of each Borrower and each other Credit Party approving this
Amendment and the matters contemplated hereby, (ii) a certificate of a duly authorized officer of
each Borrower and each other Credit Party certifYing the names and true signatures of the officers
of the Borrower and such other Credit Party authorized to sign this Amendment, (iii) certified
copies of the organizational documents of each Borrower and each other Credit Party, (iv) a
certificate of good standing or existence of each Borrower and each other Credit Party issued as of
a recent date by the secretary of state or similar officer of the jurisdiction of organization of each
such entity and (v) evidence satisfactory to them of the concurrent closing of the transactions
contemplated by the Loan Purchase Agreement dated as of the date hereof relating to certain Loans
and other Credit Extensions; and
(e) The Requisite Lenders, shall have been reimbursed by the
Borrowers for all costs and expenses, including attorneys' fees (including the fees, charges and
disbursements ofWillkie Farr & Gallagher LLP, outside counsel for the Lenders signatory hereto)
incurred by the undersigned in connection with the Credit Documents and this Amendment and all
other transactions (contemplated, completed or otherwise) related to any thereof, whether or not
consummated.
SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1 COipOiate Power and Authority. Each Credit Party has all requisite corporate,
limited liability company or partnership (as applicable) power and authority to enter into this
Amendment and to carry out the transactions contemplated by, and perform its obligations under,
the Credit Agreement, as amended by this Amendment (the "Amended Credit Agreement").
4.2 Authorization of Amendments. The execution and delivery of this Amendment
have been duly authorized by all necessary corporate, limited liability company or partnership (as
applicable) action on the part of each Credit Party.
6
LA\1967719. 16
4.3 No Conflict. The execution and delivery by each Credit Party of this Amendment
and the performance by each Credit Party of the Amended Credit Agreement do not and will not (a)
violate (i) any provision of any law or any governmental rule or regulation applicable to any Credit
Party, (ii) the certificate or articles of incorporation or bylaws (or other organizational documents)
of any Credit Party or (iii) any order, judgment or decree of any court or other agency of
government binding on any Credit Party; (b) conflict with, result in a breach of or constitute (with
due notice or lapse of time or both) a default under any Contractual Obligation of any Credit Party,
(c) result in or require the creation or imposition of any Lien upon any of the properties or assets of
a Credit Party other than those in favor of the Collateral Agent, on behalf of itself and the Secured
Parties, pursuant to the Credit Documents or those in favor of the Second Lien Collateral Agent on
a second priority basis pursuant to the Second Lien Credit Documents, or (d) require any approval
of stockholders or any approval or consent of any Person under any Contractual Obligation of any
Credit Party other than (i) approvals and consents that have been made or obtained and (ii)
approvals and consents the failure of which to obtain could not reasonably be expected to have a
Material Adverse Effect.
4.4 Governmental Consents. No action, consent or approval of, registration, notice or
filing with or any other action by any Governmental Authority is required in connection with the
execution and delivery by each Credit Party of this Amendment or the performance by the Credit
Parties of the Amended Credit Agreement except to the extent that the failure to undertake or
obtain such action, consent, approval, registration or notice could not reasonably be expected to
have a Material Adverse Effect.
4.5 Binding Obligation. This Amendment has been duly executed and delivered by
each Credit Party and this Amendment and the Amended Credit Agreement constitute the legal,
valid and binding obligation of each Credit Party enforceable against each Credit Party in
accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting creditors' rights generally and except as
enforceability may be limited by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
4.6 Incorporation of Representations and Warranties From Credit Documents. The
representations and warranties (other than the representations and warranties contained in Sections
4.9, 4.15 and 4.22 of the Credit Agreement) contained in the Credit Documents are and will be true,
correct and complete in all material respects on and as of the Amendment Effective Date to the
same extent as though made on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were true, correct and complete
in all material respects on and as of such earlier date.
4.7 Absence of Default. After giving effect to the amendment set forth herein, other
than the Specified Events of Default, no event has occurred and is continuing or will result from
the consummation of the transactions contemplated by this Amendment that would constitute an
Event of Default or a Default.
7
LA\1967719 16
SECTION 5. ACKNOWLEDGEMENT AND CONSENT; RELEASE
Each Guarantor hcicby consents to the tcims of this Amendment and further hereby
confinns and agrees that, notwithstanding the effectiveness of this Amendment, the obligations of
such Guarantor under each of the Credit Documents to which such Guarantor is a party shall not be
impaired and each of the Credit Documents to which such Guarantor is a party are, and shall
continue to be, in full force and effect and are hereby confirmed and ratified in all respects.
Each Guarantor hereby acknowledges and agrees that (i) notwithstanding the conditions to
effectiveness set forth in this Amendment, such Guarantor is not required by the terms of the
Credit Agreement or any other Credit Document to consent to the amendment to the Credit
Agreement e1Tected pursuant to this Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Credit Document shall be deemed to require the consent of such
Guarantor to any future amendments to the Credit Agreement.
The Credit Parties hereby acknowledge and agree that, for the avoidance of doubt and
notwithstanding any other provision of this Amendment to the contrary, the obligations of the
Credit Parties under Section I 0.3 of the Credit Agreement as to any Indemnitee shall continue with
respect to such Indemnitee notwithstanding any transfer by any Lender of its Loans or
Commitments under the Credit Agreement.
The Requisite Lenders hereby acknowledge and agree that, upon ComVest Investment
Partners Ill, L.P.'s ("Com Vest") receipt of$1 ,850,000 pursuant to Section 1.5( a)(ii) of that certain
Loan Purchase Agreement, dated as of August 21, 2009 (the "Loan Purchase Agreement"),
among Yucaipa American Alliance Fund I, LP, Yucaipa American Alliance (Parallel) Fund I, LP
and Com Vest, (i) all conditions under Section 3(e) hereof shall be fully satisfied and (ii) the
Borrowers shall have no further reimbursement obligations to the Requisite Lenders.
As a material inducement to the willingness of Com Vest to enter into this Amendment, and
to consummate the transactions contemplated hereby, and subject to the terms of the last sentence
of this paragraph, Com Vest, on the one hand, and each of the Credit Parties, on the other hand, in
each case, for itself and its respective successors, assigns and Affiliates (individually, a
"Releasor" and collectively, the "Releasors"), (a) in the case of Com Vest, the Credit Parties, and
(b) in the case of the Credit Parties, Com Vest, and, in each case, the Affiliates, stockholders,
partners, controlling persons, Subsidiaries, agents, sub-agents, advisors, employees, directors,
officers, successors and assigns of the Credit Parties or ComVest, as applicable, and their
respective Affiliates (individually, a "Releasee" and collectively, "Releasees") hereby forever
releases from any and ail ciaims, demands, proceedings, causes of action, orders, obligations,
Contractual Obligations, debts and liabilities whatsoever (collectively, "Claims"), whether known
or unknown, suspected or unsuspected, both at law and in equity, which each Releasor now has,
has ever had or may hereafter have against the respective Releasees, in each case, arising on or
prior to the Amendment Effective Date, or on account of or arising out of any matter, cause or
event occurring on or prior to the Amendment Effective Date (including, without limitation,
arising out of or in connection with the Loan Purchase Agreement, the execution, delivery and
performance of Loan Purchase Agreement by any Releasee and the consummation of the
transactions contemplated thereby), whether or not relating to Claims pending on, or asserted after,
the Amendment Effective Date, and which relate to the Borrowers or any Subsidiary thereof
8
LA\1%7719.16
and/or relate to or arise out of the Credit Documents, the Second Lien Credit Documents, the Loan
Purchase Agreement or the respective transactions contemplated thereby, including any Claims on
account of or arising out of any meeting between or among the parties hereto or any
representatives thereof that occurred on or prior to the Amendment Effective Date; provided,
however, that nothing contained in this Section 5 shall operate (i) to release ComVest in its
capacity as a Lender under the Credit Documents from any contractual obligation it may have
thereunder that is required to be performed after (but not before) the Amendment Effectiveness
Date; provided, further, that notwithstanding the provisions of this clause (i) to the contrary,
effective upon the registration or deemed registration ofthe assignment by ComVest of its Loans
and Commitments to the Yucaipa Funds (as defined below) pursuant to the Loan Purchase
Agreement in accordance with Section I 0.6(b) of the Credit Agreement, as amended by this
Amendment, Com Vest wi 11 be released from all contractual obligations pursuant to Section 1 0.6(f)
of the Credit Agreement (and, for the avoidance of doubt, all other Claims) under the Credit
documents, or (ii) to release any Claims against any Credit Party or any Subsidiary thereof or any
related Releasee thereof under the Credit Documents or the Second Lien Credit Documents. In
furtherance of the foregoing, each Releasor hereby irrevocably covenants and agrees to refrain
from, directly or indirectly, asserting any claim or demand, or commencing, instituting or causing
to be commenced, any proceeding of any kind against any Releasee, based upon any matter
purported to be released hereby. Notwithstanding the provisions of clause (ii) of the proviso to the
immediately preceding sentence to the contrary, the parties hereto acknowledge and agree that in
accordance with the provisions ofthe Credit Documents, Com Vest may assign all Claims referred
to in clause (ii) above under the Credit Documents, and that upon any such assignment, such
Claims under the Credit Documents shall be transferred to the applicable transferee.
Notwithstanding anything in this paragraph to the contrary, neither Yucaipa American Alliance
Fund I, LP nor Yucaipa American Alliance (Parallel) Fund I, LP (collectively, the "Yucaipa
Funds"), nor any of the Affiliates, stockholders, partners, controlling persons, Subsidiaries,
agents, sub-agents, advisors, employees, directors, officers, successors and assigns of such
Yucaipa Funds (other than the Credit Parties and their Subsidiaries and their stockholders,
partners, controlling persons, Subsidiaries, agents, sub-agents, advisors, employees, directors,
officers, successors and assigns) shall constitute Releasees or Releasors hereunder.
SECTION 6. MISCELLANEOUS
6.1 Binding Effect. This Amendment shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties hereto and the
successors and assigns of Lenders.
6.2 Severability. In case any provision in or obligation hereunder shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the
remaining provisions or obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
6.3 Effect on Credit Agreement. Except as expressly set forth herein, Lender agrees to
no amendment with respect to the Credit Agreement or any other Credit Document, and the Credit
Agreement and the other Credit Documents remain in full force in accordance with their respective
terms; provided, however, in case of any inconsistencies between this Amendment and the Credit
Agreement, this Amendment shall prevail. The agreement by the Requisite Lenders agreeing to
9
LA\1967719.16
the amendment contained herein does not and shall not create (nor shall any Credit Party rely upon
the existence of or claim or assert that there exists) any obligation of Administrative Agent or any
( PnAPr f{'\ f'llnC'iriPr (')r tA tn -:Jir'\\1 -h1rtha.r f"lln-\Onrh"'nont tn 'lot"\'\/ nAr--u"'"'cH"'I+ f .... -the- Hio.""T Thn.i-
.._.._. '"""'"'" ,......, ....,.._,,,._,,'-".._." ....,, ,......, I.V lUI\.JIVI UI11"-'J1UliJ.._.JII. I..V Ull) '-'1\,..UI\. L/VVUIII\..-11'- Ill \.<V\rlll liiQ.I.
Administrative Agent or Lenders subsequently agree to consider any further amendment to any
Credit Document, neither the amendment contained herein nor any other conduct of
Administrative Agent or Lenders shall be of any force or effect on Administrative Agent's or
Lenders' consideration or decision with respect to any such amendment, and the Administrative
Agent and Lenders shall have no further obi igation whatsoever to consider or to agree to any such
amendment. Administrative Agent, on behalf of the Lenders, expressly reserves the right to
require strict compliance with the terms of the Credit Agreement and the other Credit Documents
in all respects. The amendment agreed to herein shall not constitute a course of dealing at variance
with the Credit Agreement so as to require further notice by Administrative Agent or Lenders to
require strict compliance with the terms of the Credit Agreement and the other Credit Documents
in the future. The parties hereto acknowledge and agree that this Amendment shall be deemed to
be a Credit Document. On and after the Amendment Effective Date, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof', "herein" or words oflike import referring
to the Credit Agreement, and each reference in the other Credit Documents to the "Credit
Agreement", "thereunder", "thereof', "therein" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Amended Credit Agreement.
6.4 Headings. Section headings herein are included herein for convenience of
reference only and shall not constitute a part hereof for any other purpose or be given any
substantive effect.
6.5 APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 AND 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAW).
6.6 Countemarts. This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. As set forth herein, this
Amendment shall become effective upon the execution of a counterpart hereof by each of the
parties hereto and receipt by Com Vest of written or telephonic notification of such execution and
authorization of delivery thereof.
[The remainder of this page is intentionally left blank.]
10
LA\1967719 16
IN WITNESS WHEREOF, the parties hC(reto have caused this Amendment to be duly
executed and delivered by their respe<:tive officers thereunto du1y authorized as of the date first
written above.
BORROWERS:
ALLIED SYSTEMS HOLDINGS, INC.
By: ~ . : : : - ~
Senior Vice President, Chief Financial
Officer and Treasurer
ALLIED SYSTEMS, LTD. (L.P.)
By:
By:
11
Allied Automotive Group, Inc.,
its Managing General Partner
~ ~ ~
ScottD.Macau1ay ~
Vice President/Treasurer
ACKNOWLEDGED AND AGREED:
ALLIED FREIGHT BROKER LLC
ALLIED SYSTEMS (CANADA) COMPANY
AXIS CANADA COMPANY
AXIS GROUP, INC.
COMMERCIAL CARRIERS, INC.
CORD IN TRANSPORT LLC
C T SERVICES, INC.
F.J. BOUTELL DRIVEA WAY LLC
GACSINCORPORATED
QAT, INC.
RMXLLC
TERN.UNALSERVICESLLC
TRANSPORT SUPPORT LLC
By: . . c ; ~ . 7
Scott D. Macaulay
Vice President!Treasurer
AXIS ARETA, LLC
LOGISTIC SYSTEMS, LLC
LOGISTIC TECHNOLOGY, LLC
By: AX International
its Sole Member and Manager
By: ~ ~ ~ - -
Scott D. Macaulay /
Vice Presidentffreasurer
Limited,
----_____ ,1..<.12________________ _
FOURTH AMENDMENT TO THE CREDIT
AGREEMENT
To approve the Fourth Amendment:
Com Vest Investment Partners III, L.P.
ay & o w ~
Name: cecmo M:
Title: CFO
13
Schedule A
J. The Borrowers delivered to the Administrative Agent certain financial statements and
other materials described in and required by Sections 5.1(b) and@ of the Credit Agreement
(collectively "Financial Reports") for and in respect of (i) the Fiscal Month and the Fiscal
Quarter ended as of June 30, 2008, (ii) the Fiscal Month and the Fiscal Quarter ended as of
September 30, 2008 and (iii) the Fiscal Month and the Fiscal Quarter ended as of March 31, 2009
(collectively the "Financial Statements"). The Financial Statements, including without
limitation the Compliance Certificates for and with respect to the other Financial Statements,
disclose, or would disclose, that the Borrowers breached Sections 6.7(a) and 6.7(b) of the Credit
Agreement by failing to comply, for the Fiscal Quarters of June 30, 2008, September 30, 2008 and
March 31, 2009, with the financial covenants set forth in such sections, which failures to comply
constitute Events ofDefault under Section 8.l{c) ofthe Credit Agreement.
2. The Borrowers have failed to timely comply with their obligation to deliver certain
monthly reports and other materials described in and required by Section 5.1 (a) of the Credit
Agreement for the Fiscal Month ended as of April 30, 2009, which failures to comply constitute
Events of Default under Section 8.l(c) of the Credit Agreement.
3. The Borrowers have failed to timely comply with their obligation to deliver a certified
written report identifying the amount ofTerm Loans and Second Lien Term Loans purchased by
the Restricted Sponsor Affiliates in the months of June and July the total aggregate amount of
Term Loans and Second Lien Term Loans held by the Restricted Sponsor Affiliates as of the end
of such months as required by Section 5. J (a) of the Credit Agreement, which failure to comply as
of August 30, 2008 has resulted in an Event of Default under Section 8. J (c) of the Credit
Agreement.
4. The Borrowers have failed to timely comply with their obligation to deliver certain annual
financial statements, a Compliance Certificate and other materials described in and required by
Sections 5 .I( c) and @ of the Credit Agreement for the Fiscal Year ended December 31, 2008,
which failure to comply as of April 15, 2009 has resulted in an Event of Default under Section
.t..!.f} of the Credit Agreement. Such annual financial statements would disclose that the
Borrowers breached Sections 6.7(a) and 6.7(b) of the Credit Agreement by failing to comply, for
the Fiscal Quarters ending December 31, 2008 and March 31, 2009, with the financial covenants
set forth in such sections, which failures to comply constitute Events of Default under Section
.t..!.f} of the Credit Agreement.
5. The Borrowers have failed to timely comply with their obligation to deliver a consolidated
plan and financial forecast for the Fiscal Year ended December 31, 2009, including (i) a forecasted
consolidated balance sheet and forecasted consolidated statements of income and cash flows of
Holdings and its Subsidiaries for such Fiscal Year and an explanation of the assumptions on which
such forecasts are hased, and (ii) forecasted consolidated statements of income and cash flows of
Holdings and its Subsidiaries for each month in such Fiscal Year as required by Section 5.I(i) of
i4
LA\1967719 16
the Credit Agreement, which failure to comply as of February 28, 2009 has resulted in an Event of
Default under Section 8.1(e) ofthe Credit Agreement.
6. The Borrowers have been maintaining excess cash balances in bank accounts that are not
subject to any account control agreement which constitute an Event of Default under the Section
.t.l.(sU of Credit Agreement.
7. The Borrowers have failed to timely comply with their obligation to pay promptly the
attorneys' fees of Ropes & Gray LLP incurred by the Agents and Lenders in enforcing any
Obligations of or in collecting any payments due from any Credit Party under the Credit
Agreement or under the other Credit Documents by reason of such Default or Event of Default or
in connection with any refinancing or restructuring of the credit arrangements provided under the
Credit Agreement in the nature of a "work-out" or pursuant to any insolvency or bankruptcy cases
or proceedings as required by Section I 0.2(h) of the Credit Agreement, which failure to comply
has resulted in an Event ofDefault under Section 8.l{a) of the Credit Agreement.
8. The Borrowers have failed to timely comply with their obligation to reimburse the LC
Disbursement as required by Section 2.4(d) of the Credit Agreement, which failure to comply has
resulted in an Event of Default under Section 8.1(a) ofthe Credit Agreement.
9. The Borrowers have failed to maintain Interest Rate Agreements at the level required by
Section 5.12 of the Credit Agreement, which failure has resulted in an Event of Default under
Section 8.1( e) of the Credit Agreement.
10. The Borrowers and the Guarantors have failed to make the payment of interest due to the
Lenders on August 3, 2009, which failure has resulted in an Event of Default under Section
8.1 {a)( iii) of the Credit Agreement.
II. The Borrowers have failed to comply, for the Fiscal Quarter ending June 30, 2009, with the
financial covenants set forth in Sections 6.7(a) and 6.7(b) of the Credit Agreement, which failures
to comply constitute Events of Default under Section 8.1 {c) of the Credit Agreement.
12. The Borrowers have failed to timely give notice to the Administrative Agent of the
foregoing Defaults or Events of Default as required by Section 5.1 <D of the Credit Agreement,
which failure has resulted in an Event of Default under Section 8.1(a) ofthe Credit Agreement.
15
LA\1%7719.16
EXHIBITF
FORBEARANCE AGREEMENT
THIS FORBEARANCE AGREEMENT (this "Forbearance Agreement") is made and
entered into as of this 24th day of September, 2008, by and among Allied Systems Holdings, Inc.
(formerly known as Allied Holdings, Inc.), a Delaware corporation ("Holdings"), Allied
Systems, Ltd. (L.P.), a Georgia limited partnership ("Systems" and, together with Holdings, the
"Borrowers" and individually a "Borrower"), The CIT Group/Business Credit, Inc. ("CIT''), as
Administrative Agent and Collateral Agent (collectively the "Agent"), and the Lenders party
hereto. Certain direct and indirect subsidiaries of Holdings (including the Guarantors under the
Credit Agreement (as defined below)) have joined in the execution hereof to acknowledge and
consent to the tenns and conditions of this Forbearance Agreement.
RECITALS:
WHEREAS, Borrowers, the Administrative Agent, certain subsidiaries of Holdings, the
Lenders party thereto, Goldman Sachs Credit Partners L.P ., as Lead Arranger and as Syndication
Agent, and the Guarantors named therein, entered into that certain Amended and Restated First
Lien Secured Super-Priority Debtor in Possession and Exit Credit and Guaranty Agreement,
dated as of May 15, 2007 (as amended, the "Credit Agreement"; capitalized terms used herein
and not otherwise defined shall have the respective meanings ascribed thereto in the Credit
Agreement); and
WHEREAS, simultaneously with the execution and delivery of this Forbearance
Agreement, Yucaipa American Alliance Fund I, LP and Yucaipa American Alliance (Parallel)
Fund I, LP (collectively, the "Sponsors") and the Administrative Agent, on behalf of and at the
direction of the Requisite Lenders, have entered into that certain Sponsor Side Agreement
substantially in the form attached hereto as Exhibit A (the "Sponsor Agreement''); and
WHEREAS, (i) the Borrowers have failed to timely comply with their obligation to
deliver a certified written report identifying the amount of Term Loans and Second Lien Tenn
Loans purchased by the Restricted Sponsor Affiliates in the months of June and July and the total
aggregate amount of Term Loans and Second Lien Tenns Loans held by the Restricted Sponsor
Affiliates as of the end of such months as required by Section 5.1 (a) of the Credit Agreement,
which failure to comply as of August 30, 2008 has resulted in an Event of Default under Section
8.1(c) of the Credit Agreement and (ii) the Borrowers, on or about August 29,2008, delivered to
the Administrative Agent certain financial statements and other materials described in and
required by Section 5.1(b) and.@ of the Credit Agreement (collectively "Financial Reports") for
and in respect of the Fiscal Month and the Fiscal Quarter ended as of June 30, 2008 (collectively
the "June Financial Statements"). The June Financial Statements, including without limitation
the Compliance Certificate for and with respect to the other June Financial Statements, disclose
that the Borrowers breached Sections 6.7(a) and .2:1(hl of the Credit Agreement by failing to
comply, as of June 30, 2008, with the financial covenants set forth in such sections (the
"Financial Covenant Events of Default"), which failures to comply constitute Events of Default
under Section 8.1(c) of the Credit Agreement (the defaults described in clauses (i) and (ii),
collectively, the "Specified Existing Events of Default"); and
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WHEREAS, the Financial Covenant Events of Default were set forth and described in
that certain Notice of Default and Reservation of Rights from the Agent to Holdings, dated as of
September 3, 2008, pursuant to which the Borrowers were notified that the Financial Covenant
Events of Default had occurred and, among other matters, that the Agent and the Lenders had
reserved and would continue to reserve all of their respective rights and remedies under the
Credit Documents and pursuant to applicable law; and
WHEREAS, by reason of the Specified Existing Events of Default, Agent, on behalf of
the Lenders, is authorized to exercise all remedies available to it under the Credit Documents,
including, but not limited to, the right to repossess and foreclose upon the Collateral; and
WHEREAS, the Borrowers anticipate that they will not be in compliance with Sections
6.7(a) and ~ of the Credit Agreement for the fiscal quarter ending September 30, 2008 (the
"Specified Anticipated Events of Default"; the Specified Existing Events of Default and the
Specified Anticipated Events of Default are hereinafter referred to collectively as the "Specified
Events of Default"); and
WHEREAS, despite the Specified Events of Default, Borrowers desire that the Agent and
Lenders forbear from exercising remedies of suit, repossession and foreclosure otherwise
available to the Agent, on behalf of the Lenders, under the Credit Documents in respect of the
Specified Events of Default, and make other concessions, as set forth herein; and
WHEREAS, Agent and Lenders are willing to forbear from pursuing their remedies in
connection with the Specified Events of Default, and make other concessions to the Credit
Parties (collectively the "Credit Parties' Benefits"), all on the terms and conditions contained
herein, each of which term and condition, individually and in the aggregate, and including the
performance thereof .by Credit Parties, and the performance by the Sponsors of the Sponsor
Agreement, constitute the consideration to the Agent and Lenders for entering into this
Forbearance Agreement, and in the absence of any of which Agent and Lenders would not have
entered into this Forbearance Agreement or otherwise extended to Borrowers the Credit Parties'
Benefits; and
WHEREAS, Borrowers acknowledge and agree that the Credit Parties' Benefits
hereunder are of immediate and material benefit, financial and otherwise, to Borrowers, and that
neither Agent nor Lenders were or are under any obligation to extend to Borrowers the Credit
Parties' Benefits provided hereunder.
NOW, THEREFORE, in consideration of the foregoing premises, and other good and
valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Acknowledgments by Borrowers.
(a) Claims and Liens. Borrowers hereby acknowledge and agree that
(i) as of the close of business on September 17, 2008, (A) the outstanding aggregate respective
principal balances of (1) the Revolving Low,s totaled $34,500,000 w,d (2) t . ~ e Term Loans
totaled $177,750,000, in each case exclusive of accrued interest, costs and attorney's fees
chargeable to Borrowers under the Credit Documents, and (B) the LC Usage totaled
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$45,278,376; and (ii) all Obligations of Borrowers to the Agent and the Lenders are secured by
validly perfected first priority security interests in substantially all assets of the Borrowers,
except to the extent that the Credit Documents expressly permit that such assets are not required
to be so secured or perfected.
(b) Specified Events of Default. Borrowers hereby further
acknowledge and agree that (i) the Specified Existing Events of Default have occurred, as set
forth in the Recitals, (ii) the Specified Existing Events of Default are continuing and have not
been cured by Borrowers or waived, released, extinguished or compromised by Agent or any of
the Lenders; and (iii) as a result of the Specified Existing Events of Default, all of the
Obligations under the Credit Documents, at the election of the Requisite Lenders, could be
declared absolutely and immediately due and owing by Borrowers, and Agent, on behalf of the
Lenders, would have full legal right to exercise any and all of its rights and remedies under the
Credit Documents or otherwise available at law and in equity with respect thereto.
(c) Additional Events of Default. The parties hereto acknowledge,
confirm and agree that (i) the failure of Borrowers to comply with the covenants, conditions and
agreements contained in this Forbearance Agreement and (ii) the failure of the Sponsors to
comply with the covenants, conditions and agreements contained in the Sponsor Agreement,
shall each individually constitute an immediate Event of Default under the Credit Agreement and
the other Credit Documents, and that no such Event of Default shall be subject to any cure or
grace period (except as otherwise expressly set forth herein).
(d) No Waiver. Etc. Borrowers acknowledge and agree that,
notwithstanding the agreement of Agent and Lenders herein to conditionally forbear from
exercising their remedies under the Credit Documents or pursuant to this Forbearance Agreement
in respect of the Specified Events of Default, in no event shall such actions by Agent or Lenders
(including without limitation the execution and delivery by the Administrative Agent of the
Sponsor Agreement) be deemed a waiver, release, extinguishment, compromise or cure of the
Specified Events of Default or of any other current or future Default or Event of Default.
2. Forbearance.
(a) Forbearance. Subject to compliance by Borrowers and, to the
extent applicable, the Sponsor, with the respective Forbearance Conditions (as defined in Section
mbelow), during the period commencing on the date hereof and ending on the earliest to occur
of (w) October 15, 2008, or (x) the occurrence of an Event of Default under the Credit
Agreement (other than the Specified Events of Default), or (y) the date that any default with
respect to, or other failure of, the Forbearance Conditions (as defined in Section 2(b} below), or
(z) any termination of the forbearance under the Second Lien Forbearance Agreement (as
defined in Section 6(d} below} or any modification of such Second Lien Forbearance Agreement
(other than such modifications that are not adverse to the Borrowers, Agent or the Lenders and of
which the Lenders and the Administrative Agent have received written notice) occurs (such
period of time, the "Forbearance Period''), Agent and Lenders agree that they will not, but only
in respect of the Specified Events ofDefault:
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(i) exercise any remedy available to them under the Credit Documents
or under any applicable law to enforce collection from Borrowers of any Obligations or foreclose
upon their security interest(s) in any of the Collateral; or
(ii) accelerate the maturity date of any of the Obligations; or
(iii) institute suit against Borrowers or any of their respective assets.
(b) Conditions to Forbearance. Each of the following conditions shall
constitute a forbearance condition ("Forbearance Condition,), the continuing satisfaction of each
and every one of which shall be a continuing condition to the agreement of Agent and Lenders to
forbear as set forth above in Section 2(a):
(i) Each Credit Party shall duly observe and perform each and every
obligation and covenant on its part to be performed under the Credit Documents (it being
understood and agreed that the Borrowers do not hereby undertake to cure or otherwise remedy
or modify any of the specific acts or omissions that gave rise to or may give rise to any of the
Specified Events of Default), this Forbearance Agreement and any agreement, instrument or
document executed in connection with this Forbearance Agreement including, without limitation,
Borrowers' obligations to pay to Agent, on behalf of the Lenders, all installments of principal,
interest, fees, charges, expenses and premiums, as and when the same are due and payable
pursuant to the Credit Agreement (whether due at stated maturity, upon acceleration or
otherwise); and
(ii) Each of the Sponsors shall duly observe and perform each and
every obligation and covenant on its part to be performed under the Sponsor Agreement; and
(iii) No Default or Event of Default shall exist or shall have occurred
under any of the terms, conditions, provisions or covenants of the Credit Documents, including
this Forbearance Agreement and the Sponsor Agreement, except the Specified Events ofDefault;
and
(iv) Except in respect of the Specified Events of Default, the
representations and warranties contained in the Credit Documents, including this Forbearance
Agreement and any agreement, instrument or document executed in connection herewith or
pursuant hereto shall be true and correct in all material respects as of the date of this Forbearance
Agreement and shall continue to be true and correct in all material respects at all times hereafter
(except to the extent that any such representation or warranty, by its express terms, relates to a
prior specific date or period); and
(v) Borrowers agree to provide to the Agent copies or, in the case of
verbal notices, information in respect of, any and all notices and correspondence of any kind
whatsoever from any equipment or inventory vendor or any other trade creditor with respect to
any default in payment of amounts due such vendor or trade creditor in excess of $10,000, within
three (3) Business Days of the receipt of a.."ly such notice or correspondence; and
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(vi) Neither of the Borrowers nor any of their respective Subsidiaries
shall, during the Forbearance Period, pay to or for the benefit of any Restricted Sponsor Affiliate
any interest (other than any interest that is paid in kind by adding to the principal balance of the
Second Lien Term Loans) on or principal with respect to any of the Loans or any of the Second
Lien Term Loans; provided, that, for the avoidance of doubt, the amount of principal and interest
otherwise due and owing any Restricted Sponsor Affiliate under the terms of the Second Lien
Credit Agreement shall continue to accrue from and after the date hereof in accordance with the
terms of the Second Lien Credit Agreement notwithstanding the provisions set forth herein; and
(vii) Neither of the Borrowers nor any of their respective Subsidiaries
shall, during the Forbearance Period, make any payments (other than reasonable and documented
ordinary course out-of-pocket expenses) to or for the benefit of any Restricted Sponsor Affiliate,
pursuant to any Management Agreement or otherwise; provided, that, for the avoidance of doubt,
the amount of (other than reasonable and documented ordinary course out-of-pocket expenses)
management fees otherwise due and owing any Restricted Sponsor Affiliate under the terms of
the Management Agreement shall continue to accrue from and after the date hereof in
accordance with the terms of the Management Agreement notwithstanding the provisions set
forth herein; and
(viii) No tennination of the Credit Agreement or this Forbearance
Agreement or any provisions thereof or hereof: or any of the other Credit Documents, shall
relieve or discharge the Credit Parties of their respective duties, covenants and obligations under
the Credit Agreement and the other Credit Documents until all Obligations, together with all
interest accrued thereon and the amount of any applicable premium, have been indefeasibly paid
and satisfied in full in immediately available funds on terms and conditions acceptable to the
Lenders. Each Credit Party hereby expressly waives any right to receive notification under
Section 9-611 of the UCC or otherwise of any disposition of any Collateral by the Lenders or
their designees, and waives any rights under Sections 9-620(e) and 9-623 of the UCC.
(c) Payment of the Obligations; Default Rate; Modifications to Credit
Agreement. So long as the Specified Events of Default are continuing, and notwithstanding
anything to the contrary set forth in the Credit Agreement or any other Credit Document (i) the
principal amount of all Loans and Swing Line Loans outstanding as of and after August 29, 2008
shall bear interest, from and after August 29, 2008, at a rate that is 2% per annum in excess of
the rate that is otherwise payable under the Credit Agreement with respect to such Loans and
Swing Line Loans; in the case of Eurodollar Rate Loans, upon the expiration of the
Interest Period in effect at the time any such increase in interest rate is effective such Eurodollar
Rate Loans shall thereupon become Base Rate Loans and shall thereafter bear interest payable
upon demand at a rate which is 2% per annum in excess of the interest rate otherwise payable
under the Credit Agreement for Base Rate Loans, (ii) any un-reimbursed amount paid by the
Issuing Bank in respect of any LC Disbursement as of and after August 29, 2008 shall bear
interest, from and after August 29, 2008, at a rate that is 2% per annum in excess of the rate that
is otherwise payable under the Credit Agreement with respect to each such LC Disbursement,
(iii) the Borrowers shall not be entitled to request or receive any further Revolving Loans, Swing
Line Loans or Letters of Credit, (iv) representatives of the Agent or any Lender may, at any time
during business hours and, with advance notice that is reasonable under the circumstances,
outside of business hours, visit and inspect any of the Borrowers' facilities or locations, and be
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granted access to and have the ability to ask questions of and receive responses from employees
of either of the Borrowers, (v) the Borrowers shall make their respective senior management
personnel available for weekly or other periodic conference calls with the Agent and the Lenders
to discuss the Borrowers' financial results and other matters specified by the Agent or any
Lender, (vi) not later than September 23, 2008, and on a weekly basis thereafter, the Borrowers
shall deliver to the Agent a rolling thirteen-week cash flow forecast, together with a variance
analysis of the variances between projections and actual results for the prior week, in each case
in form and substance acceptable to the Agent and the Lenders, and (vii) the Borrowers shall not
make any Consolidated Capital Expenditures; provided that, the Borrowers may make the
Consolidated Capital Expenditures set forth in Schedule 2(c) hereof during the Forbearance
Period so long as (x) the aggregate amount of all Consolidated Capital Expenditures made by the
Borrowers during the Forbearance Period does not exceed $7,684,250 and (y) the Borrowers
timely comply with each of their obligations under the Credit Documents concerning the creation
and perfection of the Agent's security interest in the assets of the Grantors, including but not
limited to, the vehicles. From and after the date on which any of the Forbearance Conditions
shall cease to be satisfied, the Obligations, at the election of the Agent or the Requisite Lenders,
may be collected by whatever means are authorized by the Credit Documents and by applicable
law. The obligations of the Borrowers under clauses (i)-(vi) of this Section 2(c) shall survive the
expiration or other termination of this Forbearance Agreement.
(d) Effect and Construction of Forbearance: Except as otherwise
expressly provided herein, the Credit Agreement and the other Credit Documents shall remain in
full force and effect in accordance with their respective terms, and neither this Forbearance
Agreement nor the making of any Loans simultaneously herewith or subsequent hereto shall be
construed to: (i) impair the validity, perfection or priority of any lien or security interest
securing the Obligations; (ii) waive or impair any rights, powers or remedies of Agent or Lenders
under the Credit Agreement and the other Credit Documents upon termination of the
Forbearance Period, with respect to the Specified Events of Default or otherwise; (iii) constitute
an agreement by Agent or Lenders or require Agent or Lenders to extend the Forbearance Period
or grant additional forbearance periods, extend the term of the Credit Agreement or the time for
payment of any of the Obligations; (iv) require Agent or Lenders to make any Loans or other
extensions of credit to Borrowers after termination of the Forbearance Period, other than in
Agent's or Lender's sole and absolute discretion; or (v) constitute a waiver of any right of Agent
or Lenders to insist on strict compliance by the Credit Parties with each and every term,
condition and covenant of this Forbearance Agreement and the Credit Documents, except as
expressly otherwise provided herein.
(e) No Course of Dealing or Performance: Borrowers acknowledge
and agree that the agreement of Agent and Lenders to forbear from exercising their rights and
remedies under the Credit Documents with respect to the Specified Events of Default pursuant to
and as reflected in this Forbearance Agreement does not and shall not create (nor shall
Borrowers rely upon the existence of or claim or assert that there exists) any obligation of Agent
or Lenders to consider or agree to any waiver or any further forbearance and, in the event that
Agent or Lenders subsequently agrees to consider any waiver or any further forbearance, neither
the existence of any prior forbearance, nor this Forbearance Agreement, nor any other conduct of
the Agent or Lenders, or any of them, shall be of any force or effect on consideration or decision
with respect to any such requested waiver or forbearance, and neither Agent nor any Lender shall
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have any obligation whatsoever to consider or agree to further forbear or to waive any Default or
Event of Default. In addition, neither (w) the execution and delivery of this Forbearance
Agreement or the Sponsor Agreement, (x) the actions of Agent or Lenders in obtaining or
analyzing any information from Borrowers or Sponsors, whether or not related to consideration
of any waiver, modification, forbearance or alteration of the Credit Agreement or any other
Credit Document, any Default or Event of Default thereunder, or otherwise, including, without
limitation, any discussions or negotiations (heretofore or, if any, hereafter) between Agent or
Lenders and Borrowers or Sponsors regarding any potential waiver, modification, forbearance or
amendment related to the Credit Agreement, (y) any failure of Agent or Lenders to exercise any
of their rights under, pursuant or with respect to the Credit Agreement or any other Credit
Document, nor (z) any action, inaction, waiver, forbearance, amendment or other modification of
or with respect to the Credit Agreement or any other Credit Document, shall, except to the extent
otherwise expressly provided herein or unless evidenced by a subsequent written agreement (and
then only to the extent provided by the express provisions thereof):
(i) constitute a waiver by Agent or any Lender of, or an agreement by
Agent or any Lender to forbear from the exercise of remedies with respect to, any Default or
Event of Default under the Credit Agreement or any other Credit Document;
(ii) constitute a waiver by or estoppel of Agent or any Lender as to the
satisfaction or lack of satisfaction of any covenant, tenn or condition set forth in the Credit
Agreement or any other Credit Document; or
(iii) constitute an amendment to or modification of, or an agreement on
the part of Agent or any Lender to enter into any amendment to or modification of, or an
agreement to negotiate or continue to negotiate with respect to, the Credit Agreement or any
other Credit Document.
3. Representations, Warranties, Covenants and Acknowledgments. To
induce the Lenders and the Agent to enter into this Forbearance Agreement:
(a) Borrowers represent and warrant that, upon and after giving effect
to this Forbearance Agreement, (i) except for the Specified Events of Default, each of the
representations and warranties made by it and the other Credit Parties under the Credit
Documents, other than representations and warranties that speak as of an earlier date, is true and
correct in all material respects with respect to it, (ii) it has the power and authority and is duly
authorized to enter into, deliver and perform this Forbearance Agreement, (iii) this Forbearance
Agreement, the Credit Agreement and each of the other Credit Documents to which it is a party
is the legal, valid and binding obligation thereof, enforceable against it in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally and by general principles
of equity (regardless of whether enforcement is sought in equity or in law), and (iv) the
execution, delivery and performance of this Forbearance Agreement in accordance with its tenns
do not and will not, with the passage of time, the giving of notice or otherwise: (A) require
approval from a Governmental Authority or violate any law or any governmental rule or
regulation relating thereto; (B) conflict with, result in a breach of or constitute a default under (1)
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the organizational and other governing documents thereof; (2) any indenture, material agreement
or other material instrument to which it is a party or by which any of its properties may be
bound, or (3) any approval by a Governmental Authority relating thereto; or (C) result in or
require the creation or imposition of any Lien upon or with respect to any property now owned
or hereafter acquired by it other than Liens permitted under Section 6.2 of the Credit Agreement;
(b) [Intentionally Omitted];
(c) the Credit Parties agree that this Forbearance Agreement is not
intended to be, and is not, a novation, nor, except as modified herein, an amendment of any of
the Credit Documents or any of the Obligations thereunder, and each of the Credit Parties does
hereby reaffirm each of the agreements, covenants, and undertakings made by it under the Credit
Agreement and each and every other Credit Document executed by it in connection therewith or
pursuant thereto, in each case, as modified by this Forbearance Agreement, as if each Credit
Party were making said agreements, covenants and undertakings on the effective date hereof,
except with respect to such agreements, covenants and undertakings which, by their express
terms, are applicable only to the Closing Date or another prior date; and
(d) Borrowers do hereby acknowledge and agree that, as of the date
hereof, no known right of offset, defense, counterclaim, claim, causes of action or objection in
favor of any Credit Party or Sponsor against the Lenders or the Agent exists arising out of or
with respect to (i) the Obligations, this Forbearance Agreement, the Credit Agreement or any of
the other Credit Documents, (ii) any other documents evidencing, securing or in any way relating
to the foregoing, or (iii) the administration or funding of the Loans or the Obligations.
4. Release by Credit Parties.
(a) As a material inducement to Agent and Lenders to enter into this
Forbearance Agreement, to forbear from the exercise of remedies in respect of the Specified
Events of Default for the Forbearance Period, and to provide the Credit Parties' Benefits during
the Forbearance Period, all in accordance with and subject to the terms and conditions of this
Forbearance Agreement and the Credit Agreement, and all of which are to the direct advantage
and benefit of Borrowers, each Credit Party, for itself and its respective successors and assigns,
(i) does hereby remise, release, waive, relinquish, acquit, satisfy and forever discharge Agent and
each Lender, and all of the respective past, present and future officers, directors, employees,
agents, attorneys, representatives, pa..--ticipants, heirs, successors and assigns of Agent and each
Lender (collectively the "Discharged Parties" and each a "Discharged Party''), from any and all
manner of debts, accountings, bonds, warranties, representations, covenants, promises, contracts,
controversies, agreements, liabilities, obligations, expenses, damages, judgments, executions,
actions, suits, claims, counterclaims, demands, defenses, setoffs, objections and causes of action
of any nature whatsoever, whether at law or in equity, either now accrued or hereafter maturing
and whether known or unknown, including, but not limited to, any and all claims which may be
based on allegations of breach of contract, failure to lend, fraud, promissory estoppel, libel,
slander, usury, negligence, misrepresentation, breach of fiduciary duty, bad faith, lender
malpractice, undue influence, duress, tortious interference with contractual relations, interference
with management, or misuse of control which any Credit Party now has or hereafter can, shall or
may have by reason of any matter, cause, thing or event occurring on or prior the date of this
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Forbearance Agreement arising out of, in connection with or relating to (i) the Obligations,
including, but not limited to, the administration or funding thereof, (ii) any of the Credit
Documents or the indebtedness evidenced and secured thereby, and (iii) any other agreement or
transaction between any Credit Party and any Discharged Party relating to or in connection with
the Credit Documents or the transactions contemplated therein; and (b) does hereby covenant
and agree never to institute or cause to be instituted or continue prosecution of any suit or other
form of action or proceeding of any kind or nature whatsoever against any Discharged Party, by
reason of or in connection with any of the foregoing matters, claims or causes of action,
provided, however, that the foregoing release and covenant not to sue shall not apply to any
claims first arising after the date of this Forbearance Agreement with respect to acts, occurrences
or events after the date of this Forbearance Agreement.
(b) Each Credit Party understands, acknowledges and agrees that the
release set forth above may be pleaded as a full and complete defense and may be used as a basis
for an injunction against any action, suit or other proceeding which may be instituted, prosecuted
or attempted in breach of the provisions of such release.
(c) Each Credit Party agrees that no fact, event, circumstance,
evidence or transaction which could now be asserted or which may hereafter be discovered shall
affect in any manner the final and unconditional nature of the release set forth above.
(d) Each Credit Party represents and warrants that each such Person is
the sole and lawful owner of all right, title and interest in and to all of the claims released hereby
and each such Person has not heretofore voluntarily, by operation of law or otherwise, assigned
or transferred or purported to assign or transfer to any person any such claim or any portion
thereof.
5. Acknowledgement and Consent.
(a) Each Guarantor hereby c6nsents to the terms of this Forbearance
Agreement, further hereby confirms and agrees that, notwithstanding the effectiveness of this
Forbearance Agreement, the obligations of such Guarantor under each of the Credit Documents
to which such Guarantor is a party shall not be impaired and each of the Credit Documents to
which such Guarantor is a party are, and shall continue to be, in full force and effect and are
hereby confirmed and ratified in all respects.
(b) Each Guarantor hereby acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Forbearance Agreement, such
Guarantor is not required by the terms of the Credit Agreement or any other Credit Document to
consent to this Forbearance Agreement and the amendment to the Credit Agreement effected
pursuant to this Forbearance Agreement and (ii) nothing in the Credit Agreement, this
Forbearance Agreement or any other Credit Document shall be deemed to require the consent of
such Guarantor to any future amendments to the Credit Agreement.
6. Closing: Conditions Precedent. The effectiveness of this Forbearance
Agreement is subject to the following conditions precedent:
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(a) Delivery of Documents. On or prior to the date hereof, the Agent
shall have received the following documents, all in form and substance acceptable to Agent in its
sole discretion:
(i) originals of this Forbearance Agreement duly executed by
each Borrower, each Guarantor and Requisite Lenders;
(ii) a copy of the resolutions adopted by or on behalf of the
Borrowers, duly authorizing the execution, delivery and performance of this Forbearance
Agreement and all transactions and documents contemplated hereby; and
(iii) such other documents and instruments as the Agent may
reasonably request;
(b) Forbearance Fee and Expenses. The Borrowers shall have paid to
the Agent, for the benefit of the Agent and the Lenders, the Forbearance Fee and, to the Agent
and the respective professionals identified hereunder in Section 6, the Expenses (to the extent
incurred and invoiced or otherwise known as to amount as of the date hereof), in each case, as
defined and referred to in Section 8 hereof;
(c) Evergreen Retainers. The Borrowers shall have paid to (i) Patton
Boggs LLP, counsel to the Agent, an "evergreen" retainer in the amount of $150,000, and (ii)
Ropes & Gray LLP, counsel to certain Term Lenders, an "evergreen" retainer in the amount of
$100,000, in each case to be held for application to future amounts owing und Section 10.2 of the
Credit Agreement or this Forbearance Agreement. Each Borrower acknowledges that its
obligation to pay amounts billed subsequent to the date hereof by such counsel shall be payable
in accordance with Section 8(b) upon receipt by any Borrower of a written invoice so that such
retainers are maintained in an amount equal to, in the case of Patton Boggs LLP, $150,000 and in
the case of Ropes & Gray, $100,000. The Borrowers shall have paid to Broadpoint a deposit in
the amount of$25,000 to be held for application to future amounts owing under Section 10.2 of
the Credit Agreement or this Forbearance Agreement.
(d) No Events of Default. After giving effect to this Forbearance
Agreement, no Default or Event of Default, other than the Specified Events of Default, shall
have occurred and be continuing under the Credit Agreement or any other Credit Document;
(e) Second Lien Loan Forbearance. The Agent shall have received a
fully executed copy of a forbearance agreement with respect to the Second Lien Term Loans in
form and substance satisfactory to the Agent and the Requisite Lenders (the "Second Lien
Forbearance Agreement"), and shall have confirmed, to its satisfaction that such forbearance
agreement is in full force and effect, or will take effect upon the effectiveness of this
Forbearance Agreement.
(t) Borrowers Indemnity. The Borrowers and Broadpoint Capital, Inc.
("Broadooint") shall have entered into an agreement mutually acceptable to each party, the
Agent and the Requisite Lenders pursuant to which the Borrowers agree to indemnify
Broadpoint in connection with certain advisory services being provided by Broadpoint to Ropes
10
492673
& Gray, acting on behalf of the Steering Committee (the "Steering Committee") of certain
Lenders holding Tenn Loan and having LC Exposure under the Credit Agreement; and
(g) Sponsor Agreement Executed By Sponsor. On or prior to the date
hereof, the Administrative Agent shall have received from the Sponsors a copy of the Sponsor
Agreement, in substantially the form set forth on Exhibit A hereto, duly executed by each of the
parties thereto.
7. Additional Acknowledgments and Agreements. Each Credit Party
expressly acknowledges and agrees that the waivers, estoppels and releases in favor of Agent and
each Lender contained in this Forbearance Agreement shall not be construed as an admission of
any wrongdoing, liability or culpability on the part of Agent or any such Lender, or as an
admission by Agent or any such Lender of the existence of any claims by such Credit Party or
the Sponsor against Agent or any such Lender. Each Credit Party further acknowledges and
agrees that, to the extent that any such claims exist, they are of a speculative nature so as to be
incapable of objective valuation and that, to the extent that any such claims may exist and may
have value, such value would constitute primarily "nuisance" value or "leverage" value in
adversarial proceedings between such Credit Party and Agent or any such Lender. In any event,
each Credit Party acknowledges and agrees that the value to such Credit Party of the covenants
and agreements on the part of Agent and each Lender contained in this Forbearance Agreement
substantially and materially exceeds any and all value of any kind or nature whatsoever of any
claims or other liabilities waived or released by such Credit Party hereunder.
8. Forbearance Fee and Expenses.
(a) In consideration of the forbearances of the Agent and Lenders
hereunder, and in further consideration of the provision to the Borrowers of the Credit Parties'
Benefits, the Borrowers agree to pay to the Agent for the benefit of the Lenders a fee in the
amount of $250,000 (the "Forbearance Fee") to be divided among the Lenders in proportion to
the respective Pro Rata Share of each Lender; provided that the Agent and the Lenders agree that
$100,000 of the Forbearance Fee shall be credited toward any fee payable in connection with an
amendment to the Credit Agreement that may be entered into to waive or otherwise address the
Specified Events of Default. Payment in full of the Forbearance Fee shall be a condition
precedent to the effectiveness of this Forbearance Agreement.
(b) Without limiting the generality of Section 10.2 of the Credit
Agreement, the Borrowers agree to pay promptly upon receipt by any Borrower of a written
invoice, but in no event later than five Business Days following such receipt, without
duplication, all of the documented reasonable and actual costs and expenses (collectively the
"Expenses"), and whether incurred prior or subsequent to the date hereof:
(i) of Patton Boggs LLP, in its capacity as counsel to the
Agent;
(ii) of Ropes & Gray LLP, in its capacity as counsel to the
Steering Committee; and
11
492673
(iii) of Broadpoint Capital, Inc., as the financial advisor to
Ropes & Gray, on behalf of the Steering Committee.
The obligations of the Borrowers under this Section 8(b) shall constitute "Obligations" un.der the
Credit Agreement and shall survive the expiration or other termination of the Forbearance
Period.
9. Authorization of Lenders. The Lenders party hereto constituting Requisite
Lenders hereby authorize the Administrative Agent to execute and deliver the Sponsor
Agreement on behalf of the Lenders.
10. Miscellaneous.
(a) Each Borrower agrees to take such further action as the Agent shall
reasonably request in connection herewith to evidence the agreements herein contained. Nothing
in this Forbearance Agreement shall be construed to alter the debtor-creditor relationship
between Borrowers, on the one hand, and the . Lenders and the Agents, on the other. This
Forbearance Agreement does not constitute an amendment o( but instead is a supplement to, the
Credit Documents, and embodies the entire understanding and agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior agreements,
understandings and inducements, whether express or implied, oral or written, in respect of the
matters which are the subject of this Forbearance Agreement.
(b) Any provision of this Forbearance Agreement held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder
of this Forbearance Agreement and the effect thereof shall be confined to the provision so held to
be invalid or unenforceable.
(c) This Forbearance Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which, when so
executed and delivered, shall be deemed to be an original and all of which counterparts, taken
together, shall constitute but one and the same instrument. This Forbearance Agreement shall be
binding upon and inure to the benefit of the successors and permitted assigns of the parties
hereto. This Forbearance Agreement and the Sponsor Agreement shall each be a Credit
Document for all purposes hereunder and under the other Credit Documents. This Forbearance
Agreement is solely for the benefit of the Agent, the Lenders and each of the other parties hereto
and their respective successors and assigns, and no other Person shall have any right, benefit,
priority or interest under, or because of the existence of, this Forbearance Agreement. This
Forbearance Agreement shall be governed by, and construed and enforced in accordance with,
the internal laws ofthe State ofNew York. This Forbearance Agreement may not be modified,
altered or amended except by agreement in writing signed by each of the Credit Parties, the
Agent and Requisite Lenders. Each party hereto acknowledges that it has consulted with counsel
and with such other expert advisors as it deemed necessary in connection with the negotiation,
execution and delivery of this Forbearance Agreement. This Forbearance Agreement shall be
construed without regard to any presumption or rule requiring that it be construed against the
party causing this Forbearance Agreement or any part hereof to be drafted. This Forbearance
12
492673
Agreement is not intended as, nor shall it be construed to create, a partnership or joint venture
relationship between or among any of the parties.
(d) Mutual Waiver of Right of Jury Trial. THE AGENT, LENDERS,
THE BORROWERS AND GUARANTORS EACH HEREBY W AlVES THE RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF,
OR IN ANY WAY RELATING TO: (A) THIS FORBEARANCE AGREEMENT OR ANY OF
THE AGREEMENTS, INSTRUMENTS OR DOCUMENTS REFERRED TO HEREIN; OR (B)
ANY OTHER PRESENT OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN OR
AMONG THEM; (C) ANY CONDUCT, ACTS OR OMISSIONS OF THE AGENT,
LENDERS, BORROWERS OR GUARANTORS OR ANY OF THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS
AFFILIATED WITH THEM; IN EACH OF THE FOREGOING CASES, WHETHER IN
CONTRACT OR TORT OR OTHERWISE.
[the balance of this page is intentionally left blank)
13
492673
! -
IN WITNESS WHEREOF, the Borrowers, the Agent and the Lenders have caused this
Forbearance Agreement to be duly executed and sealed as of the date first above written by their
respective du1y authorized officers or other representatives.
492673
ALLIED SYSTEMS HOLDINGS, INC.

Name: -::rc:n.A. r
Title:
ALLIED SYSTEMS, LTD. (L.P.)

Name: -::rd..-. ,_
Title: . <? f
THE CIT GROUP/BUSINESS CREDIT, INC.,
as ADMINISTRATIVE AGENT AND
COLLATERAL AGENT
By: ___________ _
Name:
Title:
S-1
IN WITNESS WHEUOF, the Borrowers, the Agent and the Lenders have caused this
Forbearance Agreement to be duly executed and sealed as of the date first above written by their
respective duly authorized officers or other representatives.
492673
ALLIED SYSTEMS HOLDINGS, INC.
By:. ______________________ _
Name:
Title:
ALLIED SYSTEMS, LTD. (L.P.)
By:. ______________________ __
Name:
Title:
THE CIT GROUP/BUSINESS CREDIT, INC.,
as ADMINISTRATIVE AGENT AND
COLLATERAL AGENT
~
Title: Assistant Vice President
S-1
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
S-2
492673
FORBEARANCE AGREEMENT
To approve the l
1
orbearancc Agreement
280 FUNDING -)
By: GSO Ca aJ P rlners LP, as J>ortiblio Manager
By: .
Name ..... -
Title. G'BOR.OE FAN
. cHlBP LEGAL OFFICER
S-2
S-2

To approve the Forbearance Agreement
CAPITAl.- FUNDING LLC
artners LP as Collateral Manager
GEORGE FAN
CHIEF LEGAL OFFICER
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
DLACKPORT CAPITAL FUND tTD.
By: Blackstone t.iS)lcssed Securities Advisors L.P., its
Investment n ger
GEORGE FAN
CHIEF LEGAL OFFICER
S-2
492673
64534.000030 EMF _us 2620555Sv8
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name of Institution:
SPECTRUMINVESTMENTPARTNERSLP
B y . S - ~ - : - ~
B y . ~ .
Name:
. Title:
S-2
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name oflnstitution:
DLTD.
By: ___ ___ _
Name: Mic ael artell
Title: Authorized Signatory
S-2
64534.000030 EMF _US 2620555Sv8
SEP. 23. 2008 3:01PM LaSalle Global Trust Services NO. 8191 P. 2

To approve the Forbearance Agreement
Name of Institution:
Grand Cmtnl AIHt Trust, VCM SerltJ
Bya
Name: Bexnatd'Marasa
Title: AS ATI'ORNBY .. JN;PACT
64534.000030 26205555v8
S-2
64534.000030 EMF_ US 2620SSSSv8
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name of Institution:
Madison Park Funding III, Ltd.
By: Credit Suisse Alternative Capital,
Inc., as colJateral manager
CSAM Funding 11
AtriumCDO
CSAM Funding Ill
Atrium II
CSAM FWlding IV
Atrium IV
$11,592,391.30 - Principal. Amount of First
Lien Tenn Loan
B ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Name:
Title:
David H. Lerner
Authorized Slenatory
Sep-22-2008 11:19am From-Aicentra 310 246 3715 T-748 P.OOa/004 F-171
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name of Institution:
Pacifica CDO II, LTD
By: Alcentra Inc. as its Investment Manager
Name: Anurag Kapur
Title: Senior Vice President
S-2
64534.000030 EMF _US 2620SSSSv8
Sep-2Z-Z008 11:19a From-Aicentra 310 246 3115 T-748 P.004/004 F-171
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name oflnstitution:
Pacifica coo nr, LTD
By: Alcentra Inc. as its Investment Manager
Name: Anurag Kapur
Title: Senior Vice President
S-2
64534.000030 EMF_ US 2620SSS5v8
Sep-22-2008 11:18am From-Aicentra
310 246 3715
T-748 P.OOZ/004 F-171
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name oflnstitution:
Westwood CDO II, LID
By: Alcentra Inc. as its Investment Manager
Name: Anurag Kapur
Title: Senior Vice President
h-2
64534.000030 EMF_ US 2620SSSSv8
EI9/22/2BBB Bl:lB 2129492364
CEDARVIEW CAPITAL
PAGE el2/EI2
FORBEARANCE AGREEMENT
To approve the Forbearance Agrieement
Name of Institution:
flJ MP if'>A.fl/fl

Name:
Ti 1
Burton Weinstein
t e: Managing partner
S-2
64534.000030 EMF _US 2620SSSSv8
SEP.24.2008 10:01AM
LaSalle Global Trust Services NO. 8206 P. 2
S-2
64534.000030 BMF _US 2620SSSSv8
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name of Institution:
Grand Central Asset Trust, CEO Series

Name:
Title: Brian Schott
Attomey-1n-fact
-'
S-2
'f\12673
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name of Institution:
Stone Tower Credit Funding 1 Ltd.
By: Stone Tower Fund Management LLC,
As its collateral manager.
l l y : ~
Name:
Title: Mlt'IIAEI w 11EI.PF.IH'Io
\ll'l'J II liUi'FI) Sl< iNATORY
S-2
4':)267.\
To appmve the Forbeurance Agreement
Name of Institution:
Stone Tower CLO VII Ltd.
By: Stone Tower Debt Advisors LI .. C.
As its collateral manager.
By: 4'/:f:;;;(.___.
Name:
'l'1'tle.
\ofi('IJ,\J:J \\' OELJIEIKIO
t\l;THOIHZEO Sl(iNA'IOIW
.. -
S-2
4
1
J267.1
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Natne of ln.::;titution:
Stone Tower CLO V Ltd.
By: Stone Tower Debt Advisors LLC,
As its collateral manager.
I

,,f- / /.! /
_____ _
Name:
Title:
!\4lCIIAEI W DHLPEI!CIO
\UTHOIHZED
S-2
To approve the Forbearance Agreement
Name of Institution:
Stone Tower CLO IV Ltd.
By: Stone Tower Debt Advisors LLC.
As its collateral manager.
S-2
492(t73
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name of Institution:
StQne Tower CLO Ill Ltd.
By: Stone Tower Debt Advisms LLC.
As its collateml manager.
11,-11( 'IIAE! W I >EI .. I'i:IH 'll;
\i!Til! HOi'lt!
492673
To approve the Forbearance Agreement
Name of Institution:
Rampart CLO I Ltd.
By: Stone Towet Debt Advisors LLC,
As ils collateral manager.
// If(
, //:-:? .
By:
Nani'e:
Title:
'1:11t'IIAH W DELPFlRCIO
".In IIOIHZF!i <;l(iNATORY
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name of Jnstitutio11:
Granite Ventures II Ltd.
By: Stone Tower Debt Advisors Ll.C,
As its collutcral manager.
Mh.'ll.\1\1 W
!'!'I fOH li'.E! : '\!(lN;\ TORY
S-2
64534.000030 EMF _US 2620S555v8
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name of Institution:
Redwood Master Fund Ltd.
By:. __ ~ ~ - - - - - - - - - - - - - -
Name: nathan Kolatch
Title: P cipal
S-2
492673
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name of Institution:
Stanfield Amage CLO Ltd.
By: Stanllekl Cepltal Partners. LlC
as Ita Collateral Manager
492673
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name of Institution:
Stanfield AZURE CLO, Ltd.
By: Stanfield Capital Partners, LLC
as its Collateral Manager
B ~ ~
~ : : " ' ChtoPher E. Jansen
Managing Partner
S-2
S-2
492673
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name of Institution:
Stanfield Bristol CLO, Ltd.
By: Stanfield Capital Parlners LLC
as It Colfaleral Manager
By.. __ ~ ~ - - - - - - - - - -
Name:
Title: Chr opher E. Jansen
Managing Partner
S-2
492673
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name oflnstitution:
Stanfield Carrera CLO, ltd.
By: Stanfield Capital Partners LLC
as Its Asset Manager
. {
8-2
492673
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name ofinstitution:
Stanfield Davtona CLO, Ltd
By: Stanfield Capital Par1ners. U..C
as its Collateral Manager
""""
8
E. Jansen
Managing Partner .
S-2
492673
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name of Institution:
SfauffeJa Metarell CLO, Ltd.
Dr. Stanlleld Capital Partners, u.c
as Its Collateral Manager

Managing Parmer
S-2
492673
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name of Institution:
Staufteld Modena CLO, Ltcl
Dr. StaDfield Capital Partners, LtC
as Its Asset Manager
By:. _ _ _ , ; ; ; : ~ r - - - - - -
~ : ~ : Chris pher E. Jansen
Managing Partner
492673
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name oflnstitution:
Staufleld Vantage CLO, Ltd
Dr. Staufteld Capital Parblers
1
LLC
as its Asset Manager
By. __ ~ ~ r - - - - - - - - - -
Name:
Title: Chri pher E. Jansen
Managing Partner
S-2
492673
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name of Institution:
Stanfield Veyron CLO, Ud
By: Stanfield Capital Partners. LLO
as Its Collateral Manager
S-2
492673
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name of Institution:
IGXG Management LLC Series K
By: Stanfield Capital Partners LLC,
as its Sub-Advisor
AM.I\AII E. Jansen
Partner
09/2412008 08:37 FAX
89/23/2888 15:18 12128783594
AVENUE ClO IV. UMfTED
AVENUE CLov, LIMITED
AVEIUE CLJ VI. liMITED
AVENJE CAPITAL GiRC.tP
FORBB.ARANCBAQRBEMBNT
Name oflnatitutlon:
liJ002/002
PAGE 82/82
~ ~ ~ - - - - - - - - - - - - -
Nam.e:
'fitle:
82
RICHARD D'ADDARJO
8EifiORPOinfOUOtWfAGI!ft
S-2
64534.000030 BMF _US 26205,Sv8
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name of Institution:
AMMC VIII, LIMITED
By: American Money Management Corp.,
as Collateral Man ger
Br.=--.
Name:
Title:
S-2
492673
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name of Institution:
Kinney HiJl Credit
Opportunitles Fund. Ltd.
By: Ore Hill Partners LLC
ltif tnvestmcnt Advisor

Name:
Title:
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name oflnstitution:
492673
,, .......
SEP. 22. 2008 2:04PM LaSalle Global Trust Services
NO. 8176 P. 2/2
FORBEARANCB AGREEMENT
To approve the Forbearance Agreement
Name ofinstitati.on:
AVL Loan Funding LLC
B)'
Name: Mo alter
Title: Atlo y-tn.t=ac:t
82
645$4.000030 EMF_ US 2620S5SSv8
492673
FORBEARANCE AGREEMENT
To approve the Forbearance Agreement
Name of Institution:
MCDONNELL LOAN OPPORTUNITY II LTD.
By: McOoooelllnvestment Management, LLC,
as Investment Manager
S-2
B y . ~
Name:
Title:
Kathleen A. Zarn
Vice President
99/23/2008 17:50 FAX
laJ003
To approve the Forbearance Agreement
Name of Institu.tion:
I
64534.00.0030 US
S-2
64S34.000030 EMF _US 2620SSSSv8

To approve the Forbearance Agreement
Name oflnstitution:

Name:
Title:
. ancki Chacko
. Managing Principal
Credit CI!IPitallnvestrnente LLC
On behalf Clf
Teak Hill Master Fund LP
The Foregoing Forbearance Agreement is Hereby
Agreed to and Accepted
as of the Date First Written Above:
AH INDUSTRIES INC.
ALLIED AUTOMOTIVE GROUP, INC.
ALLIED FREIGHT BROKER LLC
ALLIED SYSTEMS (CANADA) COMPANY
AXIS CANADA COMPANY
AXIS GROUP, INC.
COMMERCIAL CARRIERS, INC.
CORDIN TRANSPORTLLC
C T SERVICES, INC.
F.J.BOUTELL DRIVEAWAY LLC
GACSINCORPORATED
QAT, INC.
RMXLLC
TERMINAL SERVICES L;LC
TRANSPORT SUPPORT LLC
AXIS ARETA, LLC
LOGISTIC SYSTEMS, LLC
LOGISTIC TECHNOLOGY, LLC
By: AX International Limited,
its Sole Member and Manager
492673
S-3
j
I
EXHIBIT A
FORM OF SPONSOR AGREEMENT
A-1
492673
EXHIBIT A
FORM OF SPONSOR AGREEMENT
[
A-1
492673
SPONSOR SIDE AGREEMENT
This SPONSOR SIDE AGREEMENT (this "Agreement") is made and entered into as of
this 24th day of September, 2008, by and a.mong The CIT Group/Busi.11ess Credit, Inc. ("CIT''), in
its capacity as Administrative Agent and Collateral Agent for the Lenders (as defined below) (in
such capacity, the "Agent"), Yucaipa America.n Allia.11ce Fund !, LP and Yucaipa Americail
Alliance (Parallel) Fund I, LP (collectively the "Sponsors", and individually a "Sponsor").
RECITALS:
WHEREAS, Allied Systems Holdings, Inc. (formerly known as Allied Holdings, Inc.), a
Delaware corporation ("Holdings"), Allied Systems, Ltd. (L.P.), a Georgia limited partnership
("Systems" and, together with Holdings, the "Borrowers" and individually a "Borrower''), the
Agent, certain subsidiaries of Holdings, the Lenders party thereto, Goldman Sachs Credit
Partners L.P., as Lead Arranger and as Syndication Agent, and the Guarantors named therein,
entered into that certain Amended and Restated First Lien Secured Super-Priority Debtor in
Possession and Exit Credit and Guaranty Agreement, dated as of May 15, 2007 (as amended, the
"Credit Agreement"; capitalized terms used herein and not otherwise defined shall have the
respective meanings ascribed thereto in the Credit Agreement);
WHEREAS, the Borrowers, the Agent and the lenders have entered into that certain
Forbearance Agreement (as amended, the "Forbearance Agreement") made and entered into as
of the date hereof, by and among Holdings, Systems, the Agent and the Lenders party thereto;
WHEREAS, as a condition to the effectiveness of the Forbearance Agreement, the Agent
and the Lenders have required that the Sponsors enter into this Agreement; and
WHEREAS, in consideration of the benefits to the Sponsors of the Credit Parties'
Benefits (as defined in the Forbearance Agreement), the Sponsors are willing to agree to certain
financial and other agreements and commitments set forth in this agreement; and
WHEREAS, the Sponsors acknowledge and agree that the Credit Parties' Benefits are of
material benefit to Sponsors, and that neither Agent nor Lenders were or are under any obligation
to extend to Credit Parties the Credit Parties' Benefits.
NOW, THEREFORE, in consideration of t . ~ e foregoing premises, a.'l.d other good and
valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Representations, Warranties. Covenants and Acknowledgments.
(a) Each Sponsor represents and warrants that: (i) it has the power and
authority and is duly authorized to enter into, deliver and perform this Agreement; (ii) this
Agreement is the legal, valid and binding obligations of such Sponsor, enforceable against it in
accordance with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting c-reditors' rights generally
and by general principles of equity (regardless of whether enforcement is sought in equity or in
law); and (iii) the execution, delivery and performance of this Agreement in accordance with its
492671
terms do not and will not, with the passage of time, the giving of notice or otherwise: (A) require
approval from a Governmental Authority or violate any law or any governmental rule or
regulation relating thereto; (B) conflict with, result in a breach of or constitute a default under
(1) the organizational and other governing documents of such Sponsor; (2) any indenture,
material agreement or other material instrwnent to which it is a party or by which any of its
properties may be bound, or (3) any approval by a Governmental Authority relating thereto; or
(C) result in or require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by.
(b) The Sponsors do hereby acknowledge and agree that, as of the date hereof,
no known right of offset, defense, counterclaim, claim, causes of action or objection in favor of a
Sponsor against the Lenders or the Agent exists arising out of or with respect to any of the Credit
Documents.
2. Reiease of Sponsors.
(a) As a material inducement to Agent and Lenders to enter into the
Forbearance Agreement and this Agreement each of the Sponsors, for itself and its respective
successors and assigns, (i) does hereby remise, release, waive, relinquish, acquit, satisfy and
forever discharge Agent and each Lender, and all of the respective past, present and future
officers, directors, employees, agents, attorneys, representatives, participants, heirs, successors
and assigns of Agent and each Lender (collectively the "Discharged Parties" and each a
"Discharged Party''), from any and all manner of debts, accountings, bonds, warranties,
representations, covenants, promises, contracts, controversies, agreements, liabilities,
obligations, expenses, damages, judgments, executions, actions, suits, claims, counterclaims,
demands, defenses, setoffs, objections and causes of action of any nature whatsoever, whether at
law or in equity, either now accrued or hereafter maturing and whether known or unknown,
including, but not limited to, any and all claims which may be based on allegations of breach of
contract, failure to lend, fraud, promissory estoppel, libel, slander, usury, negligence,
misrepresentation, breach of fiduciary duty, bad faith, lender malpractice, .undue influence,
duress, tortious interference with contractual relations, interference with management, or misuse
of control which either of the Sponsors now has or hereafter can, shall or may have by reason of
any matter, cause, thing or event occurring on or prior the date of this Agreement arising out of,
in connection with or relating to (i) the Obligations, including, but not limited to, the
administration or funding thereof, (ii) any of the Credit Documents or the indebtedness
evidenced and secured thereby, and (iii) any other agreement or transaction between the
Sponsors and any Discharged Party relating to or in connection with the Credit Documents or the
transactions contemplated therein; and (b) does hereby covenant and agree never to institute or
cause to be instituted or continue prosecution of any suit or other form of action or proceeding of
any kind or nature whatsoever against any Discharged Party, by reason of or in connection with
any of the foregoing matters, claims or causes of action, provided, however, that the foregoing
release and covenant not to sue shall not apply to any claims first arising after the date of this
Agreement with respect to acts, occurrences or events after the date of this Agreement.
(b) Each of the Sponsors understands, acknowledges and agrees that the
release set forth above may be pleaded as a full and complete defense and may be used as a basis
for an injunction against any action, suit or other proceeding which may be instituted, prosecuted
or attempted in breach of the provisions of such release.
2
492671
(c) Each of the Sponsors agrees that no fact, event, circumstance, evidence or
transaction which could now be asserted or which may hereafter be discovered shall affect in any
manner the final and unconditional nature of the release set forth above.
(d) Each of the Sponsors represents and warrants that each such Person is the
sole and !awfhl owner of all right, title and interest in and to all of the claims released hereby and
each such Person has not heretofore voluntarily, by operation of law or otherwise, assigned or
transferred or purported to assign or transfer to any person any s ~ c h claim or any portion thereof.
(e) WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542 AND
SIMILAR LAWS. WITHOUT DEROGATING FROM THE NEW YORK CHOICE OF LAW
PROVISION SET FORTH HEREIN; THE SPONSORS ACKNOWLEDGE THAT THEY ARE
FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542,
WHICH PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
SPONSORS BEING AWARE OF SAID CODE SECTION, AND HAVING THE
OPPORTUNITY TO CONSULT LEGAL COUNSEL, HEREBY EXPRESSLY WAIVE ANY
RIGHTS THEY MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER
STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. THE SPONSORS
ACKNOWLEDGE AND AGREE THAT THIS WAIVER IS AN ESSENTIAL AND
MATERIAL TERM OF THIS RELEASE, AND THAT WITHOUT SUCH WAIVER, THIS
RELEASE WOULD NOT HAVE BEEN ENTERED INTO BY THEM. EACH SPONSOR
HERETO UNDERSTANDS THAT THE FACTS IN RESPECT OF WHICH THE RELEASES
AND COVENANTS NOT TO SUE MADE IN THIS RELEASE ARE GIVEN MAY
HEREAFTER TURN OUT TO BE OTHER THAN OR DIFFERENT FROM THE FACTS IN
THAT CONNECTION NOW KNOWN OR BELIEVED BY IT TO BE TRUE AND THAT IT
MAY DISCOVER FACTS DIFFERENT, OR IN ADDITION TO, THOSE FACTS WHICH
THEY NOW BELIEVE TO BE TRUE, AND EACH SPONSOR HEREBY, ON BEHALF OF
ITSELF AND ITS OR HIS AFFILIATES, ACCEPTS AND ASSUMES THE RISK OF THE
DISCOVERY OF NEW FACTS AND THE FACTS TURNING OUT TO BE DIFFERENT
AND AGREES NO SPONSOR OR ANY OTHER RELEASEE IN ANY CAPACITY HAS
ANY DUTY TO DISCLOSE ANY FACTS (WHETHER MATERIAL OR IMMATERIAL,
KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED) TO IT OR ANY OTHER
RELEASOR AND THAT THIS RELEASE SHALL BE AND REMAIN IN ALL RESPECTS
EFFECTIVE AND NOT SUBJECT TO TERMINATION OR RESCISSION BY VIRTUE OF
ANY SUCH DIFFERENCE IN FACTS OF THE DISCOVERY OF NEW FACTS, EVEN IF
ANY FACTS WERE NOT DISCLOSED (WHETHER INTENTIONALLY,
UNINTENTIONALLY OR OTHERWISE) BY ANY RELEASEE TO ANY RELEASOR,
WHICH FACTS, IF KNOWN BY SUCH RELEASOR, MIGHT HAVE CAUSED ANY
SPONSOR TO WHICH SUCH RELEASOR IS i\FFILIATED NOT TO EXECUTE A..l\ID
DELIVER THIS RELEASE. THE SPONSORS INTENTIONALLY WAIVE AND
RELINQUISH ALL RIGHTS AND BENEFITS UNDER ANY LAW OF ANY JURISDICTION
PROVIDING TO THE CONTRARY, OR ANY PUBLIC POLICY THAT WOULD LIMIT OR .
3
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RENDER VOID, VOIDABLE OR UNENFORCEABLE ANY PROVISION OF THE
RELEASE CONTAINED IN THIS RELEASE. THE SPONSORS HAVE INCLUDED THIS
WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542 IN THIS RELEASE IN ORDER
TO PROCURE CERTAINTY IN THEIR AFFAIRS.
EACH OF THE SPONSORS HEREBY ACKNOWLEDGES AND AGREES, ON BEHALF OF
ITSELF AND ITS AFFILIATES, THAT NOTHING CONTAINED IN SECTION 2 OF THIS
AGREEMENT SHALL RELEASE OR DISCHARGE ANY OF THEM FROM THE
LIABILITIES, DUTIES AND OBLIGATIONS UNDERTAKEN OR ASSUMED UNDER
THIS RELEASE, OR FROM ANY OTHER CLAIMS OTHER THAN THE RELEASED
CLAIMS.
3. Additional Acknowledgments and Agreements. Each of the Sponsors expressly
acknowledges and agrees that the waivers, estoppels and releases in favor of Agent and each
Lender contained in this Agreement shall not be construed as an admission of any wrongdoing,
liability or culpability on the part of Agent or any such Lender, or as an admission by Agent or
any such Lender of the existence of any claims by any Credit Party or the Sponsors against
Agent or any such Lender. Each of the Sponsors further acknowledges and agrees that, to the
extent that any such claims exist, they are of a speculative nature so as to be incapable of
objective valuation and that, to the extent that any such claims may exist and may have value,
such value would constitute primarily "nuisance" value or "leverage" value in adversarial
proceedings between such Agent or any such Lender. In any event, each of the Sponsors
acknowledges and agrees that the value to such Sponsor of the covenants and agreements on the
part of Agent and each Lender contained in this Agreement substantially and materially exceeds
any and all value of any kind or nature whatsoever of any claims or other liabilities waived or
released by such Sponsor hereunder.
4. Sponsor Agreements. Each of the Sponsors hereby represents, warrants,
covenants to and for the benefit of, and agrees with, the Agent and the Lenders that:
(a) none of the Restricted Sponsor Affiliates, directly or indirectly, hold any
Obligation whether as a Lender or otherwise or have any voting rights (including the power to
vote or direct voting) in respect of any Obligation or under the Credit Documents, nor have any
such entities entered into, nor will any of the same during the Forbearance Period enter into
either directly or indirectly, any contract, option, arrangement, understanding, relationship or
otherwise which may result in any such Restricted Sponsor Affiliate directly or indirectly, either
during the Forbearance Period or after the termination of the Forbearance Period:
(i) holding any Obligation or becoming a Lender, or
(ii) having any voting rights (including the power to vote or direct
voting) under the Credit Documents, and
(b) the Restricted Sponsor Affiliates shall not, during the Forbearance Period,
directly or indirectly demand, accept or receive any of the following:
4
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{i) any interest {other than interest paid in kind by adding to the
principal balance of the Second Lien Term Loans) on or principal with respect to any of
the Loans or any of the Second Lien Term Loans, or
(ii) any payment or other distribution from either of the Borrowers or
a..11y of their respective Subsidia..ries (other tha..11 the reasonable and documented ordi11a..ry
course out-of-pocket expenses of the Sponsors), pursuant to any Management Agreement
or otherwise.
(c) (i) as of the date hereof, the Sponsors are the only Restricted Sponsor
Affiliates that hold any portion of a Second Lien Term Loan as of the date hereof and (ii) as of
the date hereof, the Sponsors hold Second Lien Term Loans in the aggregate principal amount of
$20,000,000.
5. Miscellaneous.
(a) The Sponsors agree to take such further action as the Agent shall
reasonably request in connection herewith to evidence the agreements herein contained. This
Agreement embodies the entire understanding and agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements, understandings and
inducements, whether express or implied, oral or written, in respect of the matters which are the
subject of this Agreement.
(b) Any provision of this Agreement held by a court of competent jurisdiction
to be invalid or unenforceable shall not impair or invalidate the remainder of this Agreement and
the effect thereof shall be confined to the provision so held to be invalid or unenforceable.
(c) This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which, when so executed and delivered,
shall be deemed to be an original and all of which counterparts, taken together, shall constitute
but one and the same instrument. This Agreement shall be binding upon and inure to the benefit
of the successors and permitted assigns of the parties hereto. This Agreement is solely for the
benefit of the Agent, the Lenders and each of the other parties hereto and their respective
successors and assigns, and no other Person shall have any right, benefit, priority or interest
under, or because of the existence of, this Agreement. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal iaws of the State of New York. Tnis
Agreement may not be modified, altered or amended except by agreement in writing signed by
all of the parties hereto. Each party hereto acknowledges that it has consulted with counsel and
with such other expert advisors as it deemed necessary in connection with the negotiation,
execution and delivery of this Agreement. This Agreement shall be construed without regard to
any presumption or rule requiring that it be construed against the party causing this Agreement
or any part hereof to be drafted. This Agreement is not intended as, nor shall it be construed to
create, a partnership or joint venture relationship between or among any of the parties.
(d) CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS
BROUGHT AGAINST ANY SPONSOR ARISING OUT OF OR RELATING HERETO MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION
IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND
5
492671
DELIVERING THIS AGREEMENT, EACH SPONSOR, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY
AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF
SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;. (C)
AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY
SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO THE APPLICABLE SPONSOR AT THE FOLLOWING
ADDRESS: C/0 THE YUCAIPA COMPANIES, LLC, 9130 WEST SUNSET BOULEVARD,
LOS ANGELES, CALIFORNIA 90069; (D) AGREES THAT SERVICE AS PROVIDED IN
CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER
THE APPLICABLE SPONSOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT,
AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT; AND (E) AGREES THAT AGENT AND LENDERS RETAIN THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING
PROCEEDINGS AGAINST ANY SPONSOR IN THE COURTS OF ANY OTHER
JURISDICTION.
(e) MUTUAL WAIVER OF RIGHT OF JURY TRIAL. THE AGENT AND
SPONSORS EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION
OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO:
(A) THIS AGREEMENT OR ANY OF THE AGREEMENTS, INSTRUMENTS OR
DOCUMENTS REFERRED TO HEREIN; OR (B) ANY OTHER PRESENT OR FUTURE
INSTRUMENT OR AGREEMENT BETWEEN OR AMONG THEM; (C) ANY CONDUCT,
ACTS OR OMISSIONS OF THE AGENT, LENDERS OR SPONSORS OR ANY OF THEIR
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER
PERSONS AFFILIATED WITH THEM; IN EACH OF THE FOREGOING CASES,
WHETHER IN CONTRACT OR TORT OR OTHERWISE.
[the balance of this page is intentionaBy left blank]
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IN WITNESS WHEREOF, the Agent and the Sponsors have caused this Agreement to
be duly executed and sealed as of the date first above written by their respective du1y authorized
officers or other representatives.
492671
THE CIT GROUP/BUSINESS CREDIT, INC.,
as ADMINISTRATIVE AGENT AND
COLLATERAL AGENT
By: ____________ _
Name:
Title:
YUCAIPA AMERICAN ALLIANCE FUND I, LP
B ~ - - - - - - - - - - - - - - - - - -
Name:
Title:
YUCAIPA AMERICAN ALLIANCE (PARALLEL)
FUNDI,LP
By:. _____________________ _
Name:
Title:
7
Schedule 2(c)
Permitted Consolidated Capital Expenditures
Allied Systems Holdings, Inc.
Cash Capital Expenditures
Due by 10/15/2008
Engines
Remanufactured Units
New Tractors
New Trailers
New Headracks
Used PTS Rigs in Canada
Total
492673
11 $217,110
16 $1,144,640
18 $1,822,500
0 $
0 $
90 $4,500,000
$7,684,250
S-2
SPONSOR SIDE AGREEMENT
This SPONSOR SIDE AGREEMENT (this "Agreement") is made and entered into as of
this 24th day of September, 2008, by and among The CIT Group/Business Credit, Inc. ("CIT"), in
its capacity as Administrative Agent and Collateral Agent for the Lenders (as defined below) (in
such capacity, the "Agent"), Yucaipa American Alliance Fund I, LP and Yucaipa American
Alliance (Parallel) Fund I, LP (collectively the "Sponsors", and individually a "Sponsor").
RECITALS:
WHEREAS, Allied Systems Holdings, Inc. (formerly known as Allied Holdings, Inc.}, a
Delaware corporation ("Holdings"}, Allied Systems, Ltd. (L.P.), a Georgia limited partnership
("Systems" and, together with Holdings, the "Borrowers'' and individually a "Borrower''), the
Agent, certain subsidiaries of Holdings, the Lenders party thereto, Goldman Sachs Credit
Partners L.P ; as Lead A.rranger and as Syndication Agent, and the Guarantors named therein,
entered into that certain Amended and Restated First Lien Secured Super-Priority Debtor in
Possession and Exit Credit and Guaranty Agreement, dated as ofMay 15,2007 (as amended, the
"Credit Agreement"; capitalized terms used herein and not otherwise defined shall have the
respective meanings ascribed thereto in the Credit Agreement);
WHEREAS, the Borrowers, the Agent and the lenders have entered into that certain
Forbearance Agreement (as amended, the "Forbearance Agreement") made and entered into as
of the date hereof, by and among Holdings, Systems, the Agent and tqe Lenders party thereto;
WHEREAS, as a condition to the effectiveness of the Forbearance Agreement, the Agent
and the Lenders have required that the Sponsors enter into this Agreement; and
WHEREAS, in consideration of the benefits to the Sponsors of the Credit Parties'
Benefits (as defined in the.Forbearance Agreement),the Sponsors are willing to agree to certain
financial and other agreements and commitments set forth in this agreement; and
WHEREAS, the Sponsors acknowledge and agree that the Credit Parties' Benefits are of
material benefit to Sponsors, and that neither Agent nor Lenders were or are under any obligation
to extend to Credit Parties the Credit Parties' Benefits.
NOW, THEREFORE, in consideration of the foregoing premises, and other good and
valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Representations. Warranties, Covenants and Acknowledgments.
(a) Each Sponsor represents and warrants that: (i) it has the power and
authority and is duly authorized to enter into, deliver and perform this Agreement; (ii) this
Agreement is the legal, valid and binding obligations of such Sponsor, enforceable against it in
accordance with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally
and by general principles of equity (regardless of whether enforcement is sought in equity or in
law); and (iii) the execution, delivery and performance of this Agreement in accordance with its
492671
terms do not and will not, with the passage of time, the giving of notice or otherwise: (A) require
approval from a Governmental Authority or violate any law or any governmental rule or
regulation relating thereto; (B) conflict with, result in a breach of or constitute a default under
(1) the orga.11izational a.11d other governing documents of such Sponsor; {2) ar1y L11denture,
material agreement or other material instrument to which it is a party or by which any of its
properties may be bou.11d, or (3) any approval by a Governmental Authority relating thereto; or
(C) result in or require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by.
(b) The Sponsors do hereby acknowledge and agree that, as of the date hereof,
no known right of offset, defense, counterclaim, claim, causes of action or objection in favor of a
Sponsor against the Lenders or the Agent exists arising out of or with respect to any of the Credit
Documents.
2. Release of Sponsors.
(a) As a material inducement to Agent and Lenders to enter into the
Forbearance Agreement and this Agreement each of the Sponsors, for itself and its respective
successors and assigns, (i) does hereby remise, release, waive, relinquish, acquit, satisfy and
forever discharge Agent and each Lender, and all of the respective past, present and future
officers, directors, employees, agents, attorneys, representatives, participants, heirs, successors
and assigns of Agent and each Lender (collectively the "Discharged Parties" and each a
"Discharged Party''), from any and all manner of debts, accountings, bonds, warranties,
representations, covenants, promises, contracts, controversies, agreem-ents, liabilities,
obligations, expenses, damages, judgments, executions, actions, suits, claims, counterclaims,
demands, defenses, setoffs, objections and causes of action of any nature whatsoever, whether at
law or in equity, either now accrued or hereafter maturing and whether known or unknown,
including, but not limited to, any and all claims w h i ~ h may be based on allegations of breach of
contract, failure to lend, fraud, promissory estoppel, libel, slander, usury, negligence,
misrepresentation, breach of fiduciary duty, bad faith, lender malpractice, undue influence,
duress, tortious interference with contractual relations, interference with management, or misuse
of control which either of the Sponsors now has or hereafter can, shall or may have by reason of
any matter, cause, thing or event occurring on or prior the date of this Agreement arising out of,
in connection with or relating to (i) the Obligations, including, but not limited to, the
administration or funding thereof, (ii) any of the Credit Documents or the indebtedness
evidenced and secured thereby, and (iii) any other agreement or transaction between the
Sponsors and any Discharged Party relating to or in connection with the Credit Documents or the
transactions contemplated therein; and (b) does hereby covenant and agree never to institute or
cause to }?e instituted or continue prosecution of any suit or other form of action or proceeding of
any kind or nature whatsoever against any Discharged Party, by reason of or in connection with
any of the foregoing matters, claims or causes of action, provided, however, that the foregoing
release and covenant not to sue shall not apply to any claims first arising after the date of this
Agreement with respect to acts, occurrences or events after the date of this Agreement.
(b) Each of the Sponsors understa.11ds, acknowledges and agrees that the
release set forth above may be pleaded as a full and complete defense and may be used as a basis
for an injunction against any action, suit or other proceeding which may be instituted, prosecuted
or attempted in breach of the provisions of such release.
2
492671
(c) Each of the Sponsors agrees that no fact, event, circumstance, evidence or
transaction which could now be asserted or which may hereafter be discovered shall affect in any
manner the final and unconditional nature of the release set forth above.
(d) Each of the Sponsors represents and warrants that each such Person 1s the
sole and lawful owner of all right, title and interest in and to all of the claims released hereby and
each such Person has not heretofore voluntarily, by operation of law or otherwise, assigned or
transferred or purported to assign or transfer to any person any such claim or any portion thereof.
(e) WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542 AND
SIMILAR LAWS. WITHOUT DEROGATING FROM THE NEW YORK CHOICE OF LAW
PROVISION SET FORTH HEREIN, THE SPONSORS ACKNOWLEDGE THAT THEY ARE
FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542,
WHICH PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN IDS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
SPONSORS BEING AWARE OF SAID CODE SECTION, AND HAVING THE
OPPORTUNITY TO CONSULT LEGAL COUNSEL, HEREBY EXPRESSLY WAIVE ANY
RIGHTS THEY MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER
STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. THE SPONSORS
ACKNOWLEDGE AND AGREE THAT THIS WAIVER IS AN ESSENTIAL AND
MATERIAL TERM OF THIS RELEASE, AND THAT WITHOUT SUCH WAIVER, THIS
RELEASE WOULD NOT HAVE BEEN ENTERED INTO BY THEM. EACH SPONSOR
HERETO UNDERSTANDS THAT THE FACTS IN RESPECT OF WHICH THE RELEASES
AND COVENANTS NOT TO SUE MADE IN THIS RELEASE ARE GIVEN MAY
HEREAFTER TURN OUT TO BE OTHER THAN OR DIFFERENT FROM THE FACTS IN
THAT CONNECTION NOW KNOWN OR BELIEVED BY IT TO BE TRUE AND THAT IT
MAY DISCOVER FACTS DIFFERENT, OR IN ADDITION TO, THOSE FACTS WHICH
THEY NOW BELIEVE TO BE TRUE, AND EACH SPONSOR HEREBY, ON BEHALF OF
ITSELF AND ITS OR HIS AFFILIATES, ACCEPTS AND ASSUMES THE RISK OF THE
DISCOVERY OF NEW FACTS AND THE FACTS TURNING OUT TO BE DIFFERENT
AND AGREES NO SPONSOR OR ANY OTHER RELEASEE IN ANY CAPACITY HAS
ANY DUTY TO DISCLOSE ANY FACTS (WHETHER MATERIAL OR IMMATERIAL,
KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED) TO IT OR ANY OTHER
RELEASOR AND THAT THIS RELEASE SHALL BE AND REMAIN IN ALL RESPECTS
EFFECTIVE AND NOT SUBJECT TO TERMINATION OR RESCISSION BY VIRTUE OF
ANY SUCH DIFFERENCE IN FACTS OF THE DISCOVERY OF NEW FACTS, EVEN IF
ANY FACTS WERE NOT DISCLOSED (WHETHER INTENTIONALLY,
UNINTENTIONALLY OR OTHERWISE) BY ANY RELEASEE TO ANY RELEASOR,
WHICH FACTS, IF KNOWN BY SUCH RELEASOR, MIGHT HAVE CAUSED ANY
SPONSOR TO WHICH SUCH RELEASOR IS AFFILIATED NOT TO EXECUTE AND
DELIVER THIS RELEASE. THE SPONSORS INTENTIONALLY WAIVE AND
RELINQUISH ALL RIGHTS AND BENEFITS UNDER ANY LAW OF ANY JURISDICTION
PROVIDING TO THE CONTRARY, OR ANY PUBLIC POLICY THAT WOULD LIMIT OR
3
492671
RENDER VOID, VOIDABLE OR UNENFORCEABLE ANY PROVISION OF THE
RELEASE CONTAINED IN THIS RELEASE. THE SPONSORS HA VB INCLUDED THIS
WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542 IN THIS RELEASE IN ORDER
TO PROCURE CERTAINTY IN THEIR .A..FFAIRS.
EACH OF THE SPONSORS HEREBY ACKNOWLEDGES AND AGREES, ON BEHALF OF
ITSELF AND ITS AFFILIATES, THAT NOTHING CONTAINED IN SECTION 2 OF THIS
AGREEMENT SHALL RELEASE OR DISCHARGE ANY OF THEM FROM THE
LIABILITIES, DUTIES AND OBLIGATIONS UNDERTAKEN OR ASSUMED UNDER
THIS RELEASE, OR FROM ANY OTHER CLAIMS OTHER THAN THE RELEASED
CLAIMS.
3. Additional Acknowledgments and Agreements. Each of the Sponsors expressly
acknowledges and agrees that the waivers, estoppels and releases in favor of Agent and each
Lender contained in this Agreement shall not be construed as an admission of any wrongdoing,
liability or culpability on the part of Agent or any such Lender, or as an admission by Agent or
any such Lender of the existence of any claims by any Credit Party or the Sponsors against
Agent or any such Lender. Each of the Sponsors further acknowledges and agrees that, to the
extent that any such claims exist, they are of a speculative nature so as to be incapable of
objective valuation and that, to the extent that any such claims may exist and may have value,
such value would constitute primarily ''nuisance" value or "leverage" value in adversarial
proceedings between such Agent or any such Lender. In any event, each of the Sponsors
acknowledges and agrees that the value to such Sponsor of the covenants and agreements on the
part of Agent and each Lender contained in this Agreement substantially and materially exceeds
any and all value of any kind or nature whatsoever of any claims or other liabilities waived or
released by such Sponsor h e r e ~ d e r .
4. Sponsor Agreements. Each of the Sponsors hereby represents, warrants,
covenants to and for the benefit of, and agrees with, the Agent and the Lenders that:
(a) none of the Restricted Sponsor Affiliates, directly or indirectly, hold any
Obligation whether as a Lender or otherwise or have any voting rights (including the power to
vote or direct voting) in respect of any Obligation or under the Credit Documents, nor have any
such entities entered into, nor will any of the same during the Forbearance Period enter into
either directly or indirectly, any contract, option, arrangement, understanding, relationship or
otherwise which may result in any such Restricted Sponsor Affiliate directly or indirectly, either
during the Forbearance Period or after the termination of the Forbearance Period:
(i) holding any Obligation or becoming a Lender, or
(ii) having any voting rights (including the power to vote or direct
voting) under the Credit Documents, and
(b) the Restricted Sponsor Affiliates shall not, during the Forbearance Period,
directly or indirectly demand, accept or receive any of the following:
4
492671
(i) any interest (other than interest paid in kind by adding to the
principal balance of the Second Lien Term Loans) on or principal with respect to any of
the Loans or any of the Second Lien Term Loans, or
(ii) any payment or other distribution from either of the Borrowers or
any of their respective Subsidiaries (other than the reasonable and documented ordinary
course out-of-pocket expenses of the Sponsors), pursuant to any Management Agreement
or otherwise.
(c) (i) as of the date hereof, the Sponsors are the only Restricted Sponsor
Affiliates that hold any portion of a Second Lien Term Loan as of the date hereof and (ii) as of
the date hereof, the Sponsors hold Second Lien Term Loans in the aggregate principal amount of
$20,000,000.
5. Miscellaneous.
(a) The Sponsors agree to take such further action as the Agent shall
reasonably request in connection herewith to evidence the agreements herein contained. This
Agreement embodies the entire understanding and agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements, understandings and
inducements, whether express or implied, oral or written, in respect of the matters which are the
subject of this Agreement.
(b) Any provision of this Agreement held by a court of competent jurisdiction
to be invalid or unenforceable shall not impair or invalidate the remainder of this Agreement and
the effect thereof shall be confined to the provision so held to be invalid or unenforceable.
(c) This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which, when so executed and delivered,
shall be deemed to be an original and all of which counterparts, taken together, shall constitute
but one and the same instrument. This Agreement shall be binding upon and inure to the benefit
of the successors and permitted assigns of the parties hereto. This Agreement is solely for the
benefit of the Agent, the Lenders and each of the other parties hereto and their respective
successors and assigns, and no other Person shall have any right, benefit, priority or interest
under, or because of the existence of, this Agreement. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of New York. This
Agreement may not be modified, altered or amended except by agreement in writing signed by
all of the parties hereto. Each party hereto acknowledges that it has consulted with counsel and
with such other expert advisors as it deemed necessary in connection with the negotiation,
execution and delivery of this Agreement. This Agreement shall be construed without regard to
any presumption or rule requiring that it be construed against the party causing this Agreement
or any part hereof to be drafted. This Agreement is not intended as, nor shall it be construed to
create, a partnership or joint venture relationship between or among any of the parties.
(d) CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS
BROUGHT AGAINST ANY SPONSOR ARISING OUT OF OR RELATING HERETO MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION
IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND
5
492671
DELIVERING THIS AGREEMENT, EACH SPONSOR, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY
AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF
SUCH COURTS; (B) W A!VES ANY DEFENSE OF FORUM NON CONVENIENS; (C)
AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY
SUCH COURT MAY BE W_DE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO THE APPLICABLE SPONSOR AT THE FOLLOWING
ADDRESS: C/0 THE YUCAIPA COMPANIES, LLC, 9130 WEST SUNSET BOULEY ARD,
LOS ANGELES, CALIFORNIA 90069; (D) AGREES THAT SERVICE AS PROVIDED IN
CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER
THE APPLICABLE SPONSOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT,
AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT; AND (E) AGREES THAT AGENT AND LENDERS RETAIN THE RIGHT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING
PROCEEDINGS AGAINST ANY SPONSOR IN THE COURTS OF ANY OTHER
JURISDICTION.
(e) MUTUAL WAIVER OF RIGHT OF JURY TRIAL. THE AGENT AND
SPONSORS EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION
OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO:
(A) THIS AGREEMENT OR ANY OF THE AGREEMENTS, INSTRUMENTS OR
DOCUMENTS REFERRED TO HEREIN; OR (B) ANY OTHER PRESENT OR FUTURE
INSTRUMENT OR AGREEMENT BETWEEN OR AMONG THEM; (C) ANY CONDUCT,
ACTS OR OMISSIONS OF THE AGENT, LENDERS OR SPONSORS OR ANY OF THEIR
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER
PERSONS AFFILIATED WITH THEM; IN EACH OF THE FOREGOING CASES,
WHETHER IN CONTRACT OR TORT OR OTHERWISE.
[the balance of this page is intentionally left blank]
6
492671
IN WITNESS WHEREOF, the Agent and the Sponsors have caused this Agreement to
be duly executed and sealed as of the date first above written by their respective duly authorized
officers or other representatives.
492671
THE CIT GROUP/BUSINESS CREDIT, INC.,
as ADMINISTRATIVE AGENT AND
COLLATERAL AGENT
B ~
Name: BarbaraJ. co
Title: Assistant Vice President
YUCAIPA AMERICAN ALLIANCE FUND I, LP
By:. ______________________ _
Name:
Title:
YUCAIPA AMERICAN ALLIANCE (PARALLEL)
FUNDI,LP
By:. ____________________ __
Name:
Title:
7
IN WITNESS WHEREOF, the Agent and the Sponsors have caused this Agreement to
be duiy executed and seeded as of the date first above written by their respective duly authorized
officers or other representatives.
492671
THE CIT GROUP/BUSINESS CREDIT, INC.,
as ADMINISTRATIVE AGENT AND
COLLATERAL AGENT
By: ___________ _
Name:
Title:
YUCAIPA AMERICAN ALLIANCE FUND I, LP

Title: Vice President

Name: obert P. Bermingham
Title: Vice President
7
AMENDMENTTOFORBEARANCEAGREEMENT
TillS AMENDMENT TO FORBEARANCE AGREEMENT (this "Agreement") is made and
entered into effective as of the 23rd day of October, 2008, by and among Allied Systems Holdings, Inc.
(formerly known as Allied Holdings, Inc.), a Delaware corporation ("Holdings"), Allied Systems, Ltd.
(L.P.), a Georgia limited partnership ("Systems" and, together with Holdings, the "Borrowers" and
individually a "Borrower"), The CIT Group/Business Credit, Inc. ("CIT"), as Administrative Agent and
Collateral Agent (collectively, the "Agent"), and the Lenders party hereto. Certain direct and indirect
subsidiaries of Holdings (including the Guarantors under the Credit Agreement (as defined below)) have
joined in the execution hereof to acknowledge and consent to the terms and conditions of this Agreement.
RECITALS:
WHEREAS, Borrowers, the Agent, certain subsidiaries of Holdings, the Lenders party thereto,
Goldman Sachs Credit Partners L.P ., as Lead Arranger and as Syndication Agent, and the Guarantors
named therein, entered into that certain Amended and Restated First Lien Secured Super-Priority Debtor
in Possession and Exit Credit and Guaranty Agreement, dated as of March 30, 2007 and as amended and
restated as of May 15, 2007 (as amended from time to time, the "Credit Agreement"; capitalized terms
used herein and not otherwise defmed shall have the respective meanings ascribed thereto in the Credit
Agreement); and
WHEREAS, Borrowers, the Agent, and certain of the Lenders entered into that certain
Forbearance Agreement dated September 24, 2008 (as amended, the "Forbearance Agreement") on
account of certain continuing Specified Events of Defaults (as defined in the Forbearance Agreement);
WHEREAS, Borrowers desire that the Agent and Lenders continue to forbear from exercising
remedies of suit, repossession and foreclosure otherwise available to the Agent, on behalf of the Lenders,
under the Credit Documents in respect of the Specified Events of Default; and
WHEREAS, the Agent and Lenders are willing to extend the Forbearance Period (as defined in
the Forbearance Agreement), on the terms and conditions contained herein, each of which term and
condition, individually and in the aggregate, and including the performance thereof by Credit Parties, and
the performance by the Sponsors (as defined in the Forbearance Agreement) of the Sponsor Side
Agreement substantially in the form of Exhibit A attached hereto and delivered contemporaneously
herewith (the "Sponsor Side Agreement"), constitute the consideration to the Agent and Lenders for
entering into this Agreement, and in the absence of any of which the Agent and Lenders would not have
entered into this Agreement or otherwise continue to extend to Borrowers the Credit Parties' Benefits (as
defined in the Forbearance Agreement); and
WHEREAS, Borrowers acknowledge and agree that the Credit Parties Benefits hereunder are of
immediate and material benefit, financial and otherwise, to Borrowers, and that neither the Agent nor
Lenders were or are under any obligation to continue to extend to Borrowers the Credit Parties Benefits
provided under the Forbearance Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, and other good and valuable
consideration, the receipt and legal sufficiency of which is hereby acknowledged, the parties hereby agree
as follows:
1. Acknowledgments and Agreements by Borrowers.
(a) Claims and Liens. Borrowers hereby acknowledge and agree that (i) as of the close of
business on October 20, 2008, (A) the outstanding aggregate respective principal balances of (1) the
024198.0110\495079.05
Revolving Loans totaled $34,500,000 and (2) the Term Loans totaled $177,300,000, in each case
exclusive of accrued interest, costs and attorney's fees chargeable to Borrowers under the Credit
Documents, and (B) the LC Usage totaled $44,286,529; and (ii) all Obligations of Borrowers to the Agent
and the Lenders are secured by validly perfected first priority security interests in substantially all assets
of Bcrro\vers, except to the extent tb.at the Credit DoctL"llents expressly penr..it that such assets are not
required to be so secured or perfected.
(b) Specified Events of Default. Borrowers hereby further acknowledge and agree that
(i) the Specified Existing Events of Default have occurred, (ii) the Specified Existing Events of Default
are continuing and have not been cured by Borrowers or waived, released, extinguished or compromised
by the Agent or any of the Lenders; and (iii) as a result of the Specified Existing Events of Default, all of
the Obligations under the Credit Documents, at the election of the Requisite Lenders, could be declared
absolutely and immediately due and owing by Borrowers, and the Agent, on behalf of the Lenders, would
have full legal right to exercise any and all of its rights and remedies under the Credit Documents or
otherwise available at law and in equity with respect thereto.
(c) Additional Events ofDefault. The parties hereto acknowledge, confirm and agree that (i)
the failure of Borrowers to comply with the covenants, conditions and agreements contained in the
Forbearance Agreement, as amended by this Agreement, and (ii) the failure of the Sponsors to comply
with the covenants, conditions and agreements contained in the Sponsor Side Agreement, shall each
individually constitute an immediate Event of Default under the Credit Agreement and the other Credit
Documents, and that no such Event of Default shall be subject to any cure or grace period (except as
otherwise expressly set forth herein).
(d) No Waiver. Etc. Borrowers acknowledge and agree that, notwithstanding the agreement
of the Agent and Lenders herein to conditionally forbear from exercising their respective remedies under
the Credit Documents or pursuant to the Forbearance Agreement (as amended by this Agreement) in
respect of the Specified Events of Default, in no event shall such actions by the Agent or Lenders
(including without limitation the execution and delivery by the Agent of the Sponsor Side Agreement) be
deemed a waiver, release, extinguishment, compromise or cure of the Specified Events of Default or of
any other current or future Default or Event of Default.
(e) Effect and Construction of Forbearance. Except as otherwise expressly provided in this
Agreement, the Credit Agreement and the other Credit Documents (which defined term shall herein
include the Forbearance Agreement) shall remain in full force and effect in accordance with their
respective terms, and neither this Agreement nor the making of any Loans simultaneously herewith or
subsequent hereto shall be construed to: (i) impair the validity, perfection or priority of any lien or
security interest securing the Obligations; (ii) waive or impair any rights, powers or remedies of the Agent
or Lenders ux1der the Credit Agreement and the other Credit Documents upon termination of the
Forbearance Period, with respect to the Specified Events of Default or otherwise; (iii) constitute an
agreement by the Agent or Lenders or require the Agent or Lenders to further extend the Forbearance
Period or grant additional forbearance periods, extend the term of the Credit Agreement or the time for
payment of any of the Obligations; (iv) require the Agent or Lenders to make any Loans or other
extensions of credit to Borrowers after termination of the Forbearance Period, other than in the Agent's or
Lender's sole and absolute discretion; or (v) constitute a waiver of any right of the Agent or Lenders to
insist on strict compliance by the Credit Parties with each and every term, condition and covenant of this
Agreement and the Credit Documents, except as expressly otherwise provided herein.
(f) No Course of Dealing or Performance. Borrowers acknowledge and agree that (i) the
agreement of the Agent and Lenders to forbear from exercising their respective rights and remedies under
the Credit Documents with respect to the Specified Events of Default pursuant to and as reflected in the
Forbearance Agreement (as amended by this Agreement) does not, and shall not create (nor shall
2
024198.0110\495079.05
Borrowers rely upon the existence of or claim or assert that there exists), any obligation of the Agent or
Lenders to consider or agree to any waiver or any further forbearance; (ii) in the event that the Agent or
Lenders subsequently agree to consider any waiver or any further forbearance, neither the existence of
any prior forbearance, nor the Forbearance Agreement, nor any other conduct of the Agent or Lenders, or
any of them, shall be of any force or effect on consideration or decision with respect to any such
requested waiver or forbearance; and (iii) neither Agent nor any Lender shall have any obligation
whatsoever to consider or agree to further forbear or to waive any Default or Event of Default. In
addition, neither (w) the execution and delivery of the Forbearance Agreement, this Agreement or the
Sponsor Side Agreement, (x) the actions of Agent or Lenders in obtaining or analyzing any information
from Borrowers or Sponsors, whether or not related to consideration of any waiver, modification,
forbearance or alteration of the Credit Agreement or any other Credit Document, any Default or Event of
Default thereunder, or otherwise, including, without limitation, any discussions or negotiations
(heretofore or, if any, hereafter) between Agent or Lenders and Borrowers or Sponsors regarding any
potential waiver, modification, forbearance or amendment related to the Credit Agreement, (y) any failure
of the Agent or Lenders to exercise any of their respective rights under, pursuant or with respect to the
Credit Agreement or any other Credit Document, nor (z) any action, inaction, waiver, forbearance,
amendment or other modification of or with respect to the Credit Agreement or any other Credit
Document, shall, except to the extent otherwise expressly provided in the Forbearance Agreement (as
amended by this Agreement) or unless evidenced by a subsequent written agreement (and then only to the
extent provided by the express provisions thereof):
(i) constitute a waiver by the Agent or any Lender of, or an agreement by the Agent
or any Lender to forbear from the exercise of remedies with respect to, any Default or Event of
Default under the Credit Agreement or any other Credit Document;
(ii) constitute a waiver by or estoppel of the Agent or any Lender as to the
satisfaction or lack of satisfaction of any covenant, term or condition set forth in the Credit
Agreement or any other Credit Document; or
(iii) constitute an amendment to or modification of, or an agreement on the part Of the
Agent or any Lender to enter into any amendment to or modification of, or an agreement to
negotiate or continue to negotiate with respect to, the Credit Agreement or any other Credit
Document.
2. Amendment to Forbearance Agreement. From and after the Effective Date (as
defmed below), the Agent, Borrowers and Lenders agree as follows:
(a) That "October 15, 2008" as it appears in Section 2(a) of the Forbearance Agreement shall
be replaced with, and shall now read, as follows: ''November 15, 2008";
(b) An additional Forbearance Condition shall be added at the end of Section 2(b) of the
Forbearance Agreement to read as follows:
''Not later than October 27, 2008, Borrowers shall prepare and deliver to the Agent its
downside model to its current business plan for the Credit Parties for the period
beginning January 1, 2009 and ending December 31, 2009 ."
(c) That the phrase "(vii) the Borrowers shall not make any Consolidated Capital
Expenditures; provided that, the Borrowers may make the Consolidated Capital Expenditures set forth in
Schedule 2(c) hereof during the Forbearance Period so long as (x) the aggregate amount of all
Consolidated Capital Expenditures made by the Borrowers during the Forbearance Period does not
3
024198.0110\495079.05
exceed $7,684,250" as it appears in Section 2(c) of the Forbearance Agreement shall be replaced with,
and shall now read, as follows:
"(vii) Borrowers shall not make any Consolidated Capital Expenditures not financed
with the proceeds of permitted under Section 6.1(1) of the Credit
Agreement, provided that Borrowers may make such Consolidated Capital Expenditures
during the Forbearance Period so long as (x) the aggregate amount of all such
Consolidated Capital Expenditures made by Borrowers during the Forbearance Period
does not exceed (A) with respect to the portion of the Forbearance Period ending on
October 15, 2008, $5,994,000 and (B) with respect to the portion of the Forbearance
Period beginning on October 16,2008 and ending on November 15,2008, $6,000,000";
(d) Schedule 2(c) of the Forbearance Agreement shall be amended, restated and replaced
with Schedule 2(c) attached hereto;
(e) That "$100,000" as it appears in Section 8(a) of the Forbearance Agreement shall be
replaced with, and shall now read, as follows: "$0.00";
(f) All references to the term "Forbearance Agreement" as it appears in the Forbearance
Agreement shall be deemed to refer to the Forbearance Agreement, as. amended by this Agreement; and
(g) All references to the term "Sponsor Agreement" as that term is currently defmed in the
Forbearance Agreement shall instead mean: the sponsor side agreement, dated September 24, 2008,
among Yucaipa American Alliance Fund I, LP, Yucaipa American Alliance (Parallel) Fund I, LP
(collectively, "Sponsors") and the Agent, as that agreement may be amended, restated, replaced,
supplemented or extended from time to time (including, by way of, the Sponsor Side Agreement).
3. Representations, Warranties, Covenants and Acknowledgments. To induce the
Lenders and the Agent to enter into this Agreement:
(a) Borrowers represent and warrant that, upon and after giving effect to this
Agreement, (i) except for the Specified Events of Default, each of the representations and warranties
made by it and the other Credit Parties under the Credit Documents, other than representations and
warranties that speak as of an earlier date, is true and correct in all material respects with respect to it, (ii)
it has the power and authority and is duly authorized to enter into, deliver and perform this Agreement,
(iii) this Agreement, the Credit Agreement and each of the other Credit Documents to which it is a party
is the legal, valid and binding obligation thereof, enforceable against it in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or
other similar laws affecting crenitors' rights generally a11d by general principles of equity (regardless of
whether enforcement is sought in equity or in law), and (iv) the execution, delivery and performance of
this Agreement in accordance with its terms do not and will not, with the passage of time, the giving of
notice or otherwise: (A) require approval from a Governmental Authority or violate any law or any
governmental rule or regulation relating thereto; (B) conflict with, result in a breach of or constitute a
default under (1) the organizational and other governing documents thereof; (2) any indenture, material
agreement or other material instrument to which it is a party or by which any of its properties may be
bound, or (3) any approval by a Governmental Authority relating thereto; or (C) result in or require the
creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired
by it other than Liens permitted under Section 6.2 of the Credit Agreement;
(b) the Credit Parties agree that this Agreement is not intended to be, and is
not, a novation, nor, except as modified herein, an amendment of any of the Credit Documents or any of
the Obligations thereunder, and each of the Credit Parties does hereby reaffrrm each of the agreements,
4
024198.0110\495079.05
covenants, and undertakings made by it under the Credit Agreement and each and every other Credit
Document executed by it in connection therewith or pursuant thereto, in each case, as modified by the
Forbearance Agreement and this Agreement, as if each Credit Party were making said agreements,
covenants and undertakings on the Effective Date hereof, except with respect to such agreements,
covenants and undertakings which, by their express terms, are applicable only to the Closing Date or
another prior date; and
(c) Borrowers do hereby acknowledge and agree that, as of the date hereof,
no known right of offset, defense, counterclaim, claim, causes of action or objection in favor of any
Credit Party or any Sponsor against the Lenders (or any of them) or the Agent exists arising out of or with
respect to (i) the Obligations, the Forbearance Agreement, the Credit Agreement or any of the other
Credit Documents, (ii) any other documents evidencing, securing or in any way relating to the foregoing,
or (iii) the administration or funding of the Loans or the Obligations.
4. Release by Credit Parties.
(a) As a material inducement to the Agent and Lenders to enter into this
Agreement, to continue to forbear from the exercise of remedies in respect of the Specified Events of
Default for the Forbearance Period, and to provide the Credit Parties' Benefits during the Forbearance
Period, all in accordance with and subject to the terms and conditions of the Forbearance Agreement (as
amended and supplemented by this Agreement) and the Credit Agreement, and all of which are to the
direct advantage and benefit of Borrowers, each Credit Party, for itself and its respective successors and
assigns, (i) does hereby remise, release, waive, relinquish, acquit, satisfy and forever discharge the Agent
and each Lender, and all of the respective past, present and future officers, directors, employees, agents,
attorneys, representatives, participants, heirs, successors and assigns of the Agent and each Lender
(collectively the "Discharged Parties" and ~ c h a "Discharged Party"), from any and all manner of debts,
accountings, bonds, warranties,. representations, covenants, promises, contracts, controversies,
agreements, liabilities, obligations, expenses, damages, judgments, executions, actions, suits, claims,
counterclaims, demands, defenses, setoffs, objections and causes of action of any nature whatsoever,
whether at law or in equity, either now accrued or hereafter maturing and whether known or unknown,
including, but not limited to, any and all claims which may be based on allegations of breach of contract,
failure to lend, fraud, promissory estoppel, libel, slander, usury, negligence, misrepresentation, breach of
fiduciary duty, bad faith, lender malpractice, undue influence, duress, tortious interference with
contractual relations, interference with management, or misuse of control which any Credit Party now has
or hereafter can, shall or may have by reason of any matter, cause, thing or event occurring on or prior the
date of this Agreement arising out of, in connection with or relating to (i) the Obligations, including, but
not limited to, the administration or funding thereof, (ii) any of the Credit Documents or the indebtedness
evidenced and secured thereby, and (iii) any other agreement or transaction between any Credit Party and
any Discharged Party relating to or in connection with the Credit Documents or the transactions
contemplated therein; and (b) does hereby covenant and agree never to institute or cause to be instituted
or continue prosecution of any suit or other form of action or proceeding of any kind or nature whatsoever
against any Discharged Party, by reason of or in connection with any of the foregoing matters, claims or
causes of action, provided, however, that the foregoing release and covenant not to sue shall not apply to
any claims first arising after the date of this Agreement with respect to acts, occurrences or events after
the date of this Agreement.
(b) Each Credit Party understands, acknowledges and agrees that the release
set forth above may be pleaded as a full and complete defense and may be used as a basis for an
injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in
breach of the provisions of such release.
s
024198.0110\495079.05
(c) Each Credit Party agrees that no fact, event, circumstance, evidence or
transaction which could now be asserted or which may hereafter be discovered shall affect in any manner
the final and unconditional nature of the release set forth above.
(d) Each Credit Par-ty represents and warrants that each such Person is the
sole and lawful owner of all right, title and interest in and to all of the claims released hereby and each
such Person has not heretofore voluntarily, by operation of law or othenvise, assigned or transferred or
purported to assign or transfer to any person any such claim or any portion thereof.
5. Acknowledgment and Consent.
(a) Each Guarantor hereby consents to the tenns of this Agreement, further
hereby confirms and agrees that, notwithstanding the effectiveness of this Agreement, the obligations of
such Guarantor under each of the Credit Documents to which such Guarantor is a party shall not be
impaired and each of the Credit Documents to which such Guarantor is a party are, and shall continue to
be, in full force and effect and are hereby confirmed and ratified in all respects.
(b) Each Guarantor hereby acknowledges and agrees that (i) notwithstanding
the conditions to effectiveness set forth in this Agreement, such Guarantor is not required by the terms of
the Credit Agreement or any other Credit Document to consent to this Agreement and the amendment to
the Credit Agreement effected pursuant to this Agreement and (ii) nothing in the Credit Agreement, this
Agreement or any other Credit Document shall be deemed to require the consent of such Guarantor to any
future amendments to the Credit Agreement.
6. Conditions Precedent. The effectiveness of this Agreement as against the Agent
and the Lenders is subject to the satisfaction of the following conditions precedent, unless such conditions
are waived by the Agent in writing (the date on which such conditions are satisfied or waived being the
"Effective Date"):
(a) Delivery of Documents. On or prior to the date hereof, the Agent shall
have received the following documents, all in form and substance acceptable to Agent in its sole
discretion:
(i) this Agreement duly executed by each Borrower, each Guarantor
and the Requisite Lenders; and
(ii) such other documents and instruments as the Agent may
reasoP..ab!y request.
(b) Payment of November 1st Interest Payment. Borrowers shall have paid
to Agent the sum of the amount of accrued but unpaid interest on the Obligations plus the amount of fees
payable under Section 2.11(e) of the Credit Agreement, in each case, that would otherwise be due and
payable under the Credit Agreement on November 1, 2008, and Borrowers agree that, for purposes of this
Section 6(b), such sum equals $3,499,172.45 (for avoidance of doubt, it is agreed that if, as calculated on
November 1, 2008, the sum of the interest and fees actually payable under the Credit Agreement for the
preceding Fiscal Quarter does not equal the amount paid under this Section 6(b), Agent shall notify
Borrowers of such actual interest and fees along with the amount of any overpayment, which
overpayment shall reduce amounts hereafter coming due under the Credit Agreement with the application
to such amounts being determined by Agent, or the amount of any underpayment, which underpayment
shall be due and payable as provided in such notice).
6
024198.0110\495079.05
(c) No Events of Default. After giving effect to this Agreement, no Default
or Event of Default, other than the. Specified Events of Default, shall have occurred and be continuing
under the Credit Agreement or any other Credit Document.
(d) Second Lien Loan Forbearance. The Agent shall have received a fully
executed copy of a forbearance agreement with respect to the Second Lien Term Loans in form and
substance satisfactory to the Agent and the Requisite Lenders (the "Second Lien Forbearance
Agreement"), and shall have confirmed, to its satisfaction that such Second Lien Forbearance Agreement
is in full force and effect, or will take effect upon the effectiveness of this Agreement.
(e) Sponsor Side Agreement Executed by Sponsor. On or prior to the date
hereof, the Agent shall have received from the Sponsors a copy of the Sponsor Side Agreement duly
executed by each of the parties thereto.
7. Additional Acknowledgments and Agreements. Each Credit Party expressly
acknowledges and agrees that the waivers, estoppels and releases in favor of the Agent and each Lender
contained in this Agreement shail not be construed as an admission of any wrongdoing, liability or
culpability on the part of the Agent or any such Lender, or as an admission by the Agent or any such
Lender of the existence of any claims by such Credit Party or the Sponsor against the Agent or any such
Lender. Each Credit Party further acknowledges and agrees that, to the extent that any such claims exist,
they are of a speculative nature so as to be incapable of objective valuation and that, to the extent that any
such claims may exist and may have value, such value. would constitute primarily "nuisance" value or
"leverage" value in adversarial proceedings between such Credit Party and the Agent or any such Lender.
In any event, each Credit Party acknowledges and agrees that the value to such Credit Party of the
covenants and agreements on the part of the Agent and each Lender contained in this Agreement
substantially and materially exceeds any and all value of any kind or nature whatsoever of any claims or
other liabilities waived or released by such Credit Party hereunder. Each Credit Party hereby expressly
waives any right to receive notification under Section 9-611 of the UCC or otherwise of any disposition
of any Collateral by the Agent, the Lenders or their respective designees and waives any rights under
Sections 9-620 and 9-623 of the UCC.
8. Authorization of Lenders. The Lenders party hereto constituting Requisite
Lenders hereby authorize the Agent to execute and deliver this Agreement and the Sponsor Side
Agreement on behalf of the Lenders and ratify any prior execution and delivery thereof. To induce the
Agent to execute and deliver this Agreement and the Sponsor Side Agreement, each Lender ratifies and
confirms its obligations under, and the immunities and exculpatory provisions accruing to the Agent
under, the terms of Section 9 of the Credit Agreement.
9. Miscellaneous.
(a) Each Borrower agrees to take such further action as the Agent shall
reasonably request in connection herewith to evidence the agreements herein contained. Nothing in this
Agreement shall be construed to alter the debtor-creditor relationship between Borrowers, on the one
hand, and the Lenders and the Agents, on the other. This Agreement does not constitute an amendment of,
but instead is a supplement to, the Credit Documents, and embodies the entire understanding and
agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior
agreements, understandings and inducements, whether express or implied, oral or written, in respect of
the matters which are the subject of this Agreement.
(b) Any provision of this Agreement held by a court of competent
jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Agreement
and the effect thereof shall be confined to the provision so held to be invalid or unenforceable.
7
024198.0110\495079.05
(c) This Agreement may be executed in any number of counterparts and by
different pat-ties hereto in separate counterparts, each of which, when so executed and delivered, shall be
deemed to be an original and all of which counterparts, taken together, shall constitute but one and the
same instrument. This Agreement shall be binding upon and inure to the benefit of the successors and
peuuitted assigns of the parties hereto. Tnis Agreement and the Sponsor Side Agreement shall each be a
Credit Document for all purposes hereunder and under the other Credit Documents. This Agreement is
solely for the benefit of the Agent, the Lenders and each of the other parties hereto and their respective
successors and assigns, and no other Person shall have any right, benefit, priority or interest under, or
because of the existence of, this Agreement. This Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws of the State of New York. This Agreement may not be
modified, altered or amended except by agreement in writing signed by each of the Credit Parties, the
Agent and Requisite Lenders. Each party hereto acknowledges that it has consulted with counsel and
with such other expert advisors as it deemed necessary in connection with the negotiation, execution and
delivery of this Agreement. This Agreement shall be construed without regard to any presumption or rule
requiring that it be construed against the party causing this Agreement or any part hereof to be drafted.
This Agreement is not intended as, nor shall it be construed to create, a partnership or joint venture
relationship between or among any of the parties.
(d) Mutual Waiver of Right of Jury Trial. THE AGENT, LENDERS, THE
BORROWERS AND GUARANTORS EACH HEREBY W AlVES THE RIGHT TO TRIAL BY JURY
IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY
RELATING TO: (A) THIS AGREEMENT OR ANY OF THE AGREEMENTS, INSTRUMENTS OR
DOCUMENTS REFERRED TO HEREIN; (B) ANY OTHER PRESENT OR FUTURE INSTRUMENT
OR AGREEMENT BETWEEN OR AMONG THEM; OR (C) ANY CONDUCT, ACTS OR
OMISSIONS OF THE AGENT, LENDERS, BORROWERS OR GUARANTORS OR ANY OF THEIR
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS
AFFILIATED WITH THEM; IN EACH OF THE FOREGOING CASES, WHETHER IN CONTRACT
OR TORT OR OTHERWISE.
[the balance of this page is intentionally left blank]
8
Ol4198.0110\495079.05
---- -----------------
IN WITNESS WHEREOF, the Borrowers, the Agent and the Lenders have caused. this
Agreement to be duly executed and sealed. as of the date 1irst above written by their respective duly
authorized officers or other representatives.
024198.0110\495079.04
AU.Dtn SYSTEMS, LTD. (L.P.)
B y : ~ ~
Name: <J;t.. ... "&l.,_. F
Title: !:\Jf"
THE CIT GROUP/BUSINESS CREDIT, INC., as
Adminisfrative Agent and Collateral Agent
~ - - - - - - - - - - - - - - - - - - - - -
Name:
Title:
THE CIT GROUP/BUSINESS CREDIT, INC., as a
Lender
By:. ______________________ _
Name:
Title:
S-1
IN WITNESS WHEREOF; the Borrowers) the Agent and the Lenders have this
Agr6ernent to be duJy executed and sealed as of the date first above written by their respective duly
authori2:ed officers or other representatives.
024198.0110\495079.05
ALLIED SYSTEMS HOLDINGS, INC.
By:

Tide:
ALLIED SYSTEMS, LTD. (L.P.)

Name:
Tltle:
THE CIT GROUP/BUSINESS CREDITt lNC., as
Administrative Agent and Collateral Agent
By:. __
Namo:
Title:
TOE CIT GROUP/BUSINESS CREDIT, lNC., as a
Lender
By: ____
Name:
Title:
Sl
024198.0110\495079.05
A M E N D ~ TO FORBEARANCE
AGREEMENT
To . .approve the Amendmelit to Forbearance Agreement
S-2
Fax sent b,., 31B281SSDZ
02419&.0110\49.5079.05
ALCEHTRA
18-Z4-8B 11:3'!J
To approve the Auleadment to FOJbcamnce Agreement
Name oftender:
Paoifiea CDO U
1
LTD
By: Alcentra Jno. as its Investment Maaap
a ~
Name: A n u r a ~ Kapur
Title: SeDior Vice .Ptesident
Pg: 2/4
'
Fax sent b9 : 3182815982 ALCEtttM 18-2-l-BB 11:39
To appxovc tho Anlendmcmt t.o FOJbcanmce Agreement
Name ofLcmder:
Pacifica CDO .III, LlD
By: Aluntra Inc. as ill Manager

Nmw. AtwragiCapur
Title: So.oior Vace President
024198.0110\49:>079.05
Fx sent by
3182815982
024198.0110\495079.0S
ALCENTRA
18-Z1-88 11:39
To approve the Amendment to Forbeuuce A ~
Namo ofLender.
Wcst.woodCDO n, LlD
By: .Mcentra Jc, as i1s Investment Mana&et
a ~
Name: .Alnltag Kapur
title: Senior Vice Prosident
Pg: 41"4
I
I
10/24/2008 13:11
024198.0110\495079.05
STANFIELD CAPITAL 912124617760
AMENDMENT TO FORBEAltANCE
AGBEEl\IENT
N0.449
To approve the Amendment to Forbearance AJR*Ucnt
of'Lender;
IGXG Muagement LLC Series K
By: Stanfield Capital LLC,
as its Sub-Advisor

Frey
PAanaging Dirct
STANFIELD CAPITAL 912124617?60
t-Il. 449 0003
I
i
I ,
i
I
To approve the Amendment to For'beatanu Agreement
I
I
...

Frey
Managing Dir " or

024198.0110\495079.05
_,
13:11 STANFIELD 912124617760
AMENDMENT TO J'OB.'Blt.ARANCE
AGREEMENT
N0.449 I:Jiala4
To approve the Amcndmmt to FO'Ibearancc Agreement
Name of Lender:

David Frey
Managing Dir
024198.0110\4950'79.05
lB/24/2086 13:11
STANFIELD CAPITAL ~ 912124617?6e
NO. 449 [;1005
'{
To approve the Amendment to Forbearallee A ~ t
~ ~ ~ - - - - - - ~ ~ - -
~ : ; David Frey
Managing Dirv-
S2
024198.01 t 0\495079.05
024198.01l0\49507MS
STANFIELD CAPITAL 91212461?763
AMENDMENT TO FORBEARANCE
AGREEMENT
NO, 449 0006
To approw the Amendmentt.O
-7
By:
Frey
Managing D
S-2
I
I
I
li-.1 13:11
024198.0\10\493079.05
STANFIELD CAPITAL 91212461?769
AMENDMENT TO FOUEARANCE
AGREEMENT
N0.449 [;1007
To approvt 1be Amendment to Forbearance Agreement
Name of Lender:
STANFIELD CAPITAL ~ 912124617?60
N0.449 0008
To approve the Amendment to :Porbcatmce Aareemmt
Name ofLender.
Sfanfteld 1\kLma CLO, Ltd.
Dr. Stanfield Capital LLC
as
5-l
024198.0110\495079.05
!
t
I
'
I
I ~ 1 ~ . ,:1l?IH I 3: ll
024198.0110\495079.()5
STANFIELD CAPITAL 7 912124617760
AMENDMENT TO li'ORBJtARANCE
AGRUMENT
N0.449 (;1009
1'o a p p r o ~ the Amendment to Forbearance AgR:ement
Namo of Lender:
Sfanftelcl Modena CUl, Lta
U,: Slaldield capital Pal1Dm, LtC
as its Mauager
S2
STANFIELD CAPITAL 912124617760
NO, 449 Gl010
To npprovc the Amendment to. Forbearance

Frey

Sl
02.4198.0110\495079.05

STANFIELD CAPITRL 912124617760
AMENDMEN1' TO FOR.BlM.RANCE
AGREEMENT
N0.449 0011
To approve the Am.eru.bnmlt to Forbearance Agreement

David Frey
.__, __
Sol
10/24/200& 13:15 f'AX 830 383 3978
OZ4198.0110\495079.0S
McDonnell Investments
AMENDMENT TO J'ORBE.ARANCE
AGREEMENT
lii!002/002
To approve the Amendmmt to Forbearance Agreement
Name of Lender:
MCDONNELL LOAN OPPORTUNI'IY LTD.
By: McDoMelllnvestmenl Management, LLC,
as Investment Manager
Brian J. Mwphy
Vice Presrdent
OCT. 24. 2008 I: 30PM
024198.0110\495079.05
LaSalle Global Trust Services NO. 8833 P. 2
AMENDMENT TO Ji'ORB:EARANCE
AGREEMENI
Name ofLcmle.r
A VI. loan Funding LLC
024198.0110\495079.05
AMENDMENT TO FORBEARANCE
AGREEMENT
To approve the Amendment ro Forbearance Agreement
Name ofLonder:
By:._r/J._f_fk_k __
Name:
Title:
V$rkki CheOko
Manag!ng Prlnolpei
CreciJt Capit&lll'lvestmenta lLC
Onbehalfot
Teak Hill MQter FUI'Id LP
10/24/2008 14:30 FAX 2035529300
10/24/2008 1 4 ~ 2 0 FAX
024198.0110\4?5079.05
DURHAM
faj001!001
COMAC C JIACK:B'f liiJ 001
024198.0110\495079.05
TO FORBEARANCE
AGREEMENT
To approve the Amendment to Fot'bearance Agreement
S2
024198.0110\495079.05
AMENDNffiNTTOFORBEARANCE
AGREEMENT
To approve the Amendment to Forbearance Agreement
Name ofLender:
ers LP, its Investment Manager

Name:
Title: GEORGE FAN
AUTHORIZED SIGNATORY
GSO Domestic Capital Funding LLC
:
Nam.
Title:
S2
GEORGE FAN
AUTHORIZED SIGNATORY
024198.0110\495079.05
AMENDMENT TO FORBEARANCE
AGREEMl;NT
To approve t11e Amendment to Forbearance Agreement
Name of Lender:
82
024198.0110\495079.05
AMENDMENT TO FORBEARANCE
AGREEMENT
To approve the Amendment to Forbearance Agreement
Name of Lender:
Kinney Hill Credit
Opportunities Fund, Ltd.
By: Ore Hill Partners LLC
[ts: Investment Advisor
By:. __
Name:
Title:
82
Cr..ali'BE .11. BaOM, !4o.
CoUNSEL
y:.l'tt'llrm LI
024198.0110\495079.05
AMENDMENT TO FORBEARANCE
AGREEMENT
To approve the Amendment to Forbearance Agreement
Name of Lender:
GEER MOUt ! A rmANCING, LTDo
By: Ore Hm Pliil'lMr& LLC
Ita: lnveetmcnt Advlaor
..
..
By: _____ . _ __ _
Name:
Title:
S2
Cr..avnE Jl. B!Ulll
1
EsQ.
G ElftllllL Comul:l.
Or..t W,n,1, LLC
024198.0110\495079.05
AMENDMENT TO
AGREEMENT
To approve the Amendment to Forbearance Agreement
Name of Lender:
SPECTRUM INVESTMENT PARTNERS LP
By: Spectrum Group Management
By:

Title:
S-2
024198.0110\495079.05
AMENDMENT TO FORBEARANCE
AGREEMENT
To approve the Amendment to Forbearance Agreement
AMMC VIII, LIMITED
By: American Money Management Corp.,
as Collateral Manager
By:
Name:
Title:
David P. Meyer
Senior Vice President
S-2
024198.0110\495079.05
AMENDMENTTOFORBEARANCE
AGREEMENT
To approve the Amendment to Forbearance Agreement
BDCM Oppomudt)' Fund' D, LP.
. By: BDCM Opportunicy Fund D Ad'tiser, L.L.C.
Its lnvestmeru Manqer
S-2
024198.0110\495079.05
AMENDMENT TO FORBEARANCE
AGREEMENT
To approve the Amendment to Forbearance Agreement
Name of Lender:
S-2
024198.0110\495079.05
AMENDMENTTOFORBEARANCE
AGREEMENT
To approve the Amendment to Forbearance Agreement
By: David H. Lerner
Nam_e_:
Titie:
82
The Foregoing Amendment to Forbearance Agreement is Herebv
Agreed to and Accej)ted as of the Date First Written Above:
AD INDUSTRIES INC.
AI.l.JED AUfOMOTIVE GROUP, INC.
ALLIED FREIGBTBROKERLLC
ALLIED SYSTEMS (CANADA) COMPANY
AXIS CANADA COMPANY
AXIS GROUP, INC.
COMMERCIAL CARRIERS, INC.
CORDJN TRANSPORTLLC
C T SERVICES, INC.
F.J. BOUTELL DRIVEAWAY LLC
GACS INCORPORATED
QAT, INC.
RMXLLC
TERMINAL SERVICES LLC
TRANSPORTSUPPORTLLC
B y : ~ ~ ~
AXIS ARETA, LLC
LOGISTIC SYSTEMS, LLC
LOGISTIC TECHNOLOGY, LLC
By: AX International Limited.
its Sole Member and Manager
By:
024198.0110\495079.04
S-3
EXHIBIT A
FORM OF SPONSOR SIDE AGREEMENT
SPONSOR SIDE AGREEMENT
This SPONSOR SIDE AGREEMENT (this "Agreement") is made and entered into as of
October 23, 2008, by and among The CIT Group/Business Credit, Inc. ("CIT"), in its capacity as
Administrative Agent and Collateral Agent for the Lenders (as defined below) (in such capacity,
the "Agent"), Yucaipa American Alliance Fund I, LP and Yucaipa American Alliance (Parallel)
Fund I, LP (collectively the "Sponsors", and individually a "Sponsor").
RECITALS:
WHEREAS, Allied Systems Holdings, Inc. (formerly known as Allied Holdings,
Inc.), a Delaware corporation ("Holdings"), Allied Systems, Ltd. (L.P.), a Georgia limited
partnership ("Systems" and, together with Holdings, the "Borrowers" and individually a
"Borrower''), the Agent, certain subsidiaries of Holdings, the Lenders party thereto, Goldman
Sachs Credit Partners L.P ., as Lead Arranger and as Syndication Agent, and the Guarantors
named therein, entered into that certain Amended and Restated First Lien Secured Super-Priority
Debtor in Possession and Exit Credit and Guaranty Agreement, dated as of May 15, 2007 (as
amended, the "Credit Agreement"; capitalized terms used herein and not otherwise defined shall
have the respective meanings ascribed thereto in the Credit Agreement);
WHEREAS, the Borrowers, the Agent and the Lenders have entered into that
certain Forbearance Agreement (as amended from time to time, the "Forbearance Agreement")
made and entered into as of September 24, 2008, by and among Holdings, Systems, the Agent
and the Lenders party thereto;
WHEREAS, in consideration of the benefits to the Sponsors of the Credit Parties'
Benefits (as defined in the Forbearance Agreement) pursuant to an extension of the Forbearance
Period (as defined in the Forbearance Agreement) to be memorialized by an amendment to the
Forbearance Agreement entered into contemporaneously herewith, the Sponsors are willing to
agree to certain financial and other agreements and commitments set forth in this Agreement;
and
WHEREAS, the Sponsors acknowledge and agree that the.Credit Parties' Benefits
are of material benefit to Sponsors, and that neither the Agent nor Lenders (or any of them) were
or are under any obligation to now or hereafter extend to Credit Parties the Credit Parties'
Benefits.
NOW, THEREFORE, in consideration of the foregoing premises, and other good
and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged,
the parties hereby agree as follows:
10. Rwresentations, Warranties, Covenants and Acknowledgments.
024198.0110\495079.05
(a) Each Sponsor represents and warrants that: (i) it has the power and authority and
is duly authorized to enter into, deliver and perfonn this Agreement; (ii) this Agreement is the
legal, valid and binding obligations of such Sponsor, enforceable against it in accordance with its
tenns, except as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally and by general principles
of equity (regardless of whether enforcement is sought in equity or in law); and (iii) the
execution, delivery and perfonnance of this Agreement in accordance with its tenns do not and
will not, with the passage of time, the giving of notice or otherwise: (A) require approval from a
Governmental Authority or violate any law or any governmental rule or regulation relating
thereto; (B) conflict with, result in a breach of or constitute a default under (1) the organizational
and other governing documents of such Sponsor; (2) any indenture, material agreement or other
material instrument to which it is a party or by which any of its properties may be bound, or (3)
any approval by a Governmental Authority relating thereto; or (C) result in or require the
creation or imposition of any Lien upon or with respect to any property now owned or hereafter
acquired by such Sponsor.
(b) The Sponsors do hereby acknowledge and agree that, as of the date hereof, no
known right of offset, defense, counterclaim, claim, causes of action or objection in favor of a
Sponsor against the Lenders (or any of them) or the Agent exists arising out of or with respect to
any of the Credit Documents.
11. Release of Sponsors.
(a) Each of the Sponsors, for itself and its respective successors and assigns, (i) does
hereby remise, release, waive, relinquish, acquit, satisfy and forever discharge the Agent and
each Lender, and all of the respective past, present and future officers, directors, employees,
agents, attorneys, representatives, participants, heirs, successors and assigns of the Agent and
each Lender (collectively the "Discharged Parties" and each a "Discharged Party''), from any and
all manner of debts, accountings, bonds, warranties, representations, covenants, promises,
contracts, controversies, agreements, liabilities, obligations, expenses, damages, judgments,
executions, actions, suits, claims, counterclaims, demands, defenses, setoffs, objections and
causes of action of any nature whatsoever, whether at law or in equity, either now accrued or
hereafter maturing and whether known or unknown, including, but not limited to, any and all
claims which may be based on allegations of breach of contract, failure to lend, fraud,
promissory estoppel, libel, slander, usury, negligence, misrepresentation, breach of fiduciary
duty, bad faith, lender malpractice, undue influence, duress, tortious interference with contractual
relations, interference with management, or misuse of control which either of the Sponsors now
has or hereafter can, shall or may have by reason of any matter, cause, thing or event occurring
on or prior the date of this Agreement arising out of, in connection with or relating to (x) the
Obligations, including, but not limited to, the administration or funding thereof, (y) any of the
Credit Documents or the indebtedness evidenced and secured thereby, and (z) any other
agreement or transaction between the Sponsors (or any of them) and any Discharged Party
relating to or in connection with the Credit Documents or the transactions contemplated therein;
and (ii) does hereby covenant and agree never to institute or cause to be instituted or continue
prosecution of any suit or other fonn of action or proceeding of any kind or nature whatsoever
against any Discharged Party, by reason of or in connection with any of the foregoing matters,
claims or causes of action, provided, however, that the foregoing release and covenant not to sue
024198.0110\495079.05
shall not apply to any claims first arising after the date of this Agreement with respect to acts,
occurrences or events after the date of L.1.is Agreement.
(b) Each of the Sponsors understands, acknowledges and agrees that the release set
forth above may be pieaded as a fuH and compiete defense and may be used as a basis for an
injunction against any action, suit or other proceeding which may be instituted, prosecuted or
attempted in breach of the provisions of such release.
(c) Each of the Sponsors agrees that no fact, event, circumstance, evidence or
transaction which could now be asserted or which may hereafter be discovered shall affect in any
manner the final and unconditional nature of the release set forth above.
(d) Each of the Sponsors represents and warrants that each such Person is the sole and
lawful owner of all right, title and interest in and to all of the claims released hereby, and each
such Person has not heretofore voluntarily, by operation of law or otherwise, assigned or
transferred or purported to assign or transfer to any person any such claim or any portion thereof.
(e) WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542 AND SIMILAR
LAWS. WITHOUT DEROGATING FROM THE NEW YORK CHOICE OF LAW
PROVISION SET FORTH HEREIN, THE SPONSORS ACKNOWLEDGE THAT THEY ARE
FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542,
WHICH PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
SPONSORS BEING AWARE OF SAID CODE SECTION, AND HAVING THE
OPPORTUNITY TO CONSULT LEGAL COUNSEL, HEREBY EXPRESSLY WAIVE ANY
RIGHTS THEY MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER
STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. THE SPONSORS
ACKNOWLEDGE AND AGREE THAT THIS WAIVER IS AN ESSENTIAL AND
MATERIAL TERM OF THIS AGREEMENT, AND THAT WITHOUT SUCH WAIVER, THIS
AGREEMENT WOULD NOT HAVE BEEN ENTERED INTO BY THEM. EACH SPONSOR
HERETO UNDERSTANDS THAT THE FACTS IN RESPECT OF WHICH THE RELEASES
AND COVENANTS NOT TO SUE MADE IN THIS AGREEMENT ARE GIVEN MAY
HEREAFTER TURN OUT TO BE OTHER THAN OR DIFFERENT FROM THE FACTS IN
THAT CONNECTION NOW KNOWN OR BELIEVED BY IT TO BE TRUE AND THAT IT
MAY DISCOVER FACTS DIFFERENT, OR IN ADDITION TO, THOSE FACTS WHICH
THEY NOW BELIEVE TO BE TRUE, AND EACH SPONSOR HEREBY, ON BEHALF OF
ITSELF AND ITS AFFILIATES, ACCEPTS AND ASSUMES THE RISK OF THE
DISCOVERY OF NEW FACTS AND THE FACTS TURNING OUT TO BE DIFFERENT
AND AGREES NO DISCHARGED PARTY IN ANY CAPACITY HAS ANY DUTY TO
DISCLOSE ANY FACTS (WHETHER MATERIAL OR IMMATERIAL, KNOWN OR
UNKNOWN, SUSPECTED OR UNSUSPECTED) TO ANY SPONSOR AND THAT THIS
AGREEMENT SHALL BE AND REMAIN IN ALL RESPECTS EFFECTIVE AND NOT
SUBJECT TO TERMINATION OR RESCISSION BY VIRTUE OF ANY SUCH
024198.0110\495079.05
DIFFERENCE IN FACTS OR THE DISCOVERY OF NEW FACTS, EVEN IF ANY FACTS
WERE NOT DISCLOSED (WHETHER INTENTIONALLY, UNINTENTIONALLY OR
OTHERWISE) BY ANY DISCHARGED PARTY TO ANY SPONSOR, WHICH FACTS, IF
KNOWN BY SUCH SPONSOR, MIGHT HAVE CAUSED ANY SPONSOR NOT TO
EXECUTE AND DELIVER THIS AGREEMENT. THE SPONSORS INTENTIONALLY
WANE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER ANY LAW OF ANY
JURISDICTION PROVIDING TO THE CONTRARY, OR ANY PUBLIC POLICY THAT
WOULD LIMIT OR RENDER VOID, VOIDABLE OR UNENFORCEABLE ANY
PROVISION OF THE RELEASE CONTAINED IN THIS AGREEMENT. THE SPONSORS
HAVE INCLUDED THIS WAIVER OF CALIFORNIA CNIL CODE SECTION 1542 IN
THIS AGREEMENT IN ORDER TO PROCURE CERTAINTY IN THEIR AFFAIRS.
EACH OF THE SPONSORS HEREBY ACKNOWLEDGES AND AGREES, ON BEHALF OF
ITSELF AND ITS AFFILIATES, THAT NOTHING CONTAINED IN SECTION 2 OF THIS
AGREEMENT SHALL RELEASE OR DISCHARGE ANY OF THEM FROM THE
LIABILITIES, DUTIES AND OBLIGATIONS UNDERTAKEN OR ASSUMED UNDER
THIS AGREEMENT.
12. Additional Acknowledgments and Agreements. Each of the Sponsors
expressly acknowledges and agrees that the waivers, estoppels and releases in favor of the Agent
and each Lender contained in this Agreement shall not be construed as an admission of any
wrongdoing, liability or culpability on the part of the Agent or any such Lender, or as an
admission by the Agent or any such Lender of the existence of any claims by any Credit Party or
the Sponsors against the Agent or any such Lender. Each of the Sponsors further acknowledges
and agrees that, to the extent that any such claims exist, they are of a speculative nature so as to
be incapable of objective valuation and that, to the extent that any such claims may exist and
may have value, such value would constitute primarily "nuisance" value or "leverage" value in
adversarial proceedings between the Agent or any such Lender. In any event, each of the
Sponsors acknowledges and agrees that the value to such Sponsor of the covenants and
agreements on the part of the Agent and each Lender contained in this Agreement substantially
and materially exceeds any and all value of any kind or nature whatsoever of any claims or other
liabilities waived or released by such Sponsor hereunder.
13. Sponsor Agreements. Each of the Sponsors hereby represents, warrants,
covenants to and for the benefit of, and agrees with, the Agent and the Lenders that:
(a) none of the Restricted Sponsor Affiliates, directly or indirectly, hold any
Obligation whether as a Lender or otherwise or have any voting rights (including the power to
vote or direct voting) in respect of any Obligation or under the Credit Documents, nor have any
such entities entered into, nor will any of them during the Forbearance Period (as such term is
defined in, and as it may be extended, under the Forbearance Agreement) (the "Lockout Period")
enter into, either directly or indirectly, any contract, option, arrangement, understanding,
relationship or otherwise which may result in any such Restricted Sponsor Affiliate directly or
indirectly, either during the Lockout Period or after the termination of the Lockout Period:
(i) holding any Obligation or becoming a Lender, or
024198.0110\495079.05
(ii) having any voting rights (including the power to vote or direct voting)
under the Credit Documents, and
(b) the Restricted Sponsor Affiliates shall not, during the Lockout Period, directly or
indirectly demand, accept or receive any of the following:
(i) any interest (other than interest paid in kind by adding to the principal
balance of the Second Lien Term Loans) on or principal with respect to any of the Loans
or any of the Second Lien Term Loans, or
(ii) any payment or other distribution from either of the Borrowers or any of
their respective Subsidiaries (other than the reasonable and documented ordinary course
out-of-pocket expenses of the Sponsors), pursuant to any Management Agreement or
otherwise.
(c) (i) as of the date hereof, the Sponsors are the only Restricted Sponsor Affiliates
that hold any portion of the Second Lien Term Loans, and (ii) as of the date hereof, the Sponsors
hold the Second Lien Term Loans in the aggregate principal amount of$20,000,000.
14. Miscellaneous.
(a) The Sponsors agree to take such further action as the Agent shall reasonably
request in connection herewith to evidence the agreements herein contained. This Agreement
embodies the entire understanding and agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements, understandings and inducements,
whether express or implied, oral or written, in respect of the matters which are the subject of this
Agreement.
(b) Any provision of this Agreement held. by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this Agreement and the
effect thereof shall be confined to the provision so held to be invalid or unenforceable.
(c) This Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which, when so executed and delivered, shall be
deemed to be an original and all of which counterparts, taken together, shall constitute but one
and the same instrument. This Agreement shall be binding upon and inure to the benefit of the
successors and permitted assigns of the parties hereto. This Agreement is solely for the benefit
of the Agent, the Lenders and each of the other parties hereto and their respective successors and
assigns, and no other Person shall have any right, benefit, priority or interest under, or because of
the existence of, this Agreement. This Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws of the State of New York. This Agreement may
not be modified, altered or amended except by agreement in writing signed by all of the parties
hereto. Each party hereto acknowledges that it has consulted with counsel and with such other
expert advisors as it deemed necessary in connection with the negotiation, execution and delivery
of this Agreement. This Agreement shall be construed without regard to any presumption or rule
requiring that it be construed against the party causing this Agreement or any part hereof to be
drafted. This Agreement is not intended as, nor shall it be construed to create, a partnership or
joint venture relationship between or among any of the parties.
024198.0110\495079.05
(d) CONSENT TO WRISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST ANY SPONSOR ARISING OUT OF OR RELATING HERETO MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN
THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND DELIVERING
THIS AGREEMENT, EACH SPONSOR, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY
THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (B) WAIVES
ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE
APPLICABLE SPONSOR AT THE FOLLOWING ADDRESS: C/0 THE YUCAIPA
COMPANIES, LLC, 9130 WEST SUNSET BOULEVARD, LOS ANGELES, CALIFORNIA
90069; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE
SPONSOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT; AND OTHERWISE
CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E)
AGREES THAT THE AGENT AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS
AGAINST ANY SPONSOR IN THE COURTS OF ANY OTHER JURISDICTION.
(e) MUTUAL WAIVER OF RIGHT OF JURY TRIAL. THE AGENT AND
SPONSORS EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION
OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO:
(A) THIS AGREEMENT OR ANY OF THE AGREEMENTS, INSTRUMENTS OR
DOCUMENTS REFERRED TO HEREIN; (B) ANY OTHER PRESENT OR FUTURE
INSTRUMENT OR AGREEMENT BETWEEN OR AMONG THEM; OR (C) ANY
CONDUCT, ACTS OR OMISSIONS OF THE AGENT, LENDERS OR SPONSORS OR ANY
OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS
OR ANY OTHER PERSONS AFFILIATED WITH THEM; IN EACH OF THE FOREGOING
CASES, WHETHER IN CONTRACT OR TORT OR OTHERWISE.
[the balance of this page is intentionally left blank]
024198.0110\495079.05
IN WITNESS WHEREOF, the Agent and the Sponsors have caused this
Agreement to be duly executed and sealed as of the date first above written by their respective
duly authorized officers or other representatives.
024198.0110\495079.05
THE CIT GROUP/BUSINESS CREDIT, INC.,
as ADMINISTRATNE AGENT AND
COLLATERAL AGENT
By: _______________________ __
Name:
Title:
YUCAIPA AMERICAN ALLIANCE FUND I, LP
By: _____________________ __
Name:
Title:
YUCAIPA AMERICAN ALLIANCE (PARALLEL)
FUNDI,LP
By: _______________________ _
Name:
Title:
.. . J
SPONSOR SIDE AGREEMENT
This SPONSOR SIDE AGREEMENT (this "Agreement") is made and entered into as of
October 23, 2008, by and among The CIT Group/Business Credit, Inc. ("CIT"), in its capacity as
Administrative Agent and Collateral Agent for the Lenders (as defined below) (in such capacity,
the "Agent"), Yucaipa American Alliance Fund I, LP and Yucaipa American Alliance (Parallel)
Fund I, LP (collectively the "Sponsors", and individually a "Sponsor'').
RECITALS:
WHEREAS, Allied Systems Holdings, Inc. (formerly known as Allied Holdings, Inc.), a
Delaware corporation ("Holdings"), Allied Systems, Ltd. (L.P.), a Georgia limited partnership
("Systems" and, together with Holdings, the "Borrowers" and individually a "Borrower''), the
Agent, certain subsidiaries of Holdings, the Lenders party thereto, Goldman Sachs Credit
Partners L.P ., as Lead Arranger and as Syndication Agent, and the Guarantors named therein,
entered into that certain Amended and Restated First Lien Secured Super-Priority Debtor in
Possession and Exit Credit and Guaranty Agreement, dated as of May 15,2007 (as amended, the
"Credit Agreement"; capitalized terms used herein and not otherwise defined shall have the
respective meanings ascribed thereto in the Credit Agreement);
WHEREAS, the Borrowers, the Agent and the Lenders have entered into that certain
Forbearance Agreement (as amended from time to time, the "Forbearance Agreement") made
and entered into as of September 24, 2008, by and among Holdings, Systems, the Agent and the
Lenders party thereto;
WHEREAS, in consideration of the benefits to the Sponsors of the Credit Parties'
Benefits (as defined in the Forbearance Agreement) pursuant to an extension of the Forbearance
Period (as defined in the Forbearance Agreement) to be memorialized by an amendment to the
Forbearance Agreement entered into contemporaneously herewith, the Sponsors are willing to
agree to certain financial and other agreements and commitments set forth in this Agreement;
and
WHEREAS, the Sponsors acknowledge and agree that the Credit Parties' Benefits are of
material benefit to Sponsors, and that neither the Agent nor Lenders (or any of them) were or are
under any obligation to now or hereafter extend to Credit Parties the Credit Parties' Benefits.
NOW, THEREFORE, in consideration of the foregoing premises, and other good and
valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Representations, Warranties, Covenants and Acknowledgments.
(a) Each Sponsor represents and warrants that: (i) it has the power and
authority and is duly authorized to enter into, deliver and perform this Agreement; (ii) this
Agreement is the legal, valid and binding obligations of such Sponsor, enforceable against it in
accordance with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting creditors' rights generally
and by general principles of equity (regardless of whether enforcement is sought in equity or in
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law); and (iii) the execution, delivery and performance of this Agreement in accordance with its
terms do not and will not, with the passage of time, the giving of notice or otherwise: (A) require
approval from a Governmental Authority or violate any law or any governmental rule or
regulation relating thereto; (B) conflict with, result in a breach of or constitute a default under
(1) the organizational and other governing documents of such Sponsor; (2) any indenture,
material agreement or other material instrument to which it is a party or by which any of its
properties may be bound, or (3) any approval by a Governmental Authority relating thereto; or
(C) result in or require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by such Sponsor.
(b) The Sponsors do hereby acknowledge and agree that, as of the date hereof,
no known right of offset, defense, counterclaim, claim, causes of action or objection in favor of a
Sponsor against the Lenders (or any of them) or the Agent exists arising out of or with respect to
any of the Credit Documents.
2. Release of Sponsors.
(a) Each of the Sponsors, for itself and its respective successors and assigns,
(i) does hereby remise, release, waive, relinquish, acquit, satisfy and forever discharge the Agent
and each Lender, and all of the respective past, present and future officers, directors, employees,
agents, attorneys, representatives, participants, heirs, successors and assigns of the Agent and
each Lender (collectively the "Discharged Parties" and each a "Discharged Party"), from any and
all manner of debts, accountings, bonds, warranties, representations, covenants, promises,
contracts, controversies, agreements, liabilities, obligations, expenses, damages, judgments,
executions, actions, suits, clainis, counterclaims, demands, defenses, setoffs, objections and
causes of action of any nature whatsoever, whether at law or in equity, either now accrued or
hereafter maturing and whether known or unknown, including, but not limited to, any and all
claims which may be based on allegations of breach of contract, failure to lend, fraud,
promissory estoppel, libel, slander, usury, negligence, misrepresentation, breach of fiduciary
duty, bad faith, lender malpractice, undue influence, duress, tortious interference with contractual
relations, interference with management, or misuse of control which either of the Sponsors now
has or hereafter can, shall or may have by reason of any matter, cause, thing or event occurring
on or prior the date of this Agreement arising out of, in connection with or relating to (x) the
Obligations, including, but not limited to, the administration or funding thereof, (y) any of the
Credit Documents or the indebtedness evidenced and secured thereby, and (z) any other
agreement or transaction between the Sponsors (or any of them) and any Discharged Party
relating to or in connection with the Credit Documents or the transactions contemplated therein;
and (ii) does hereby covenant and agree never to institute or cause to be instituted or continue
prosecution of any suit or other form of action or proceeding of any kind or nature whatsoever
against any Discharged Party, by reason of or in connection with any of the foregoing matters,
claims or causes of action, provided, however, that the foregoing release and covenant not to sue
shall not apply to any claims first arising after the date of this Agreement with respect to acts,
occurrences or events after the date of this Agreement.
(b) Each of the Sponsors understands, acknowledgeS and agrees that the
release set forth above may be pleaded as a full and complete defense and may be used as a basis
for an injunction against any action, suit or other proceeding which may be instituted, prosecuted
or attempted in breach of the provisions of such release.
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(c) Each of the Sponsors agrees that no fact, event, circunistance, evidence or
transaction which could now be asserted or which may hereafter be discovered shall affect in any
manner the final and unconditional nature of the release set forth above.
(d) Each of the Sponsors represents and warrants that each such Person is the
sole and lawful owner of all right, title and interest in and to all of the claims released hereby,
and each such Person has not heretofore voluntarily, by operation of law or otherwise, assigned
or transferred or purported to assign or transfer to any person any such claim or any portion
thereof.
(e) WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542 AND
SIMILAR LAWS. WITHOUT DEROGATING FROM THE NEW YORK CHOICE OF LAW
PROVISION SET FORTH HEREIN, THE SPONSORS ACKNOWLEDGE THAT THEY ARE
FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542,
WHICH PROVIDES AS FOLLOWS:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
SPONSORS BEING AWARE OF SAID CODE SECTION, AND HAVING THE
OPPORTUNITY TO CONSULT LEGAL COUNSEL, HEREBY EXPRESSLY WAIVE ANY
RIGHTS THEY MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER
STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT. THE SPONSORS
ACKNOWLEDGE AND AGREE THAT THIS WAIVER IS AN ESSENTIAL AND
MATERIAL TERM OF THIS AGREEMENT, AND THAT WITHOUT SUCH WAIVER, THIS
AGREEMENT WOULD NOT HAVE BEEN ENTERED INTO BY THEM. EACH SPONSOR
HERETO UNDERSTANDS THAT THE FACTS IN RESPECT OF WHICH THE RELEASES
AND COVENANTS NOT TO SUE MADE IN THIS AGREEMENT ARE GIVEN MAY
HEREAFTER TURN OUT TO BE OTHER THAN OR DIFFERENT FROM THE FACTS IN
THAT CONNECTION NOW KNOWN OR BELIEVED BY IT TO BE TRUE AND THAT IT
MAY DISCOVER FACTS DIFFERENT, OR IN ADDITION TO, THOSE FACTS WHICH
THEY NOW BELIEVE TO BE TRUE, AND EACH SPONSOR HEREBY, ON BEHALF OF
ITSELF AND ITS AFFILIATES, ACCEPTS AND ASSUMES THE RISK OF THE
DISCOVERY OF NEW FACTS AND THE FACTS TURNING OUT TO BE DIFFERENT
AND AGREES NO DISCHARGED PARTY IN ANY CAPACITY HAS ANY DUTY TO
DISCLOSE ANY FACTS (WHETHER MATERIAL OR IMMATERIAL, KNOWN OR
UNKNOWN, SUSPECTED OR UNSUSPECTED) TO ANY SPONSOR AND THAT THIS
AGREEMENT SHALL BE AND REMAIN IN ALL RESPECTS EFFECTIVE AND NOT
SUBJECT TO TERMINATION OR RESCISSION BY VIRTUE OF ANY SUCH
DIFFERENCE IN FACTS OR THE DISCOVERY OF NEW FACTS, EVEN IF ANY FACTS
WERE NOT DISCLOSED (WHETHER INTENTIONALLY, UNINTENTIONALLY OR
OTHERWISE) BY ANY DISCHARGED PARTY TO ANY SPONSOR, WHICH FACTS, IF
KNOWN BY SUCH SPONSOR, MIGHT HAVE CAUSED ANY SPONSOR NOT TO
EXECUTE AND DELIVER THIS AGREEMENT. THE SPONSORS INTENTIONALLY
WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER ANY LAW OF ANY
JURISDICTION PROVIDING TO THE CONTRARY, OR ANY PUBLIC POLICY THAT
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WOULD LIMIT OR RENDER VOID, VOIDABLE OR UNENFORCEABLE ANY
PROVISION OF THE RELEASE CONTAINED IN THIS AGREEMENT. THE SPONSORS
HAVE INCLUDED THIS WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542 IN
THIS AGREEMENT IN ORDER TO PROCURE CERTAINTY IN THEIR AFFAIRS.
EACH OF THE SPONSORS HEREBY ACKNOWLEDGES AND AGREES, ON BEHALF OF
ITSELF AND ITS AFFILIATES, THAT NOTHING CONTAINED IN SECTION 2 OF THIS
AGREEMENT SHALL RELEASE OR DISCHARGE ANY OF THEM FROM THE
LIABILITIES, DUTIES AND OBLIGATIONS UNDERTAKEN OR ASSUMED UNDER
THIS AGREEMENT.
3. Additional Acknowledgments and Agreements. Each of the Sponsors expressly
acknowledges and agrees that the waivers, estoppels and releases in favor of the Agent and each
Lender contained in this Agreement shall not be construed as an admission of any wrongdoing,
liability or culpability on the part of the Agent or any such Lender, or as an admission by the
Agent or any such Lender of the existence of any claims by any Credit Party or the Sponsors
against the Agent or any such Lender. Each of the Sponsors further acknowledges and agrees
that, to the extent that any such claims exist, they are of a speculative nature so as to be incapable
of objective valuation and that, to the extent that any such claims may exist and may have value,
such value would constitute primarily "nuisance" value or "leverage" value in adversarial
proceedings between the Agent or any such Lender. In any event, each of the Sponsors
acknowledges and agrees that the value to such Sponsor.ofthe covenants and agreements on the
part of the Agent and each Lender contained in this Agreement substantially and materially
exceeds any and all value of any kind or nature whatsoever of any claims or other liabilities
waived or released by such Sponsor hereunder.
4. Sponsor Agreements. Each of the Sponsors hereby represents, warrants,
covenants to and for the benefit of, and agrees with, the Agent and the Lenders that:
(a) none of the Restricted Sponsor Affiliates, directly or indirectly, hold any
Obligation whether as a Lender or otherwise or have any voting rights (including the power to
vote or direct voting) in respect of any Obligation or under the Credit Documents, nor have any
such entities entered into, nor will any of them during the Forbearance Period (as such term is
defined in, and as it may be extended, under the Forbearance Agreement) (the "Lockout Period")
enter into, either directly or indirectly, any contract, option, arrangement, understanding,
relationship or otherwise which may result in any such Restricted Sponsor Affiiiate directiy or
indirectly, either during the Lockout Period or after the termination of the Lockout Period:
(i) holding any Obligation or becoming a Lender, or
(ii) having any voting rights (including the power to vote or direct
voting) under the Credit Documents, and
(b) the Restricted Sponsor Affiliates shall not, during the Lockout Period,
directly or indirectly demand, accept or receive any of the following:
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(i) any interest (other than interest paid in kind by adding to the
principal balance of the Second Lien Term Loans) on or principal with respect to any of
the Loans or any of the Second Lien Term Loans, or
(ii) any payment or other distribution from either of the Borrowers or
any of their respective Subsidiaries (other than the reasonable and documented ordinary
course out-of-pocket expenses of the Sponsors), pursuant to any Management Agreement
or otherwise.
(c) (i) as of the date hereof, the Sponsors are the only Restricted Sponsor
Affiliates that hold any portion of the Second Lien Term Loans, and (ii) as of the date hereof, the
Sponsors hold the Second Lien Term Loans in the aggregate principal amount of$20,000,000.
5. Miscellaneous.
(a) The Sponsors agree to take such further action as the Agent shall
reasonably request in connection herewith to evidence the agreements herein contained. This
Agreement embodies the entire understanding and agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements, understandings and
inducements, whether express or implied, oral or written, in respect of the matters which are the
subject of this Agreement.
(b) Any provision of this Agreement held by a court of competent jurisdiction
to be invalid or unenforceable shall not impair or invalidate the remainder of this Agreement and
the effect thereof shall be confined to the provision so held to be invalid or unenforceable.
(c) This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which, when so executed and delivered,
shall be deemed to be an original and all of which counterparts, taken together, shall constitute
but one and the same instrument. This Agreement shall be binding upon and inure to the benefit
of the successors and permitted assigns of the parties hereto. This Agreement is solely for the
benefit of the Agent, the Lenders and each of the other parties hereto and their respective
successors and assigns, and no other Person shall have any right, benefit, priority or interest
under, or because of the existence of, this Agreement. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State ofNew York. This
Agreement may not be modified, altered or amended except by agreement in writing signed by
all of the parties hereto. Each party hereto acknowledges that it has consulted with counsel and
with such other expert advisors as it deemed necessary in connection with the negotiation,
execution and delivery of this Agreement. This Agreement shall be construed without regard to
any presumption or rule requiring that it be construed against the party causing this Agreement
or any part hereof to be drafted. This Agreement is not intended as, nor shall it be construed to
create, a partnership or joint venture relationship between or among any of the parties.
(d) CONSENT TO JURISDICTION. ALL ruDICIAL PROCEEDINGS
BROUGHT AGAINST ANY SPONSOR ARISING OUT OF OR RELATING HERETO MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION
IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND
DELNERING THIS AGREEMENT, EACH SPONSOR, FOR ITSELF AND IN
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CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY
AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF
SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C)
AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY
SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO THE APPLICABLE SPONSOR AT THE FOLLOWING
ADDRESS: C/0 THE YUCAIPA COMPANIES, LLC, 9130 WEST SUNSET BOULEVARD,
LOS ANGELES, CALIFORNIA 90069; (D) AGREES THAT SERVICE AS PROVIDED IN
CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER
THE APPLICABLE SPONSOR IN ANY SUCH PROCEEDING IN ANY SUCH COURT,
AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT; AND (E) AGREES THAT THE AGENT AND LENDERS RETAIN THE RIGHT
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING
PROCEEDINGS AGAINST ANY SPONSOR IN THE COURTS OF ANY OTHER
JURISDICTION.
(e) MUTUAL WAIVER OF RIGHT OF JURY TRIAL. THE AGENT AND
SPONSORS EACH HEREBY W AlVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION
OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO:
(A) THIS AGREEMENT OR ANY OF THE AGREEMENTS, INSTRUMENTS OR
DOCUMENTS REFERRED TO HEREIN; (B) ANY OTHER PRESENT OR FUTURE
INSTRUMENT OR AGREEMENT BETWEEN OR AMONG THEM; OR (C) ANY
CONDUCT, ACTS OR OMISSIONS OF THE AGENT, LENDERS OR SPONSORS OR ANY
OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS
OR ANY OTHER PERSONS AFFILIATED WITH THEM; IN EACH OF THE FOREGOING
CASES, WHETHER IN CONTRACT OR TORT OR OTHERWISE.
[the balance of this page is int_entionally left blank]
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IN WITNESS WBEREOF9 tbe Agent and tbe Sponsors have caused tbis Asreeme;nt to
be duly executed and sealed as of rhe date first above written by their respective duly authorized
officers or otber teptesentativcs.
495528
THE CIT GROUP/BUSINESS CREDtt, INC.,
as ADMINJSTRA11VE AGENT AND
COlLATERAL AGENT
J,LP
YUCAIPA AMERICAN ALLIANCE (PARALLEL)
FUNDI,LP
7
EXHIBITG
C 1
~ R i G J fdA
1
, : f \l . . L.
SETTLEMENT AGREEMENT AND MUTUAL LIMITED RELEASES
This Settlement Agreement and Mutual Limited Releases (the "Agreement") is dated and
effective as of the fifth day ofDecember 2011, by and between Allied Systems Holdings, Inc.
("Allied," which shall include for purposes of this Agreement Allied Systems, Ltd. (L.P.) and
those ce1tain guarantor subsidiaries of Allied Systems Holdings, Inc. and Allied Systems, Ltd.
(L.P.) (collectively, the "Credit Parties"), each of which are parties to the Credit Agreement as
defined herein), Yucaipa American Alliance Fund I, LP ("Y AAF I"), Yucaipa American
Alliance (Parallel) Fund I, LP ("Y AAF Parallel", and together with YAAF I, "Yucaipa," and
together with Allied, "Plaintiffs") and The CIT Group/Business Credit, Inc. (hereinafter referred
to as "Defendant" or "CIT"); (Plaintiffs and Defendant shall collectively hereinafter be referred
to as the "Parties").
WHEREAS, Plaintiffs filed a Verified Complaint on or about November 13, 2009
seeking damages and other legal, equitable and extraordinary relief against CIT in the Superior
Comt of Fulton County, Georgia, Civil Action File No. 2009CV177574 (the "Complaint"), and a
First Amended Complaint on or about December 28, 2010 seeking damages and other legal,
equitable and extraordinary relief against CIT (as amended to date, the "First Amended
Complaint"); and
WHEREAS, Defendant filed a Verified Answer and Counterclaims against Plaintiffs and
Counterclaim Defendants Mark Gendregske, Guy Rutland, IV, Brian Cullen, Jos Opdeweegh, Ira
Tochner and Derex Walker (collectively, the "Counterclaim Defendants") on or about December
21, 2009 seeking damages and other legal, equitable and extraordinary relief against Plaintiffs
and the Counterclaim Defendants (the "Answer and Counterclaims," and together with the
Complaint and the First Amended Complaint, the "Case" or the "Action"); and
1
WHEREAS, Defendant did not serve the Counterclaim Defendants with their
Counterclaims and filed a Motion for Leave to Drop the Non-Served Defendants in
Counterclaim on or about October 22, 2010 in which Defendants stated that the Counterclaim
Defendants "were never made parties to this action"; and
WHEREAS, Plaintiffs and Defendant desire to fully settle and compromise ail disputes,
and to provide for the limited releases set forth and contained in this Agreement, on the terms
and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the promises, covenants and other
considerations set forth herein, the sufficiency of which is hereby acknowledged, and in full and
final satisfaction of all past, present and future claims released under this Agreement, the Parties
agree as follows;
1) Mutual Limited Releases.
a) In exchange for and expressly conditioned upon Defendant's execution of this
Agreement, Plaintiffs do hereby unconditionally release, acquit and forever
discharge Defendant (whether in its capacity as an agent, a lender or otherwise)
and all of its past and present parents, subsidiaries, affiliates, representatives,
successors, assigns, officers, directors, agents, partners, attorneys and employees
from any and all claims, actions, causes of action, demands for damages, costs,
loss of use, expenses, compensation, property damage, punitive damages,
attorney's fees, contribution, indemnification, consequential damages, and any
other expense, benefit, or kind of claim whatsoever against Defendant that
Plaintiffs asserted in the Action (including in the Complaint and the First
Amended Complaint) or that arise from the facts or allegations that underlie the
claims Plaintiffs asserted in the Action, except as otherwise expressly provided
2
within this Agreement and to enforce this Agreement. This limited release does
not preclude Plaintiffs from bringing any claim that any other Lender who is a
party to the Credit Agreement may bring against CIT (in its capacity as agent)
arising from any defect or imperfection in any lien on assets or property of Allied
caused by the action or inaction of CIT that such Lender could otherwise bring
pursuant to, and subject to, the terms of the Credit Documents.
1
Plaintiffs will not
bring any claims against CIT unless the total amount of such claims exceeds
$1,000,000. Yucaipa hereby represents that, as of the effective date of this
Agreement, Yucaipa is not aware of any claims or causes of action of any kind
whatsoever against Defendant, except for the claims expressly released herein.
Allied hereby represents that, as of the effective date of this Agreement, Allied is
not aware of any claims or causes of action of any kind whatsoever against
Defendant, except for the claims expressly released herein. Except as expressly
released herein, nothing in this Agreement shall release, acquit or discharge CIT
from its obligations and liabilities arising under the Credit Documents as amended
through the Fourth Amendment (including without limitation such obligations as
Administrative and Collateral Agent under the Credit Documents as amended).
This limited release is made solely by Yucaipa, Allied and each of their respective
personal representatives, successors and assigns on their own behalves and not in
a representative capacity on behalf of any other person and does not constitute a
release by any other person. The persons released pursuant to this Paragraph l(a),
including but not limited to Defendant, will not assert this release as a defense
against any claim brought by any person other than Yucaipa and Allied; provided,
1
For purposes of this Agreement, the term "Credit Documents" shall have the same meaning and definition as that
3
however that the persons released pursuant to this paragraph may assert this
release as a defense against claims made by the persons described in Paragraph 20
of this Agreement.
b) In exchange for and expressly conditioned upon Plaintiffs' execution ofthis
Agreement, Defendant does hereby unconditionally release, acquit and forever
discharge Plaintiffs and the Counterclaim Defendants and all of their respective
past and present parents, subsidiaries, affiliates, representatives, successors,
assigns, officers, directors, agents, partners, attorneys and employees from any
and all claims, actions, causes of action, demands for damages, costs, loss of use,
expenses, compensation, property damage, punitive damages, attorney's fees,
contribution, indemnification, consequential damages, and any other expense,
benefit, or kind of claim whatsoever against Plaintiffs and the Counterclaim
Defendants that Defendant asserted in the Action (including in Defendant's
Answer and Counterclaims) or that arise from the facts and allegations that
underlie the claims Defendant asserted in the Action, except as otherwise
expressly provided within this Agreement and to enforce this Agreement.
Defendant will not bring any claims against Plaintiffs or the Counterclaim
Defendants unless the total amount of such claims exceeds $1,000,000.
Defendant hereby represents that, as of the effective date of this Agreement,
Defendant is not aware of any claims or actions of any kind whatsoever against
Plaintiffs and the Counterclaim Defendants, except for (i) the claims expressly
released herein; (ii) any defaults and events of default of the Credit Parties
continuing under the Credit Documents; and (iii) the obl.igations and liabilities of
term has in the Credit Agreement as defined below.
4
the Credit Parties existing under the Credit Documents. Notwithstanding
anything herein to the contrary, nothing in this Agreement shaH release, acquit or
discharge Allied or any of the other credit parties from their respective obligations
and liabilities arising under the Credit Documents (including without limitation
the amounts owed by Allied to CIT as a Lender under the Credit Documents);
provided, however, that neither Allied nor any of the other credit parties nor any
Lender shall be responsible for the payment of CIT's attorneys' fees in connection
with the Action and the execution of this Agreement. Except as expressly
released herein, nothing in this Agreement shall release, acquit or discharge
Yucaipa from its obligations and liabilities arising under the Credit Documents as
amended through the Fourth Amendment. This limited release is made solely by
CIT and its personal representatives, successors and assigns on its own behalf and
not in a representative capacity on behalf of any other person and does not
constitute a release by any other person. The persons released pursuant to this
Paragraph l (b), including but not limited to Plaintiffs and the Counterclaim
Defendants, will not assert this release as a defense against any claim brought by
any person other than CIT; provided, however that the persons released pursuant
to this paragraph may assert this release as a defense against claims made by the
persons described in Paragraph 20 of this Agreement.
c) In exchange for and expressly conditioned upon the Parties' execution ofthis
Agreement, Defendant and Com Vest Investment Partners, III, LP ("CornVest")
will execute the Settlement Agreement and Mutual Releases in the form (and, for
the avoidance of doubt, without any changes whatsoever to such form) attached as
Exhibit A to this Agreement (the "Com Vest Settlement Agreement and Mutual
5
Releases"). For the avoidance of doubt, any execution by Defendant of the
Com Vest Settlement Agreement and Mutual Releases shall have no, and be of no,
effect whatsoever unless and until Com Vest executes the Com Vest Settlement
Agreement and Mutual Releases. For the further avoidance of doubt, CIT shall
have no obligation to execute Com Vest Settlement Agreement and Mutual
Releases unless and until Com Vest executes the Com Vest Settlement Agreement
and Mutual Releases. CIT's obligation to execute the Com Vest Settlement
Agreement and Mutual Releases shall terminate upon the earlier of (a) the
ninetieth day following the execution of this Agreement, or (b) the first date, if
any, on which Com Vest initiates any lawsuit, legal action or proceeding against
CIT, in any forum, relating to or arising out of the subject matter of the Com Vest
Settlement Agreement and Mutua! Releases.
d) For the avoidance of doubt and notwithstanding anything herein to the contrary,
nothing in this Agreement shall release any claims, actions, causes of action,
demands for damages, costs, loss of use, expenses, compensation, property
damage, punitive damages, attorney's fees, contribution, indemnification,
consequential damages, and any other expense, benefit, or kind of claim (each
being a "Claim") whatsoever belonging to any person or entity other than the
Parties to this Agreement (and each of their respective personal representatives,
successors and assigns) and Com Vest and its affiliates, provided that for the
further avoidance of doubt, any such Claim shall continue to be subject to any and
all valid limitations and exculpatory provisions set forth in the Credit Documents.
e) For the avoidance of doubt and notwithstanding anything herein to the contrary,
nothing in this Agreement shall release any Claim whatsoever arising from the
6
Parties' conduct after the execution of this Agreement, provided that for the
further avoidance of doubt, any such Claim shall continue to be subject to any and
all valid limitations and exculpatory provisions set forth in the Credit Documents.
2) The Parties will dismiss their respective claims in the Action with prejudice upon
the execution of this Agreement.
3) Plaintiffs shall be responsible for the payment oftheir attorneys' fees and
Defendant shall be responsible for the payment of its attorneys' fees, in each case
in connection with the Action and this Agreement.
4) CIT confirms that it has not charged the revolver for attorneys' fees arising from
the Action and this Agreement, and acknowledges that the release provided for in
this Agreement includes a limited release of any right pursuant to the Credit
Documents to be reimbursed for such attorney's fees arising from the Action and
this Agreement.
5) Yucaipa and Allied (and each of their respective affiliates and related parties)
agree not to object to, challenge or contest, either directly or indirectly, or
otherwise encourage, induce, support or facilitate, either directly or indirectly, any
other person or party to object to, challenge or contest CIT's assertion of priority
with respect to payment of the revolving loans over the term loans and the
obligations with respect to hedge agreements and letters of credit under the Credit
Agreement (as defined below) in the event of an Allied Liquidation (as defined
below), in or out of bankruptcy. For the avoidance of doubt, Yucaipa and Allied
(and each of their respective affiliates and related parties) agree that CIT's
revolver has priority over the term loans (including loans made as a result of
draws on letters of credit) and the obligations with respect to hedge agreements
7
and letters of credit in any Liquidation, and that Yucaipa and Allied (and each of
their respective affiliates and related parties) will not object to, challenge or
contest any assertion by CIT of such priority. For purposes of this Agreement, a
"Liquidation" means any sale, or series of sales, of all or substantially all of
Allied's assets primarily for cash (including but not limited to a sale of AHied's
assets pursuant to Chapter 7 of the Bankruptcy Code) other than a sale, or series
of sales, of Allied's business operations as a going concern. Any sale or series of
sales that is not a Liquidation shall be treated as a Restructuring for purposes of
this Agreement. In addition, for purposes of this Agreement, the "Credit
Agreement" shall mean: (i) that certain Amended and Restated First Lien Secured
Super-Priority Debt in Possession and Exit Credit and Guaranty Agreement, dated
as of March 30, 2007, as amended supplemented, amended and restated or
otherwise modified to date and from time to time, among Allied and its affiliates
party thereto, the lenders party thereto from time to time and CIT, as
administrative agent and collateral agent; and (ii) any and each of the Collateral
Documents as that term ("Collateral Documents") is defined in that certain
Amended and Restated First Lien Secured Super-Priority Debt in Possession and
Exit Credit and Guaranty Agreement, dated as of March 30, 2007, as amended
and supplemented, amended and restated or otherwise modified to date and from
time to time, among Allied and its affiliates party thereto, the lenders party thereto
from time to time and CIT, as administrative agent and collateral agent.
6) "Most Favored Nation"status- Yucaipa and Allied (and each of their respective
affiliates and related parties) agree that in any restructuring, recapitalization or
sale (including but not limited to any prepayment of any of the first lien term
8
loans or obligations with respect to hedge agreements or payment of any of the
reimbursement obligations with respect to letters of credit), foreclosure sale, any
sale under or pursuant to section 363 of the Bankruptcy Code for consideration
other than cash, any sale under a Chapter 11 plan for consideration other than
cash, or any credit bid (whether in a foreclosure, 363 or plan of reorganization
sale) by any lender and any related subsequent transaction with respect to any
assets obtained by virtue of a credit bid) of Allied ( coHectively, a "Restructuring")
to which Yucaipa consents while Yucaipa retains its Requisite Lender status,
CIT's recovery on account of its revolving loans shall be identical in form and
percentage based on outstanding principal amount to that obtained by the first Hen
term loan lenders (including Yucaipa) on account of the first lien term loans
(including loans made as a result of draws on letters of credit). Yucaipa further
agrees that, if Yucaipa has not retained its Requisite Lender status, but still retains
any economic interest in the Credit Agreement, Yucaipa (and its respective
affiliates and related parties) will not object to, challenge or contest, either
directly or indirectly, or otherwise encourage, induce, support or facilitate, either
directly or indirectly, any other person or party to object to, challenge or contest
CIT's assertion that CIT's recovery on account of its revolving loans shall be
identical in form and percentage based on outstanding principal amount to that
obtained by the first lien term loan lenders (including Yucaipa) on account of the
first lien term loans (including loans made as a result of draws on letters of credit)
in any Restructuring. Notwithstanding the foregoing, CIT's recovery in a
Liquidation (and Yucaipa's and Allied's obligations under Paragraph 5 of this
Agreement) shall be unaffected by this Paragraph 6. For purposes of this
9
Agreement, Yucaipa shall be deemed to have Requisite Lender status so long as
Yucaipa either owns a majority of the outstanding obligations owed to Lenders
under the Credit Agreement or has the right to vote a majority of the outstanding
obligations owed to Lenders under the Credit Agreement, whether such right to
vote results from direct ownership, from contract or some other derivative rights
set forth in any contract.
7) CIT in its capacity as agent or otherwise agrees to support any Restructuring to
which Yucaipa consents while Yucaipa retains any economic interest in the Credit
Agreement or proceeds received therefrom and which is supported by lenders
holding a majority of the combined Term Loan Exposure and LC Exposure (each
as defined in the Credit Agreement) (other than Yucaipa) so long as CIT's
recovery on account of its revolving loans shall be identical in form and
percentage based on outstanding principal amount to that obtained by the first lien
term loan lenders (including but not limited to Yucaipa) on account of the first
lien tenn loans (including loans made as a result of draws on letters of credit).
Notwithstanding the foregoing, CIT's recovery in a Liquidation (and Yucaipa's
and Allied's obligations under Paragraph 5 of this Agreement) shall be unaffected
by this Paragraph 7.
8) After the date of execution of this Agreement, Yucaipa agrees to sponsor, support
and use commercially reasonable efforts to obtain, and CIT agrees to support and
vote in favor of, an amendment at Allied's cost that would provide that, for all
lender actions and consents (other than with respect to the exercise of remedies
(including but not limited to directing any credit bid), which shall be at Yucaipa's
direction so long as Yucaipa retains the Requisite Lender status), in addition to a
10
Requisite Lender vote, such action or consent would require the support of
lenders holding a majority of the first lien debt (other than Yucaipa). Yucaipa and
CIT shall coordinate with one another in the disclosure of the terms of this
Agreement to other lenders in the Allied Facilities. Yucaipa also agrees that from
and after the date this Agreement is executed and so long as Yucaipa shall retain
its Requisite Lender status, Yucaipa will not seek or take tender actions (other
than with respect to the exercise of remedies (including but not limited to
directing any credit bid), which shall be at Yucaipa's direction so long as Yucaipa
retains its Requisite Lender status), with respect to Allied, without the support of
lenders holding a majority of the first lien debt (other than Yucaipa). The parties
agree that CIT's obligations pursuant to Paragraphs 11 and 13 of this Agreement
are not subject to and are exceptions to the requirements of this Paragraph 8 and
therefore do not require the vote of lenders, the Requisite Lender or the support of
lenders holding a majority of the first lien debt (other than Yucaipa).
9) After the date this Agreement is executed, Allied agrees to provide CIT with
operational business plans as required by Credit Agreement 5.1 (i), solely on a
going forward basis. Allied agrees to permit CIT's appraiser to conduct updated
collateral appraisals as required by the Credit Agreement.
1 0) CIT and its affiliates and related parties shall not and wiH not object to, challenge
or contest, either directly or indirectly, the validity of the Fourth Amendment or
any portion thereof, the Yucaipa-Com Vest Assignment Agreement, or Yucaipa's
status as Requisite Lender. CIT acknowledges that it recorded Yucaipa's first lien
loans with a face value in the aggregate principal amount of$145,112,547.06 on
the Register (as defined in the Credit Agreement) and expressly recognizes the
11
validity and enforceability of the Fourth Amendment. CIT acknowledges as a
result of the foregoing, Yucaipa owns a majority of the combined Tenn Loan
Exposure and LC Exposure (each as defined in the Credit Agreement) and,
accordingly, Yucaipa is the Requisite Lender for all purposes including the
exercise of remedies. CIT further agrees that (unless Yucaipa directs CIT to
transfer all or any portion of the interest that Yucaipa currently has in the first lien
loans) CIT will take no action to remove Yucaipa's first lien loans or its interest
in the letter of credit facility from the Register or to challenge Yucaipa's
ownership of such first lien loans and letter of credit facility. CIT and its affiliates
and related parties shall not and will not encourage, induce, support or facilitate,
either directly or indirectly, any other person or party to object to, challenge or
contest, either directly or indirectly, the validity of the Fourth Amendment or any
portion thereof, the Yucaipa-Com Vest Assignment Agreement, or Yucaipa's
status as Requisite Lender. CIT also agrees not to object to, challenge or contest,
either directly or indirectly, or otherwjse encourage, induce, support or facilitate,
either directly or indirectly, any other person or party to object to, challenge or
contest the validity or perfection ofYucaipa's rights with respect to any Term
Loans and/or LC Commitments (as defined in the Credit Agreement) that have
been recorded in the Register.
11) For the period from the date this Agreement is executed to the date ofthe
effectiveness of CIT's resignation as Administrative and Collateral Agents, CIT
agrees as follows with respect to outstanding administrative issues, but only to the
extent such actions can be accomplished prior to the date of the effectiveness of
CIT's resignation: (a) as Collateral Agent, CIT will release title for scrapping or
12
transferring equipment to and from Canada on terms proposed by Allied and
approved by Yucaipa in its capacity as Requisite Lender under and in accordance
with the terms of the Credit Agreement; and/or (b) to the extent that the LC
Commitments are reduced or terminated, as Administrative Agent, will process
any distributions ofthe LC Deposits to the Lenders holding the LC Commitments
(including, without limitation, Yucaipa) under and in accordance with the terms
of the Credit Agreement. CIT also win provide Allied with a current Jist
identifying all first lien Lenders holding Term Loans, Revolving Loans or LC
Commitments under the Credit Agreement. CIT will cooperate in good faith with
the replacement Administrative Agent and Collateral Agent in order to achieve an
efficient transition of those positions to such new Agent or Agents. CIT as
Collateral Agent will follow Yucaipa's directions issued in its capacity as
Requisite Lender under and in accordance with the terms of the Credit
Agreement.
4
12) Yucaipa shall indemnify CIT and hold CIT harmless with respect to all claims,
lawsuits, losses, damages or fees arising out of or relating to: (i) CIT's resignation
as Administrative and Collateral Agents pursuant to Yucaipa's instructions given
as Requisite Lender at any time, except that Yucaipa shall not indemnify CIT to
the extent a Lender or other person or entity asserts that any lien on assets or
property of Allied shall become unperfected or is otherwise ineffective as a result
of CIT's resignation; (ii) CIT's express recognition herein of the validity and
enforceability ofthe Fourth Amendment and the Yucaipa-Com Vest Assignment
Agreement; (iii) CIT's formal recordation of Yucaipa's loans on the Register; (iv)
4
The Parties hereto refer to and expressly incorporate herein by this reference the terms of their supplemental
13
CIT's acknowledgment of Yucaipa as the Requisite Lender; (v) the actions
required by Paragraph 11 herein; and (vi) the execution of this Agreement. CIT
represents that it has not committed or represented to any lender or third party that
it will not resign as Administrative or Collateral Agent.
13) Administrative Agent and Collateral Agent
Upon written demand by Yucaipa, which demand shaH be made by no later than
the sixtieth day following the execution of this agreement, CIT will and shall
resign as Administrative Agent and Collateral Agent; provided, however, that
Yucaipa shall be entitled to a extension of the date by which it must
deliver such written demand to CIT if, notwithstanding Yucaipa's good faith
efforts to appoint a successor Administrative Agent and/or Collateral Agent,
Yucaipa is unable to deliver such demand within the initial period. The
resignation with respect to CIT's capacity as Administrative Agent and Collateral
Agent will take effect contemporaneously with the appointment of a successor
Administrative Agent and/or Collateral Agent, and in accordance with the
provisions of Section 9.7 of the Credit Agreement and Section 8 ofthe Pledge and
Security Agreement. Yucaipa and Allied agree to have a successor Administrative
Agent and Collateral Agent (with prior vetting by CIT pursuant to section 14
below) in place at the time or times Yucaipa requests CIT's resignation, and with
such successor Agent or Agents' beginning to serve in each capacity as soon as all
documentation reasonably requested by such successor Agent or Agents or
required pursuant to the Credit Agreement or other Credit Documents to effect
such replacement and all acts required of CIT and such successor Agent or Agents
agreement of even date herewith.
14
pursuant to the Credit Agreement have been executed or completed, as applicable.
Until CIT resigns and Administrative Agent and Collateral Agent, CIT agrees not
to exercise any remedies without the prior written consent of Yucaipa.
14) CIT will have consent rights over the appointment of a replacement
Administrative Agent and Collateral Agent. Yucaipa will propose a list of three
potential replacement agents and CIT will choose its replacement from among the
members of the list. CIT and Yucaipa acknowledge that the Administrative Agent
and the Collateral Agent may not be the same entity and the rights in this
paragraph apply separately to each if they are different entities.
15) CIT agrees that it wil1 not take any action that would cause or encourage a
bankruptcy (involuntary or otherwise) of Allied prior to the expiration of the
Allied credit facility in or about May of2012.
16) Effective as of the date this Agreement is executed, Allied hereby agrees to give
notice to Administrative Agent pursuant to Section 2.13(b )(iii) of the Credit
Agreement that the LC Commitments shall be reduced by $16,928,475. Upon the
effectiveness of reductions in the LC Commitments, CIT sha11 distribute to the
Lenders the funds in compliance with the terms of the Credit Agreement.
17) Except to the extent expressly stated otherwise in Paragraph 6 herein, Yucaipa's
obligations under Paragraphs 6, 7, and 8 of this Agreement are conditioned on
Yucaipa maintaining its Requisite Lender status.
18) This Agreement shall be construed under the laws ofthe state ofNew York.
19) This Agreement contains the entire agreement between and among the Parties
hereto regarding the subject matter ofthis Agreement. None of the Parties has
relied upon any representation by any other Party or person or such Party or
15
person's counsel or other representatives in entering into this compromise
settlement Agreement. This Agreement constitutes a limited release and complete
settlement and accord and satisfaction of the claims described in Paragraphs l(a)
and 1 (b) hereof and an accord and satisfaction as to the other matters expressly
included in this Agreement. Notwithstanding this provision, the Parties' rights
and obligations shall continue to be governed by the Credit Documents (as that
term is defined in the Credit Agreement) except to the extent that the tenns of this
Agreement conflict with the terms of the Credit Documents, in which case the
terms of this Agreement shall govern the Parties' respective rights and
obligations.
20) This Agreement is binding upon and inures to the benefit of all such Parties'
executors, administrators, personal representatives, successors, participants-in
interest, heirs and assigns.
21) The Parties expressly deny any and all allegations of wrongdoing (whether
intentional or unintentional), and this Agreement and the Parties' respective
obligations arising or created pursuant to this Agreement shall not be construed as
an admission of any such wrongdoing by any of the Parties. This is a compromise
settlement of disputed claims and the other matters released by this Agreement
made to end the costs and uncertainty of litigation.
22) This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original but all of which together shall constitute one and the
same instrument. This Agreement may be executed by facsimile signature and
each such signature shall be treated in all respects as having the same effect as an
original signature.
16
23) This Agreement shall be binding on and inure to the benefit of Allied's,
Yucaipa's, and CIT's affiliates, including but not limited to such affiliates that are
Borrowers and Guarantors under the Credit Documents, all of whom are intended
to be bound by, and to be third party beneficiaries of this Agreement. No other
person or entity shall have or be entitled to assert rights or benefits under this
Agreement.
24) Each of the Parties agrees that a breach of this Agreement will cause irreparable
injury to the other Parties, that the other Parties have no adequate remedy at law
in respect of such breach and, as a consequence, that each and every covenant
contained in this Agreement shall be specifically enforceable against each of the
Parties.
25) Ail notices required or permitted by this Agreement shall be in writing and shaU
be sent by any form of overnight mail and addressed as follows:
If to Allied:
Michael E. Johnson, Esq.
Troutman Sanders LLP
600 Peachtree Street, N.E., Suite 5200
Atlanta, Georgia 3 0 3 0 8 ~ 2 2 1 6
If to Yucaipa:
David E. Spalten, Esq.
Kasowitz, Benson, Torres & Friedman LLP
1360 Peachtree Street, N.E., Suite 1150
Atlanta, Georgia 30309
If to CIT:
Douglas H. Flaum, Esq.
Israel David, Esq.
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, New York 10004-1980
17
26) The persons signing this Agreement each represent and warrant that he or she has
the authority to enter into this Agreement on behalf of the entities for which they
are signing.
18
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized attorneys.
ALLIED SYSTEMS HOLDINGS, INC.,
ALLIED SYSTEMS, LTD. (L.P.) and the
certain guarantor subsidiaries of Allied
Systems Holdings, Inc. and Allied Systems,
Ltd. (L.P.), each of which are parties to the
Credit Agreement as defined above
By: ________________ __
John Blount
Chief Administrative Officer, Senior Vice
President, Secretary and General Counsel
ofAllied Systems Holdings, Inc.
2302 Parklake Drive, Suite 600
Atlanta, Georgia 30345
Telephone: (404)
Facsimile: (404)
Counselfor Allied Systems Holdings, Inc.,
Allied Systems, Ltd (L.P.) and the certain
guarantor subsidiaries of Allied Systems
Holdings, Inc. and Allied Systems, Ltd (L.P.),
each of which are parties to the Credit
Agreement as defined above
Dated:
----------------
KASOWITZ, BENSON, TORRES
& . LL .. P

By: David E. ,
1360 Peachtree Street, N.E., Suite 1150
Atlanta, Georgia 30309
Telephone: (404) 260-6080
Facsimile: ( 404) 260-6081
Counsel for Yucaipa American Alliance Fund
I, LP and Yucaipa American Alliance
(Parallel) Fund I, LP
Dated: oh-6_o//
f I
19
FRIED, FRANK, HARRIS, SHRIVER
& JACOBSON LLP
By:----------
Douglas H. Flaum
Israel David
One New York Plaza
New York, New York 10004-1980
Telephone: (212) 859-8000
Facsimile: (212) 859-4000
Counsel.for The CIT Group/Business Credit,
Inc.
Dated:
----------------
8360129
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized attorneys.
ALLIED SYSTEMS HOLDINGS, INC.,
ALLIED SYSTEMS, LTD. (L.P.) and the
certain guarantor subsidiaries of Allied
Systems Holdings, Inc. and Allied Systems,
Ltd. (L.P.}, each of which are parties to the
Credit Agreement as defined above

John Blount
Chief Administrative Officer, Senior Vice
President, Secretary and General Counsel
of Allied Systems Holdings, Inc.
2302 Parldake Drive, Suite 600
Atlanta, Georgia 30345
Telephone: (404)
Facsimile: (404) 370-4206
Counsel for Allied Systems Holdings, Inc.,
Allied Systems, Ltd. (L.P.) and the certain
guarantor subsidiaries of Allied Systems
Holdings, Inc. and Allied Systems, Ltd. (L.P.),
each of which are parties to the Credit
Agreement as defined above
Dated: \ 7,. J
KASOWITZ, BENSON, TORRES
& FRIEDMAN LLP
By: ________________ __
David E. Spalten
1360 Peachtree Street, N.E., Suite 1150
Atlanta, Georgia 30309
Telephone: (404) 260-6080
Facsimile: ( 404) 260-6081
Counsel for Yucaipa American Alliance Fund
I, LP and Yucaipa American Alliance
(Parallel) Fund I. LP
Dated: _______ _
19
FRIED, FRANK, HARRIS, SHRIVER
& JACOBSON LLP
By: _______________ _
Douglas H. Flaum
Israel David
One New York Plaza
New York, New York 10004-1980
Telephone: (212) 859-8000
Facsimile: (212) 859-4000
Counsel for The CIT Group/Business Credit,
Inc.
Dated:
---------------
8360129
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized attorneys.
ALLIED SYSTEMS HOLDINGS, INC.,
ALLIED SYSTEMS, LTD. (L.P.) and the
certain guarantor subsidiaries of Allied
Systems Holdings, Inc. and Allied Systems,
Ltd. (L.P.), each of which are parties to the
Credit Agreement as defined above
By:
-------------------
John Blount
Chief Administrative Officer, Senior Vice
President, Secretary and General Counsel
of Allied Systems Holdings, Inc.
2302 Parklake Drive, Suite 600
Atlanta, Georgia 30345
Telephone: (404) 687-5756
Facsimile: (404) 370-4206
Counsel for Allied Systems Holdings, Inc.,
Allied Systems, Ltd (L.P.) and the certain
guarantor subsidiaries of Allied Systems
Holdings, Inc. and Allied Systems, Ltd (L.P.),
each of which are parties to the Credit
Agreement as defined above
Dated:
------------------
KASOWITZ, BENSON, TORRES
& FRIEDMAN LLP
By:
-------------------
David E. Spalten
1360 Peachtree Street, N.E., Suite 1150
Atlanta, Georgia 30309
Telephone: (404) 260-6080
Facsimile: ( 404) 260-6081
Counsel for Yucaipa American Alliance Fund
I, LP and Yucaipa American Alliance
(Parallel) Fund I, LP
Dated:
----------------
19
FRIED, FRANK, HARRIS, SHRIVER
&JACOBSON P
One New York Plaza
New York, New York 10004-1980
Telephone: (212) 859-8000
Facsimile: (212) 859-4000
Counsel for The CIT Group/Business Credit,
Inc.
Dated: f<._ )s- J /1
---1-7 -'-----1-f-'---
8360129
EXHIBIT A
SETTLEMENT AGREEMENT AND MUTUAL RELEASES
This Settlement Agreement and Mutual Releases (the "Agreement") is dated and
effective as of the __ day of ______ , 2011, by and between The CIT Group/Business
Credit, Inc. (hereinafter referred to as "CIT") and Com Vest Investment Partners III, LP
("Com Vest").
WHEREAS, Allied Systems Holdings, Inc. ("Allied"), Yucaipa American Alliance Fund
I, LP and Yucaipa American Alliance (Parallel) Fund I, LP (collectively, "Plaintiffs") filed a
Verified Complaint on or about November 13, 2009 and a First Amended Complaint on or about
December 28,2010 (the "First Amended Complaint") seeking damages and other legal, equitable
and extraordinary relief against CIT in the Superior Court of Fulton County, Georgia, Civil
Action File No. 2009CV177574 (as amended to date, the "Complaint"); and
WHEREAS, CIT filed a Verified Answer and Counterclaims against Plaintiffs and
certain Counterclaim Defendants on or about December 21, 2009 seeking damages and other
legal, equitable and extraordinary relief against Plaintiffs and the Counterclaim Defendants (the
"Answer and Counterclaims," and together with the Complaint and the First Amended
Complaint, the "Action"); and
WHEREAS, the Complaint, the First Amended Complaint, and the Answer and
Counterclaims contained allegations relating to Com Vest; and
WHEREAS, CIT and Com Vest desire to fully settle and compromise all disputes, and to
provide for the releases set forth and contained in this Agreement, on the terms and conditions
set forth in this Agreement;
NOW, THEREFORE, in consideration of the promises, covenants and other
considerations set forth herein, the sufficiency of which is hereby acknowledged, and in full and
final satisfaction of all past, present and future claims released under this Agreement, CIT and
Com Vest agree as follows:
1. CIT does hereby release, acquit and forever discharge Com Vest and all of its past
and present parents, subsidiaries, affiliates, representatives, successors, assigns, officers,
directors, agents, partners, attorneys and employees from any and all claims, actions, causes of
action, demands for damages, costs, loss of use, expenses, compensation, property damage,
punitive damages, attorney's fees, contribution, indemnification, consequential damages, and any
other expense, benefit, or kind of claim whatsoever against Com Vest whether known or
unknown, whether past, present or future, whether contingent or fixed, relating to Allied or
Yucaipa that have arisen at any time on or before the full execution of this Agreement 1) that
were or that could have been asserted in the Action and/or 2) otherwise arising from Com Vest's
purchase, ownership or sale to Yucaipa of its interests in AHied's debt refened to in the
Complaint, Amended Complaint and Answer and Counterclaims in the Action. CIT stipulates
that this is a full, complete, unconditional and final release and resolution of the foregoing claims
against Com Vest, except as required to enforce this Agreement. This release is made solely by
CIT and its personal representatives, successors, and assigns on its own behalf and not in a
representative capacity on behalf of any other person and does not constitute a release by any
other person.
2. Com Vest does hereby release, acquit and forever discharge CIT (whether in its
capacity as an agent, a lender or otherwise) and aH of its past and present parents, subsidiaries,
affiliates, representatives, successors, assigns, officers, directors, agents, partners, attorneys and
employees from any and all claims, actions, causes of action, demands for damages, costs, loss
ofuse, expenses, compensation, property damage, punitive damages, attorney's fees,
contribution, indemnification, consequential damages, and any other expense, benefit, or kind of
claim whatsoever against CIT (whether in its capacity as an agent, a lender or otherwise) whether
known or unknown, whether past, present or future, whether contingent or fixed, relating to
Allied or Yucaipa that have arisen at any time on or before the full execution of this Agreement
1) that were or that could have been asserted in the Action and/or 2) otherwise arising from
CIT's acts and omissions as alleged in the Complaint or the First Amended Complaint in the
Action or from CIT's service and conduct as and/or resignation as Administrative Agent and/or
Collateral Agent and/or 3) otherwise arising from CIT's purchase or ownership ofits interests in
the debt of Allied referred to in the Complaint, Amended Complaint and Answer and
Counterclaims in the Action. Com Vest stipulates that this is a full, complete, unconditional and
final release and resolution of the foregoing claims against CIT, except as required to enforce
this Agreement. This release shall also include a release from Com Vest to CIT (whether in its
capacity as an agent, a lender or otherwise) of any and all claims for all of Com Vest's fees and
expenses relating to any subpoena served upon Com Vest, Cecilio Rodriguez, and Mark Hughes
by CIT relating to the Action. This release is made solely by Com Vest and its personal
representatives, successors, and assigns on its own behalf and not in a representative capacity on
behalf of any other person and does not constitute a release by any other person.
3. This Agreement shall be construed under the laws of the state ofNew York.
Dated:
-------
JONES, FOSTER, JOHNSTON
& STUBBS, P.A.

Robert W. Wilkins
500 South Flagler Drive, Suite 11.00
West Palm Beach, Florida 33401
Telephone: (561)
Facsimile: (561) 650-0412
Counseljor Com Vest Investment Partners III, LP
FRIED, FRANK, HARRIS, SHRIVER
& JACOBSON LLP
By:----------
Douglas H. Flaum
Israel David
One New Y ark Plaza
New York, New York 10004-1980
Telephone: (212) 859-8000
Facsimile: (212) 859-4000
Counsel for The CIT Group/Business Credit, Inc.
8415584
SUPPLEMENTAL AGREEMENT
This Supplemental Agreement ("Supplemental Agreement") is entered into by and
between Allied Systems Holdingsj Inc. ("Allied"), Yucaipa American Alliance Fund I, LP
("Y AAF I"), Yucaipa American Alliance (Parallel) Fund I, LP ("YAAF Parallel", and together
with YAAF I, "Yucaipa," and together with Allied, "Plaintiffs") and The CIT Group/Business
Credit, Inc. (hereinafter referred to as "Defendant" or "CIT") and is intended by the parties
hereto to be incorporated into the Settlement Agreement and Mutual Limited Releases dated of
the fifth day of December 2011 (the "Settlement Agreement"). The terms used herein, unless
otherwise defined herein, shall have the same meanings as in the Settlement Agreement.
IT IS HEREBY AGREED AS FOLLOWS:
1. Allied and Yucaipa have notified CIT that they contend that Credit Agreement
Section 2.4(1)(ii) unconditionally requires CIT (and any other Agent) to transmit
directly in applicable pro rata shares to all Lenders any funds (including but not
limited to LC Deposits) which, pursuant to provisions of the Credit Agreement,
are required to be distributed to the Lenders by CIT (or other Agent) as a result of
the termination or reduction of the LC Commitments under the Letter of Credit
Facility.
2. CIT agrees to indemnify and hold harmless Allied and Yucaipa from any claims
asserted by any person, including but not limited to any Lender under the Credit
Agreement, arising from or related to any attempt by CIT or any Agent to seize or
otherwise effect a set-off for CIT's benefit against any such funds it is required to
distribute as a result of the reduction or termination of the Letter of Credit
Facility.
3. Yucaipa's indemnification obligations under Paragraph 12 of the Settlement
Agreement shall not apply to claims asserted by a Lender or any other person
against CIT or any other Agent arising from or related to CIT's or any other
Agent's attempts to assert a setwoff or other claim for CIT's benefit against funds
it receives on account of the reduction or termination of the Letter of Credit
Facility as more fully described in Paragraphs ll(b) and 16 of the Settlement
Agreement.
4. The Parties shall keep the terms of this Supplemental Agreement confidential and
such terms shall not be disclosed in any manner (other than the reference to it in
the Settlement Agreement), except: (i) that the Parties may disclose the terms to
such of their respective employees, officers, directors, auditors, accountants,
attorneys or agents as may reasonably need to know the terms in order to comply
with their duties; and (ii) as may be required by applicable law or regulation. In
the event that any Party receives legal process calling for the disclosure of the
terms of this Supplemental Agreement, it shall provide the other Parties prompt
notice (through their counsel) in order to give the other Parties a reasonable
opportunity to assert through proper legal means any claimed right to
confidentiality.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Agreement
to be executed by their duly authorized attorneys.
2
DATED: December 5, 2011
3
ALLIED SYSTEMS HOLDINGS, INC.

JohnBlount
Chief Administrative Officer, Senior Vice
President, Secretary and General Counsel
of Allied Systems Holdings, Inc.
2302 Parklake Driv.e, Suite 600
Atlanta, Georgia 30345
Telephone: (404) 687-5756
Facsimile: (404) 370-4206
Counsel for Allied Systems Holdings, Inc.

& FRIEDMAN LLP

David E. Spalten
1360 Peachtree Street, N.E., Suite 1150
Atlanta, Georgia 30309
Telephone: (404) 260-6080
Facsimile: (404) 260-6081
Counsel for Plaintiffs Yucaipa American
Alliance Fund I, LP and Yucaipa American
Alliance (Parallel) Fund I, LP
FRIED, FRANK, HARRIS, SHRIVER
& JACOBSON LLP
By: ________________ _
Douglas H. Flaum
Israel David
One New York Plaza
New York, New York 10004-1980
Telephone: (212) 859-8000
Facsimile: (212) 859-4000
Counsel for Defendant The CIT
Group/Business Credit, Inc.
8383674
DATED: December 5, 2011
3
ALLIED SYSTEMS HOLDINGS, INC.
By:
-----------------
John Blount
Chief Administrative Officer, Senior Vice
President; Secretary and General Counsel
of Allied Systems Holdings, Inc.
2302 Parklake Drive, Suite 600
Atlanta, Georgia 30345
Telephone: (404) 687-5756
Facsimile: (404) 370-4206
Counsel for Allied Systems Holdings, Inc.
KASOWJTZ, BENSON, TORRES
& F R I E D " ~ ~ ; _ _____...
By: . . ?-/ z
David E. Spa
1360 Peachtree Street, N.E., Suite 1150
Atlanta, Georgia 30309
Telephone: (404) 260-6080
Facsimile: (404) 260-6081
Counsel for Plaintiffs Yucaipa American
Alliance Fund I, LP and Yucaipa American
Alliance (Parallel) fund I, LP
FRIED, FRANK, HARRIS, SHRIVER
& JACOBSON LLP
By: ________________ _
Douglas H. Flaum
Israel David
One New York Plaza
New York, New York 10004-1980
Telephone: (212) 859-8000
Facsimile: (212) 859-4000
Counsel for Defendant The CIT
Group/Business Credit; Inc.
8383674
DATED: December 5, 2011
3
ALLIED SYSTEMS HOLDINGS, INC.
By: ________________ _
John Blount
Chief Administrative Officer, Senior Vice
President, Secretary and General Counsel
of Allied Systems Holdings, Inc.
2302 Parklake Drive, Suite 600
Atlanta, Georgia 30345
Telephone: (404) 687-5756
Facsimile: (404) 370-4206
Counsel for Allied Systems Holdings, Inc.
KASOWITZ, BENSON, TORRES
& FRIEDMAN LLP
By: ________________ __
David E. Spalten
1360 Peachtree Street, N.E., Suite 1150
Atlanta, Georgia 30309
Telephone: (404) 260-6080
Facsimile: (404) 260-6081
Counsel for Plaintiffs Yucaipa American
Alliance Fund I, LP and Yucaipa American
Alliance (Parallel) Fund I, LP
FRIED, FRANK, HARRIS, SHRIVER
& JACOBSON LLP
B y : ~ (X/
m;ugiaSRFiaUill
Israel David
One New York Plaza
New York, New York 10004-1980
Telephone: (212) 859-8000
Facsimile: (212) 859-4000
Counsel for Defendant The CIT
Group/Business Credit, Inc.
8383674
EXHIBITH
FILED: NEW YORK COUNTY CLERK 03/23/2012
INDEX NO. 650150/2012
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 03/23/2012
IN THE SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
ALLIED SYSTEMS HOLDINGS, INC., YUCAIPA
AMERICAN ALLIANCE FUND I, LP, and
YUCAIPA AMERICAN ALLIANCE (PARALLEL)
FUND I, LP,
FllEDTN OFFICE
- i 1011 J
DEPUTY CLERK SUPERIOR COURT
COUNTY GA
Plaintiffs and
Counterclaim-Defendants,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 2009CV!77574
v.
THE CIT GROUP/BUSINESS CREDIT, INC.,
V.
Defendant and
Counterclaim-Plaintiff,
MARK GENDREGSKE, GUY RUTLAND,
IV, BRIAN CULLEN, JOS OPDEWEEGH,
IRA TOCHNER AND DEREX WALKER,
Counterclaim-Defendants.
MUTUAL DISMISSALS WITH PREJUDICE
COME NOW the parties, by and through their respective counsel, and mutually dismiss
the above-styled action as follows:
I) Plaintiff Allied Systems Holdings, Inc. hereby dismisses with prejudice the
Complaint, the First Amended Complaint and all claims it asserted in the Complaint
and in the First Amended Complaint;
2) Plaintiffs Yucaipa American Alliance Fund I, LP and Yucaipa American Alliance
(Parallel) Fund I, LP hereby dismiss with prejudice the Complaint, the First Amended
Complaint and all claims they asserted in the Complaint and in the First Amended
Complaint; and
3) Defendant and Counterclaim-Plaintiff The CIT Group/Business Credit, Inc. hereby
dismiss with prejudice the Verified Answer and Counterclaims and all claims it
asserted in its Verified Answer and Counterclaims.
Each party shall bear its own attorneys' fees and costs.
This 7th day of December, 2011.

Michael E. Esq.
Georgia Bar N'o .. _.395039
TROUTMAN SANDERS LLP
5200 Bank of America Plaza
600 Peachtree Street, N.E.
Atlanta, GA 30308-2216
Telephone: (404) 885-3000
Facsimile: ( 404) 885-3900
Counsel.for Plaintiff
Allied Systems Holdings, Inc.
2
I
Is-' /- "'
/'- "/'-:_, __
CY1 ____/ C/
David E. Spalteq,Es>"
Georgia Bar No. 669010
Daniel A. Cohen, Esq.
Georgia BarNo. 173474
Paul G. Williams, Esq.
Georgia Bar No. 764925
KASOWITZ, BENSON,
FRIEDMAN LLP

TORRES
One Midtown Plaza- Suite 1150
1360 Peachtree Street, NE
Atlanta, GA 30309
Telephone: (404) 260-6080
Facsimile: ( 404) 260-6081
Counsel for
&
Yucaipa American Alliance Fund I and Yucaipa
American Alliance (Parallel) Fund I, LP
!;morn;;, ;E;q., ~ d "
Douglas Flaum, Esq., Admitted pro hac vice
FRIED, FRANK, HARRIS, SHRIVER &
JACOBSON LLP
One New York Plaza
New York, NY 10004
Telephone: 212-859-8000
Facsimile: 212-859-4000
H. Lamar Mixson, Esq.
Georgia Bar No. 514012
Lisa R. Strauss, Esq.
Georgia Bar No. 686943
BONDURANT, MIXSON & ELMORE, LLP
1201 West Peachtree St. NW, Ste 3900
Atlanta, GA 30309
Telephone: 404-881-4100
Facsimile: 404-881-4111
Attorneys for The CIT Group/Business Credit,
Inc.
3
EXHIBIT I
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

------------------------------------------------------- x
BDCM OPPORTUNITY FUND II, LP,
BLACK DIAMOND CLO 2005-1 LTD, and
SPECTRUM INVESTMENT PARTNERS,
L.P.,

Plaintiff,
- against -
YUCAIPA AMERICAN ALLIANCE FUND
I, LP, and YUCAIPA AMERICAN
ALLIANCE (PARALLEL) FUND I, LP,

Defendants.
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
------------------------------------------------------- x


Index No. ____________________
Date purchased: _______________

Plaintiffs designate New York
County as the place of trial.
The basis of venue is plaintiffs
principal place of business.

SUMMONS


TO THE ABOVE-NAMED DEFENDANTS:
YOU ARE HEREBY SUMMONED to answer the complaint in this action and
to serve a copy of your answer or, if the complaint is not served with this summons, to serve a
notice of appearance, on Plaintiffs attorney within twenty (20) days after the service of this
summons, exclusive of the day of service (or within thirty (30) days after the service is complete
if this summons is not personally delivered to you within the State of New York); and in case of
your failure to appear or answer, judgment will be taken against you by default for the relief
demanded in the complaint.



FILED: NEW YORK COUNTY CLERK 01/18/2012
INDEX NO. 650150/2012
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/18/2012
Dated: New York, New York
January 17,2012
TO:
Yucaipa American Alliance Fund I, LP
c/o The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
SCHULTE ROTH & ZABEL LLP
B y:_--lf----------t----t--'---------
Adam C. Hi-ris
Robert J. \#ard
919 Third Avenue
New York, New York 10022
(212) 756-2000
Attorneys for Plaintiffs BDCM Opportunity
Fund II, LP, Black Diamond CLO 2005-1
Ltd., and Spectrum Investment Partners,
L.P.
Yucaipa American Alliance (Parallel) Fund I, LP
c/o The Corporation Trust Company
Corporation Trust Center
1209 Orange Street
Wilmington, DE 19801
2


DOC ID-17979399.1
1

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------- x
BDCM OPPORTUNITY FUND II, LP,
BLACK DIAMOND CLO 2005-1 LTD, and
SPECTRUM INVESTMENT PARTNERS,
L.P.,

Plaintiffs, Index No.:
- against -
YUCAIPA AMERICAN ALLIANCE FUND
I, LP, and YUCAIPA AMERICAN
ALLIANCE (PARALLEL) FUND I, LP,
Defendants.
:
:
:
:
:
:
:
:
:
:
:
:
:
------------------------------------------------------- x
COMPLAINT


Plaintiffs BDCM Opportunity Fund II, LP (BDCM), Black Diamond
CLO 2005-1 Ltd. (Black Diamond CLO), and Spectrum Investment Partners, L.P.
(Spectrum), by their attorneys Schulte Roth & Zabel LLP, as and for their Complaint against
Yucaipa American Alliance Fund, I, LP and Yucaipa American Alliance (Parallel) Fund I, LP
(collectively Yucaipa or Yucaipa Defendants), hereby allege as follows:
NATURE OF COMPLAINT
1. This case arises out of the actions taken by the Yucaipa Defendants (a) to
injure or destroy the rights of Plaintiffs in their capacity as Lenders under that certain Amended
and Restated First Lien Secured Super-Priority Debtor in Possession and Exit Credit Agreement
and Guaranty Agreement, dated May 15, 2007, between Allied Systems Holdings Inc. and Allied
Systems Ltd. (L.P.), as Borrowers (collectively, Allied), the Lenders from time to time party
thereto (including Plaintiffs, Lenders), and The CIT Group Business Credit, Inc. (CIT), as
Administrative Agent and Collateral Agent (as amended, modified or supplemented from time to
time through and including that certain Amendment No. 3 to Credit Agreement and Consent,


DOC ID-17979399.1
2

dated as of April 17, 2008, the Credit Agreement)
1
and (b) in contravention of the provisions
of the aforesaid Credit Agreement.
2. In short, Yucaipa, which is the majority and controlling owner of Allied,
the Borrower under the Credit Agreement, has acquired debt obligations owing by Allied under
the Credit Agreement (the Obligations) in violation of the express provisions of the Credit
Agreement, in order (i) to undermine and frustrate the rights of the Lenders, including Plaintiffs,
vis--vis the Borrower, such as the Lenders right to receive interest and principal payments on
the Obligations from Allied or to foreclose on collateral pledged to secure the Obligations, and
(ii) to advance Yucaipas own financial interests as the controlling owner of Allied to the
detriment of the Lenders. As set forth below, Yucaipa caused Allied to default on numerous
provisions of the Credit Agreement and other agreements and then interfered with and frustrated
the Lenders ability to exercise their rights as provided in the Credit Agreement.
3. In August 2009, Yucaipa, which by then already controlled Allied through
(i) ownership of the majority of Allieds common and preferred equity, (ii) its appointment of a
majority of Allieds Board of Directors, including Derex Walker, its chairman, and other persons
affiliated with Yucaipa, and (iii) its control of Allieds management, asserted that it had amassed
a majority of the Obligations owing by Allied to the Lenders under the Credit Agreement,
despite clear and unequivocal provisions in the Credit Agreement prohibiting Yucaipa from
acquiring or owning Term Loan Exposure in excess of defined amounts (essentially the lesser of
$50 million in aggregate principal amount or 25% of the aggregate Term Loan Exposure held by
all Lenders). To the extent Yucaipa has in fact amassed Obligations of this magnitude, it has
done so in violation of the Credit Agreement and in contravention of the Lenders rights by

1
All capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Credit
Agreement, a true and correct copy of which is annexed hereto as Exhibit A.


DOC ID-17979399.1
3

causing Allied (its controlled affiliate) to enter into a purported Fourth Amendment to the Credit
Agreement without first obtaining the prior consents of the Lenders and CIT, as required under
the Credit Agreement.
4. As is typical of credit agreements of this type, the Credit Agreement, prior
to any amendments, contained an absolute prohibition on Yucaipa, as the majority and
controlling owner of Allied, from becoming a Lender to Allied. The purpose of this prohibition
was clear: to assure that, as the owner of the Borrower (Allied), Yucaipa could not interfere with
the rights of, and decisions being made by, Lenders vis--vis the Borrower in their capacity as
such, including (without limitation) declaring or waiving defaults, and deciding when (or if) to
exercise remedies. In effect, this prohibition is to prevent a controlling owner of a borrower,
such as Allied, from buying enough debt to be able to prevent the lenders from collecting on that
debt or otherwise exercising their rights vis--vis the borrower.
5. Pursuant to that certain Amendment No. 3 to Credit Agreement and
Consent, dated as of April 17, 2008 (the Third Amendment),
2
the Lenders agreed -- at the
request of Yucaipa and Allied -- to modify these express restrictions on a narrowly tailored and
limited basis. Under the Third Amendment, Lenders were permitted to sell, transfer or assign
Term Loan Exposure to Yucaipa so long as, after giving effect thereto, (a) Yucaipa would own
no more than 25% of the Term Loan Exposure of all Lenders, or (b) Yucaipa would acquire no
more than $50 million of Term Loan Exposure. The Third Amendment also expressly provided
that if Yucaipa were to acquire any Term Loan Exposure, it (a) would contribute 50% of the
Term Loans to Allied as capital (in effect cancelling such Term Loans ) and (b) would not be
entitled to vote (and the Obligations held by it would essentially be disregarded) in connection
with any matter required to be submitted to the Lenders for consent under the Credit Agreement.

2
A true and correct copy of the Third Amendment to the Credit Agreement is annexed hereto as Exhibit B.


DOC ID-17979399.1
4

Yucaipa, both in its capacity as Sponsor and through Allied, was integrally involved in the
negotiations that resulted in the Third Amendment and the restrictions on its ability to acquire
Term Loan Exposure imposed thereunder.
6. Yucaipa, however, intentionally violated these negotiated restrictions in
order to prevent the Lenders from collecting on the Obligations from the Borrower and
exercising their other rights against Borrower. That is, Yucaipa, working with then Lender
ComVest Investment Partners III (ComVest), caused Allied, its controlled affiliate, to enter
into that certain Amendment No. 4 to Credit Agreement, dated as of August 21, 2009 (the
Purported Fourth Amendment).
3
ComVest was the largest holder of debt which would enable
Yucaipa to own a controlling stake in Allied once Yucaipa purchased ComVests holdings. The
sole purpose of the Purported Fourth Amendment was to remove all of the restrictions imposed
on Yucaipas ownership of Obligations, as set forth in the initial Credit Agreement and the Third
Amendment, as well as all restrictions on voting those Obligations. After enactment of the
Purported Fourth Amendment, ComVest used this amendment to sell its entire stake to Yucaipa.
7. If effective, the Purported Fourth Amendment would amend the Credit
Agreement so that there would be no restrictions whatsoever on Yucaipa becoming a Lender and
controlling all decisions of the Lenders relative to the Obligations owed to them by Allied
(Yucaipas controlled affiliate), including undermining and frustrating the rights of the Lenders
to be paid on the Obligations in order to financially benefit Yucaipa as the controlling owner of
the Borrower, Allied. This is exactly the situation that the initial Credit Agreement and the Third
Amendment were designed to avoid.
8. By virtue of the Purported Fourth Amendment, Yucaipa not only claims to
have no restrictions on its ability to acquire Obligations under the Credit Agreement and vote

3
A true and correct copy of the Purported Fourth Amendment is annexed hereto as Exhibit C.


DOC ID-17979399.1
5

those claims, it also asserts that it constitutes Requisite Lenders under the Credit Agreement.
Under the Credit Agreement, Requisite Lenders have broad authority to make certain decisions
affecting the rights of all Lenders, including Plaintiffs. Those rights include the ability to direct
the Administrative Agent to act (or not act) upon the occurrence and during the continuance of
an Event of Default, to accelerate (or not accelerate) the Obligations when Allied fails to pay
interest or principal when due, and to exercise (or not exercise) remedies to obtain repayment of
the Obligations. Acting under its alleged status as Requisite Lenders, Yucaipa has prevented the
Administrative Agent from taking any actions on behalf of the Lenders to exercise remedies
against Allied despite the fact that Allied has admittedly been in Default for more than two years,
including not paying millions of dollars of interest on the Obligations during that time.
9. Yucaipas actions were undertaken solely to protect its equity investment
in Allied at the expense of Allieds Lenders and to injure or destroy the rights of Allieds
Lenders, including Plaintiffs.
10. At first, consistent with its obligations to the Lenders as Administrative
Agent, CIT refused to acknowledge the validity of the Purported Fourth Amendment or
Yucaipas status as alleged Requisite Lenders. Because of CITs refusal, on November 13, 2009,
Yucaipa and Allied (Yucaipas controlled affiliate) commenced an action against CIT in the
Superior Court of Fulton County, Georgia, for, inter alia, (a) alleged breach of the Credit
Agreement, (b) a declaration that the Purported Fourth Amendment was effective and binding on
the parties to the Credit Agreement, and (c) a declaration that Yucaipa was the Requisite Lender
under the Credit Agreement (the Georgia Action). On December 21, 2009, CIT filed a verified
answer and counterclaims against Yucaipa and Allied seeking a declaration that the Purported


DOC ID-17979399.1
6

Fourth Amendment was ineffective and not binding, that Yucaipa was not the Requisite Lender
and other relief (CIT Counterclaim).
4

11. Notwithstanding what CIT admitted in its Counterclaim was its
obligat[ion] to act for the benefit of all the Lenders(Ex. D, CIT Counterclaim at 34.),
including Plaintiffs, CIT has now acquiesced in Yucaipas flagrant breach of the Credit
Agreement. On December 5, 2011 the parties to the Georgia Action entered into a settlement
agreement (the Settlement Agreement)
5
whereby CIT agreed, in breach of its duties as
Administrative Agent to the Lenders, among other things, not to object to, challenge or contest,
either directly or indirectly, the validity of the Fourth Amendment, and acknowledged that
Yucaipa is the Requisite Lender for all purposes including the exercise of remedies. (Ex. E,
Settlement Agreement at 10.)
12. As consideration for CITs acquiescence in Yucaipas breaches and CITs
abdication of its duties to the Lenders, Yucaipa agreed to senior priority of repayment of certain
Obligations owed to CIT by Allied, provided CIT with an indemnity from claims brought against
CIT by third parties, such as the Lenders, arising from CITs breaches of duty in entering the
settlement agreement and subsequent actions therewith, dismissed the Georgia Action and
released CIT, as well as other consideration. (See id., at 12.).
13. As a result of the foregoing, Yucaipa not only has control over Allied (the
Borrower) through its majority ownership interest in Allied and control of the Board of
Directors, but it also purports to have control over decisions affecting all Lenders (as the
purported Requisite Lender), including the ability to prevent the Lenders from exercising their

4
A true and correct copy of the CIT Counterclaim is annexed hereto as Exhibit D.
5
A true and correct copy of the Settlement Agreement is annexed hereto as Exhibit E.


DOC ID-17979399.1
7

rights and remedies against Allied, because it has bought and paid for CITs acquiescence and
cooperation in the Settlement Agreement.
14. To protect their interests, Plaintiffs seek a declaration that the Purported
Fourth Amendment is invalid and that the Yucaipa Defendants are not the Requisite Lenders
under the Credit Agreement.
PARTIES
15. Plaintiff BDCM is a Delaware limited partnership, with its principal place
of business at One Sound Shore Drive, Suite 200, Greenwich, CT 06830.
16. Plaintiff Black Diamond CLO is a Cayman Islands limited liability
company, with its principal place of business at One Sound Shore Drive, Suite 200, Greenwich,
CT 06830.
17. Plaintiff Spectrum is a Delaware limited partnership, with its principal
place of business at 1250 Broadway, New York, NY 10001.
18. Upon information and belief, the Yucaipa Defendants are Delaware
limited partnerships, having a principal place of business at 9130 West Sunset Boulevard, Los
Angeles, California, 90069, and are managed by Yucaipa Alliance Management, LLC and/or
Yucaipa American Management, LLC, which are registered to do business in New York.
JURISDICTION AND VENUE
19. This Court has jurisdiction over the Yucaipa Defendants pursuant to
CPLR 302. In addition, upon information and belief, the Yucaipa Defendants transact business
in New York. Further, this Court has jurisdiction over the Yucaipa Defendants because, upon
information and belief, limited partners of Yucaipa include individuals and organizations
domiciled in New York.


DOC ID-17979399.1
8

20. Venue is proper pursuant to CPLR 503 because Spectrum has its
principal place of business in New York County.
FACTUAL ALLEGATIONS
21. Allied is a provider of distribution and transportation services to the
automotive industry, specializing in the delivery of new vehicles from auto manufacturing plants
to auto dealerships. Allied and several related entities filed for Chapter 11 bankruptcy protection
in July 2005.
Yucaipa Controls Allieds Business
22. In May 2007, Allied emerged from bankruptcy pursuant to a plan of
reorganization that resulted in Yucaipa becoming the majority and controlling shareholder of
Allied. Upon information and belief, Yucaipa owns more than 70% of the common equity of
Allied, and has used (and continues to use) this controlling interest to operate Allied for their
own benefit.
23. In addition to their majority ownership interest in Allied, Yucaipa controls
Allieds Board of Directors. Upon information and belief, pursuant to Allieds 2007 plan of
reorganization, Yucaipa appointed four out of the five members of Allieds Board, all of whom
were either employees or affiliates of Yucaipa. Yucaipas control over the Board has enabled it
to control Allied, including the right to appoint and direct the actions of senior management of
Allied. According to CIT, Yucaipa has continued to appoint senior management of Allied
Holdings such that the members of senior management are entirely beholden to Yucaipa. (Ex.
D, CIT Counterclaim at 9.)


DOC ID-17979399.1
9

The Credit Agreement
24. To finance its May 2007 emergence from bankruptcy, Allied obtained
financing through a $315 credit facility consisting of a $265 million senior secured first priority
credit facility (First Lien Loan), and a $50 million junior credit facility (the Second Lien
Loan). Plaintiffs are Lenders under both the First Lien Loan and the Second Lien Loan.
Yucaipa is a lender under the Second Lien Loan.
25. The First Lien Loan is governed by the Credit Agreement. The $265
million First Lien Loan has three components: (i) term loans in the aggregate principal amount
of $180 million (the Term Loans), of which Plaintiffs are Lenders; (ii) a $35 million revolving
credit facility from CIT (the Revolving Loan); and (iii) a $50 million synthetic letter of credit
facility (LC Facility), of which Plaintiffs are Lenders.
26. Plaintiffs are Lenders under the Credit Agreement who own or control,
with power to vote, between $40 million and $60 million of the Term Loan and L/C Facility
under the First Lien Loan.
27. The Yucaipa Defendants are defined in the Credit Agreement as the
Sponsor due to their sponsorship of Allieds 2007 plan of reorganization and subsequent
control of Allied after its emergence from Chapter 11.
Yucaipa Obtains the Right to Become a Lender under the Credit Agreement,
with Significant Restrictions on their Rights as Lender
28. In addition to its status as majority shareholder of Allied, and its control
over Allieds Board of Directors and day-to-day operations, Yucaipa sought to become a Lender
under the Credit Agreement. Section 10.6 of the Credit Agreement, prior to the Third
Amendment, permitted Lenders thereunder to sell, assign or transfer all or a portion of their
rights and obligations under the Credit Agreement, but only to a party that satisfied the definition


DOC ID-17979399.1
10

of Eligible Assignee. Under the Credit Agreement as originally drafted (and at all times prior
to the effective date of the Third Amendment), the definition of Eligible Assignee expressly
excluded the Sponsor and affiliates of Allied.
29. As majority shareholder, Yucaipa is an affiliate of Allied, and the Credit
Agreement expressly identifies Yucaipa as Sponsor. Thus, unless the parties to the Credit
Agreement amended the definition of Eligible Assignee, Lenders could not sell, assign or
transfer any of their rights or obligations under the Credit Agreement to Yucaipa and,
consequently, Yucaipa could not become a Lender under the Credit Agreement.
30. Yucaipa and Allied (its controlled affiliate) requested and obtained Lender
consent to the Third Amendment, which amended the Credit Agreement to allow Yucaipa to
become a Lender, but only under strictly limited circumstances and conditions.
31. That is, in the Third Amendment, to prevent Yucaipa, as the majority and
controlling owner of Allied, from harming the interests of the Lenders and undermining and
interfering with their rights and remedies against Allied, the parties to the Credit Agreement
placed significant restrictions and conditions on any sale or assignment of Term Loans to
Yucaipa (sales or assignments of the L/C facility and Revolver were not permitted at all).
Specifically, Yucaipas potential status as a Lender was subject to the following restrictions and
conditions, among others, (i) after giving effect to any such sale or assignment, Yucaipa could
not hold or beneficially own more than 25% of the aggregate outstanding principal amount of the
Term Loans, or acquire more than $50 million of the principal amount of the Term Loans; (ii)
Yucaipa had to make capital contributions to Allied of at least 50% of the aggregate principal
amount of Term Loans it acquired; and (iii) Yucaipa would not have any voting rights with
respect to any Term Loans it might acquire (which other Lenders holding Term Loan would


DOC ID-17979399.1
11

have), including rights to consent to any amendment, modification, termination or waiver of any
provision of the Credit Agreement.
32. As CIT pled in its Counterclaim in the Georgia Action: The restrictions
and conditions placed on Yucaipa by Amendment No. 3 [the Third Amendment] were intended
to ensure that Yucaipa, by virtue of its control of Allied Holdings, could not act in any way, or
cause Allied Holdings to act in any way, that would (i) elevate Yucaipas interests above the
interests of other Lenders or (ii) harm the interests of any other Lender for the benefit of Allied
Holdings and/or Yucaipa. (Ex. D, CIT Counterclaim at 16.)
33. The restrictions and conditions were necessary to ensure that Yucaipa,
already a majority and controlling shareholder of Allied and a Lender under the Second Lien
Loan, did not obtain unfettered control over Allied and injure or destroy the Lenders rights and
interests by, among other things, becoming Requisite Lenders. Under the Credit Agreement,
Requisite Lender means one or more Lenders that have or hold more than 50% of the sum of the
aggregate Term Loans, Revolving Loans and LC Facility. A Requisite Lender has the authority
to make certain key decisions affecting the rights of all Lenders under the Credit Agreement,
including Plaintiffs, which includes the right to direct the exercise of remedies such as
demanding payment by Allied of any and all amounts due, or commencing foreclosure on the
collateral pledged to secure the Obligations.
34. Pursuant to the Third Amendment, the prohibitions imposed on Yucaipas
ability to acquire and vote Term Loans and other Obligations effectively precluded Yucaipa from
ever becoming Requisite Lenders. Consequently, because Yucaipa had no ability to become the
Requisite Lender under the Credit Agreement, they could not as majority and controlling owner
of the Borrower, Allied, harm the interests of Plaintiffs and other Lenders, or otherwise interfere


DOC ID-17979399.1
12

with the Lenders rights.
Yucaipa Causes Allied to Default Continuously
35. To ensure that Yucaipa was not violating the terms of the Third
Amendment, Allied was required to deliver to CIT a monthly report of the amount of Term
Loans and Second Lien Term Loans acquired and held by Yucaipa in any particular month, and
the price Yucaipa paid for such loans. However, to conceal its circumventing the restrictions in
the Third Amendment, upon information and belief, Yucaipa used its control over Allied to
cause Allied to fail to deliver these monthly reports of Yucaipas holdings, which constituted an
Event of Default under the Credit Agreement.
36. Yucaipa caused Allied to engage in conduct resulting in additional
Defaults and Events of Default under the Credit Agreement, including (without limitation) the
failure to pay Lenders principal and interest on the Obligations owing under the Credit
Agreement and the failure to pay Lenders other Scheduled Payments owing under the Credit
Agreement. Yucaipa caused Allied to fail to make those payments although, at the time these
amounts were due, Allied had sufficient cash to comply with its payment obligations under the
Credit Agreement.
37. In fact, since August 2008, Allied, at Yucaipas direction and control, has
been in continuous default under the Credit Agreement. Specifically, in August 2008, Allied
notified the Lenders and CIT that it had failed to comply with the financial covenants set forth in
Sections 6.7(a) and 6.7(b) of the Credit Agreement, resulting in Events of Default under section
8.1 of the Credit Agreement as of the fiscal quarter ended June 30, 2008. Later, Allied admitted
that, as of August 30, 2008, it also had failed to disclose, as required, Yucaipa's acquisitions of
debt for the months of June and July 2008, which also constituted an Event of Default.


DOC ID-17979399.1
13

38. Since Allieds first default in August 2008, Allied has, all at
Yucaipas direction and control, continued, on a regular basis, to default on its obligations
under the Credit Agreement, resulting in a multitude of Events of Default under, and material
breaches of, the Credit Agreement, including and without being exhaustive: (i) failure to
comply with the financial covenants in the Credit Agreement for the past several years; (ii)
failure to comply with its letter of credit obligations, by not reimbursing a collateral account
when beneficiaries have drawn on those letters of credit and thereby squandering security of
Lenders; (iii) since December 2008, maintaining excess cash balances in accounts outside of
control agreements, thereby securing for itself, without authorization or consent, access to cash
that is supposed to be security for the Lenders; (iv) failure to deliver requisite financial
statements and other information on a timely basis; and (v) refusal to inform the Lenders of the
amount of Term Loans held by Yucaipa.
39. Allied, at Yucaipa's direction and control, also ceased payment of required
principal and interest payments under the Credit Agreement, even though Allied had the
requisite cash to make the payments. By not making principal and interest payments in
combination with the self-help in which Allied has engaged by not reimbursing the collateral
account that secures the L/C Facility, attempting to terminate control agreements without
providing specified terms for new agreements and by retaining excess cash outside of controlled
accounts pledged to the Lenders in contravention of the Credit Documents Yucaipa
effectively usurped the Lenders' rights.
40. In addition, Yucaipa's efforts to force, through an invalid amendment,
extensions of letters of credit that, based on recent practice, would be reimbursed from the


DOC ID-17979399.1
14

collateral account and termination of control agreements without specified terms for any new
control agreements, constitute violations of the Credit Documents.
41. Allied and Yucaipa acknowledged the aforesaid defaults and recognized
that the defaults entitled the Lenders to accelerate the debt. Accordingly, to forestall such action,
Allied and certain of its affiliates entered into a forbearance agreement with CIT and the Lenders
on or about September 24, 2008, which was amended on October 23, 2008 (the Forbearance
Agreement). Pursuant to the Forbearance Agreement, the Lenders agreed to refrain from taking
action to enforce their rights under the Credit Agreement until mid-November 2008, so that the
parties could engage in discussions about restructuring Allieds debt.
42. With the lapse of the forbearance period, the continuing Defaults and
Events of Default by Allied (including, but not limited to, the failure to pay interest and
principal), and the continued deterioration in Allieds business, Yucaipa pursued any means to
evade the restrictions on its acquisition of Allieds debt, which were contained in the Third
Amendment. According to the CIT Counterclaim, Yucaipa wanted to do this to have unfettered
control over Allied Holdings and to protect its equity investment which was deeply underwater.
(Ex. D, CIT Counterclaim at 20.)
43. Since March 2011, Yucaipa has caused Allied not to provide any financial
reports, including 2010 audited financials and fleet reports, to the Lenders as required by the
Credit Agreement. Yucaipa intentionally kept the Lenders in the dark about the deterioration in
Allieds business as a result of an aggressive business strategy pursued by Allied to force their
customers into new contracts. This strategy backfired and caused the loss of several major
customers.



DOC ID-17979399.1
15

Yucaipas Wrongful Attempt to Eliminate Restrictions on their Becoming Lender
under the Credit Agreement

44. In February 2009, Yucaipa launched a tender offer to purchase from the
Lenders, at substantial discounts to par, Allieds Obligations under the Credit Agreement. The
tender offer was conditioned upon acceptance and consent by Lenders constituting Requisite
Lenders to a form of the Purported Fourth Amendment that would have eliminated all of the
restrictions and conditions imposed upon Yucaipa pursuant to the Third Amendment. Yucaipa
did not receive a sufficient number of acceptances of its offer from the Lenders. The Yucaipa
Defendants attempt to tie the tender offer to consent from the Lenders to a further amendment of
the Credit Agreement clearly demonstrates that Yucaipa understood that Lenders consent was
required to eliminate the existing restrictions.
45. After the Lenders refused to accept Yucaipas tender offer, Yucaipa entered
into direct discussions with ComVest to purchase the Term Loan and LC Facility Obligations then
held by ComVest. In order to achieve its ends, Yucaipa offered ComVest more consideration than
was otherwise necessary to purchase the Allied Obligations owned by ComVest. In connection
therewith, Yucaipa caused Allied to enter into the Purported Fourth Amendment with ComVest
(which at the time constituted Requisite Lenders). The Purported Fourth Amendment
committed Allied to various unfair, wasteful provisions, notwithstanding that, at the time of the
documentation of the above-described arrangements, Allied was unable to attest either to its
solvency or to the absence of any material adverse change in its business and Allied received no
valid consideration for its agreement to the Purported Fourth Amendment.
46. More importantly, the Purported Fourth Amendment, which was executed
without the consent of the Lenders or CIT, as the Administrative Agent and a Lender, deletes


DOC ID-17979399.1
16

every single restriction and condition in the Third Amendment relating to Yucaipa acquiring and
voting Allied Obligations and preventing it from interfering with Lenders rights.
47. The Purported Fourth Amendment further allows Yucaipa to enter into an
Assignment and Assumption Agreement with ComVest, dated August 21, 2009 (the
Assignment), pursuant to which ComVest assigned its interest in $114.7 million of Term
Loans (constituting more than 54% of the aggregate Term Loan Exposure), and $30.4 million of
the L/C Facility (constituting more than 60% of the aggregate L/C Exposure), to Yucaipa, well in
excess of the express limitations imposed by the Third Amendment.
48. The Purported Fourth Amendment, together with Yucaipas control over
Allieds business and CITs acquiescence under the Settlement Agreement, effectively make
Yucaipa both Borrower and Lender under the Credit Agreement, undermining and frustrating the
rights of all other Lenders under the Credit Agreement. Accordingly, Lenders have been
stripped of all of their rights and ability to take action against Allied in connection with its
numerous Defaults and Events of Default under the Credit Agreement.
49. The Purported Fourth Amendment is not valid because neither requisite
consent of all the Lenders nor the consent of the Administrative Agent was obtained, as required
under the Credit Agreement (including the Third Amendment).
50. The Purported Fourth Amendment required the consent of all of the
Lenders (not just Requisite Lenders) and CIT, as Administrative Agent. As CIT alleged in its
Counterclaim: On February 12, 2009, CIT advised Allied Holdings that the proposed [Fourth]
[A]mendment[ ] required the consent of the Administrative Agent and the Collateral Agent, or
both . . . CIT withheld its consent as Agent and as Lender. Neither Yucaipa nor Allied ever


DOC ID-17979399.1
17

disputed that CIT acted well within its rights in refusing to provide its consent. (Ex. D, CIT
Counterclaim at 22.)
51. As CIT alleged in its Counterclaim: Such consent, however, was
necessary. (Id. at 29.)
52. In addition, as CIT pled in its Counterclaim: Allieds interest payment
default on August 1, 2009, and its other prior uncured defaults, made any amendments to the
Credit Agreement without consent of all the Lenders and CIT, as Administrative Agent,
impossible. (Id.)
53. Yucaipa unlawfully caused Allied and ComVest to enter into the
Purported Fourth Amendment in violation of the Credit Agreement (including the Third
Amendment) to injure or destroy the Lenders rights and to protect and advance Yucaipas equity
interest in Allied.
54. As alleged in the CIT Counterclaim, Yucaipa is engaged in a scheme, in
which Allieds board and management are complicit, to take action to protect its own equity
investment in Allied Holdings, even at the expense of the other Lenders . . . If deemed effective,
among other things, the Purported Fourth Amendment would eliminate the restrictions that had
been bargained for in Amendment No. 3 [the Third Amendment] that limited Yucaipas
ownership position and that precluded Yucaipa from interfering with the Lenders rights, and
would eviscerate the amendment provisions in the Credit Documents in contravention of the
clearly expressed intent of the parties. (Id. at 25-27.)
55. Yucaipas motives are clear and were detailed in CITs Counterclaim:
Yucaipa determined that, if it could acquire most of the outstanding Debt, it could prevent the
Lenders from exercising their rights under the Credit Documents, control any restructuring


DOC ID-17979399.1
18

process and thereby protect its equity position at the Lenders expense. (Id. at 25.) This is
exactly what has happened, as Yucaipa has, by virtue of its claim to constitute Requisite Lenders,
prevented the Administrative Agent from acting pursuant to its duties, prevented the Lenders
from exercising their rights and remedies and allowed Allied to operate without consequence
despite admittedly being in Default under the Credit Agreement for more than two years
(including, without limitation, failing to make interest payments over the past two years).
56. The purported Assignment of Obligations from ComVest to Yucaipa is
ineffective because it was not procured with the necessary consents, and it exceeds the
restrictions set forth in the Third Amendment.
57. Notwithstanding the restrictions placed on Yucaipa obtaining ownership
of Allieds Obligations, Yucaipa now purports to be the largest Lender to Allied and has declared
itself the Requisite Lender under the Credit Agreement.
58. Yucaipa has caused Allied to be in breach of its obligations under the
Credit Agreement and has prevented the Lenders, including Plaintiffs, from exercising their
rights and remedies against Allied.
AS AND FOR A FIRST CAUSE OF ACTION
59. A genuine justiciable dispute exists between Plaintiffs and Defendants
with respect to the parties rights and obligations including those set forth in the Credit
Agreement and the amendments thereto.
60. Accordingly, Plaintiffs request a declaration, pursuant to CPLR 3001,
that (i) the Purported Fourth Amendment is null and void, ineffective, and not binding because,
inter alia, the required consents of the Lenders and the Administrative Agent were not obtained;
and (ii) Yucaipa is not Requisite Lenders under the Credit Agreement.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs demand judgment:
(a) declaring the Purported Fourth Amendment null and void, ineffective, and
not binding;
(b) declaring that Yucaipa is not Requisite Lenders under the Credit
Agreement; and
(c) granting Plaintiffs such further relief as the court deems proper, together
with the costs and disbursements of this action.
Dated: New York, New York
January 17, 2012
DOC ID-17979399.1
SCHULTE ROTH & ZABEL LLP
919 Third Avenue
New York, New York 10022
(212) 756-2000
Attorneys for Plaintiffs BDCM Opportunity Fund
II, LP, Black Diamond CLO 2005-1 Ltd., and
Spectrum Investment Partners, L.P.
19
EXHIBIT J
FILED: NEW YORK COUNTY CLERK 06/07/2012
INDEX NO. 650150/2012
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 06/07/2012
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SUPREME COURT OF THE STATE OF NEWYORK
NEW YORK COUNTY
PRESENT:
Charles Edward Ramos
Index Number: 650150/2012
BDCM OPPORTUNITY FUND II, LP
vs.
YUCAIPA AMERICAN ALLIANCE
SEQUENCE NUMBER : 002
DISMISS ACTION
Justice
PART __ S_
3
_
INDEX NO.-----
MOTION DATE _____ _
MOTION SEQ. NO.-----'-
The following papers, numbered 1 to __ , were read on this motion to/for--------------------
Notice of Motion/Order to Show Cause- Affidavits- Exhibits
Answering Affidavits- Exhibits---------------------------
Replying Affidavits-----------------------------
Upon the foregoing papers, It is ordered that this motion is
I No(s) .. _____ _
I No(s). _....;._ ___ _
I No(s). ------
Motion denied as reflected in
the Court's transcript. A party to this matter may request
that this Court "So Order" the transcript by submitting a copy
of the Court Stenographer's record, together with an errata
sheet correcting all errors in the record (counsel's as well
as the Court's), to the Clerk of Part 53. If all parties
consent to the proposed corrections or agree that no
corrections are required, a stipulation to that effect shall
accompany said errata sheet or transcript. In the absence of
consent, the requesting party shall notice the record for
settlement pursuant to CPLR Rule 5525(c) .
No proposed order will be accepted unless specifically
authorized at the oral argument. In the event the ruling
authorizes the entry of a judgment or other action by the
clerks, the submission of a proposed order or judgment shall
be made to the Judgment Clerk or other appropriate clerk.
Dated: __
0
---------------'' J.S.C.
CHARLES E . .RAMOS
CHECK ONE: ........................................................ ,., .. ,., .......... ,., ...
0 CASE DISPOSED DISPOSITION
2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0 GRANTED
0DENIED
3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER
0 GRANTED IN PART 0 OTHER
0 SUBMIT ORDER
0 DO NOT POST . 0 FIDl:ICIARY APPOINTMENT
0REFERENCE
EXHIBITK
FILED: NEW YORK COUNTY CLERK 09/06/2012
INDEX NO. 650150/2012
NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 09/06/2012
''
EXHIBIT A
Index No.: 650150/12 (Ramos, J.)
Errata Sheet to the May 30, 2012 Hearing Transcript
,-----..
.....Li;e(s) I Change
Page
2 10 "me" should be "you"
-
....
2 13 "is" should be "are"
..
3 4 "who" should appear before "handled"
-
3 4 "get" should be "set"
........ ...
3 22 "defense said is" should be "defensive in"

4 6 "certainly" should be "certain"
..
4 7 Delete "they" after "which"
--
4 13 Insert a comma after "debt"
4 20 "low" should be spelled "lo"
. ..-
5 4 Insert a comma after "restrictions"
..
5 8 Insert a comma after "then" before "directing"
y ...
..---
5 15 "file" should be "re"
5 15 Inse1t a comma after "amendment"
---
.v..
--
5 15 Replace "Can't" with "it can't"
- ----
5 25 Insert "to" after ''CIT"
5 26 Insert "concede the" before "requisite"

5 26 Replace "lender." with "lender issue."
-
6 5 Delete "in" after "saying"

6 5 Insert "says" before "you"
6 11 Delete "the" after "of'
- -
6 17 Insert " ... " after "sued"
11 16 Delete "a" between "to" and "rely"
..

!
12 4 Replace "an" with "the"

--
13 2 Replace "brief' with "find"

17 11 Delete "(phonetic)"
I
-- ----
17 20 Replace "Florida" with "Georgia"
18 6 Replace "a halfway" with "as carefully"
''
_ ......-
Page Line(s) Change
-
18 6 Insert "an" between "drafted" and "attorney's"
..... ~ ~ - - - - - ~ -
18 7 "letter I ever seen.'' should be "letter as I have ever seen."
--
..__ ... ,_,
~ .......~ .
22 11 Replace "stay.'' with "stead.''
w - ~ A
22 17 Replace "stay.'' with "stead."
'--"'
22 26 Replace "stay.'' with "stead."
23 2 Replace "stay.'' with "stead.''
24 5 Replace the "are" with "is"
-
----..~ ~ - ~ - -
25 22 Insert "not" between ''is" and "dismissing"
- -
26 22 Replace "agreement," with "exhibit,"
- u u ~ - - -
-
26 25 Replace ''agreement" with "exhibit"
1
2 c:C)lJI<rr ()F STATE OF NEW Y()R.K
1 COUNTY OF NEW YORK: TRIAL TERM PART 53
3 I - - - - - - - - - - - - - - - - - X
4 BDCM OPPORTUNITY PlJND I I, LP, BLACK DIAMOND
CLO 2005-1 LTD., and SPECTRUM INVESTMENT
5 PARTNERS, L. P.,
6 Plaintiffs,
'7 - against -
INDEX NUMBER:
650150/12
8 YUCAIPA AMERICAN ALLIANCE FUND I, LP, and
YUCAIPA AMERICAN ALLIANCE (PARALLEL)
9 f:..,UND I, LP,
10 Defendants.
11
12
13
14
15
- - - - - - - - - - - - - - - - - - --
BEFORE:
60 Centre Street
New York, New York
May 30, 2012
PROCEEDINGS
- - X
HONORABLE CHARLES E. RAMOS, Justice
16
17 APPEARk'\JCES:
18 SCHULTE ROTH & ZABEL LLP
Attorneys for the Plaintiffs
1.9 Third Avenue
New York, New York 10022
20 BY: ROBERT J. WARD, ESQ.
ADP..M HARRIS I ESQ'
21
KASOWITZ, BENSON, TORRES & FRIEDMAN, I.LP
22 Attorneys for the Defendants
1633 Broadway
23 New York, NY 10019
BY: DAVID E. SPALTEN, ESQ.
24 DAVID E. ROSS, ESQ.
25
26
ZillAM K' GRA:NT I ESQ.
Toni l\.nn Figueroa, CRR, CSR
Official Court Reporter
1
1
Proceedings
'I' HE COURT:
Good morning.
3
MR. WARD:
Good morning,
your Honor.
4
MR. HARRIS:
Good morning.
5
MR. ROSS: Good morning.
MR. SPALTEN: Good morning.
7
MR. GRANT: Good morning.
8
THE COURT: Piaintiff, tell me why you didn't find
9 an opportunity with this investment. What was it about?
10
MR.. WARD: Tell me why we did, your Honor?
11 I
THE COURT: BDCM Opportunity Fund.
12
MR. WARD: Well, it's an opportunity fund. There
13 is some good opportun.ities, your Honor, and some bad
14
1
opportunities.
I
15
THE COURT: Tell me what happened here.
16
MR. WARD: What happened in this case or what this
17 motion is about, your Honor?
18
THE COURT: Case.
19
MR. WARD: What happened in this case, your Honor,
:.Ls
and we appeared before your Honor in January or
21 1 February in connection with seeking to obtain some financial
22 documents.
23
24
I
25 i
My clients were investors. That is, they purchased
debt of this company called Allied, which is an automotive
transport company. They're the companies, your Honor, we
26 see every day driving on 95 or whatever. They carry the
font: AYUtl. RMR, CRR, CSR
2
............... ________________________ __
1 Proceedings
2 cars from the automotive manufacturers to the ers. And
3 r think my partner Adam Harris, handling the bankruptcy or
4 handled the bankruptcy, can get me :right on the dates if I
1
m
5 w:rong. But Allied w.3.s in bankruptcy and it came out, I
6! believe, in 2007. Now, Yucaipa, which is the two Yucaipa
7 entities, the defendants in this case, they were the
8 sponsors and they became the owner of 70 percent of the
equity of AlLied. And on the basis owning 70 percent of
10 equity of Allied, whj.ch was the debtor that came out in
11 2007 regarding the transport company, they control it and
12 they're the majority sha:reholder-. They can appoint four out
13 of the five directors, also appointed the CEO. Control all
14 the major management decisions.
15 Now, the credit agreement pursuant to which my
16 clients bought a substantial amount of the first lien debt
17 and the second lien debt, there was a total of about
18 $315,000,000 of debt, specifically provides that only
19 I certain entities can purchase that debt. Because in
I
20 addition to my clients, what the credit agceement pursuant
21 to which my clients bought this debt provides - and you'll
22 understand why, your Honor - is defense said is that certain
23 (:ntities couldn't buy the debt because if Yucaipa, which
owns 70 percent of the equity, can buy the majority of the
25 debt, basically t.hey can direct the company not to pay.
Now, there's another wrinkle in ::hat, your Honor,
4
1 Proceedings
2 and that the credit agreement provides that the majority of
3 Lhe debt holders are called the requisite lenders. And they
4 can direct what the debto:rs -- what the creditors do with
5 the debt. So there's a provision in the first credit
6 agreement that says certainly entities and people can't buy
7 the debt, including Yucaipa, which they had 70 percent of
B :he equity.
9
1
Now, Yucaipa was a little frustrated with that.
10 'I' hey wanted to buy some debt. So they got the parties to
11 enter into a third amendment to the credit agreement that
12 lowed them to buy debt, but only under certain conditions,
13 including small amounts of debt less than 50 percent, less
14 than 25 million, and, also, they couldn
1
t vote that debt
15 because, of course, you don't want to be in a position where
16 Yucaipa can now control the debt and it's protecting itself
17 on the equity side of value and it's basically frustrating
18 t ability of t.he creditors, like my clients, to collect on
19 the debt.
20 Well, low and behold, when Yucaipa gets that third
21 amendment, they purchase a majority of the debt from one of
22 the other creditors, one of the other lenders, called
23 Comvest. And they get Comvest and Allied - Yucaipa
24 controls Allied through four of the five directors and they
25 have 70 percent of the equity. Basically, they get Allied
26 and Comvest, which is the requisite lender of all the
1 Proceedings
2 lenders, which includes my clients, to agree to wh;s.t 's
3 I called the fourth amendment. We call it the purported
4 fourth amendment, which wipes out all the restrictions which
5 says the sponsor, which is Yucaipa, can buy a-ll the debt it
6 wants
1
vote all the debt it wants. What happens is Yucai.pa
7 buys Comveet's position, becomes the majority debt holder,
;
j
8j
then becomes the requisite 1enders, and t.hen directing
I
I
Allied, because they own 70 percent of the equity, controls
10
I
four c:f the five board members, says to Allied, don't pay
11 any of the debt. So they owed tens of millions of dollars
12 of principal and interest to my clients as well as other
13 lenders.
14 Now, CIT was acting as the administrative agent.
15 C : ~ I T said file the fourth amendment. Can't go through
16 because .it violates all the -- the other credit agreements
17 \vhich limit Yucaipa, what Yucaipa could do, okay? And it
18 also violateB the provisions of the third amendment which
9 says you can buy little bits of debt, but you can
1
t vote it.
20 I
Basically, you've blown through, says CIT, the third
21 amendment and the credit agreement itself.
So what happens is Yuca.ipa and Allied, which it
23 controls, sues CIT to force them to concede that the fourth
24 amendment .is not only a purported fourth amendment, but a
25 Teal fourth amendment, it's valid. And also force CIT,
26 requi.sJ..te lender. And, again, the requisite lender has the
To-ni Ann F ~ , 'Rl-11?., CR'R, CSR
6
l Proceedings
2 right to direct all the group of lenders as to what happens.
3 So CIT files a counterclaim and says, no, the
4 purported fourth amendment is invalid and, no/ you're not
5 the site lender, saying in the prior agreement you
5 can't be. It was in some hard fought litigation we weren
1
t
7 a party to it.
THE COURT: I understand.
9 MR. WARD: I know the defendants, in their papers,
10 say we were fully and fairly litigating it. The most that
happened is my ients received two notices of the
deposition. Only one of them was deposed. I know I was
13 there for the deposition. That's all I did.
14 'I'HE COURT: Were you named in the -- litigation?
15 MR. WARD: Absolutely not. In fact, your Honor,
16 I there may be some argument here from the defendants about
171 it, but err was not sued.
18 THE COURT: Now we're bleeding over into the
19 mot :Lon. Let's let the defendant make thei .. r. mot ion and you
20 come back.
21 MR. WARD: Right.
22 Thank you, your Honor.
23 '
THE COURT: Okay.
24 MR. SPAL'I'EN: Good morning, your Honor. David
25 :Spalten with Kasowitz, Benson, Torres & Friedman with David
26 Ross and Adam Grant here on behalf of the two Yucaipa
'
7
Proceedings
2 entities or defcmdants, Yucaipa American A.lliance Fund I, r.P
3 and Yucaipa American Alliance (Parallel) Fund I, LP.
4 Judge, first, we stand on all of the allegations
~ ; a.nd arguments, citations to the law contained in our briefs
6 OJ.nd reincorporated them herein this reference. It is
7 11.nd.tsputed that tf1e plaintiff us agent was engaged to
8 cepresent them
the Georgia litigation. They made this
9 admission. Their same counsel will stand here today to
10 argue that to you when they sought relief from you to
11 deprive us of a standard extension of our time which to
12 answer. It's in their papers. They admit that all of the
13 same issues were litigated in the Georgia case that are an
14
issue in this case. So there are
THE COURT: If they're not parties, forget the fact
16 they retain counsel. Did they appear? Did they have -- did
17 they litigate this issue? It's one thing to say that they
18 ;ould have or maybe they even -- no, you can't. say they
19 should. They had no obligation to join that litigation.
20 They were not named in the litigation. So I don't see
21 how "'. where you sJet to either collateral estoppel or res
22 judicata. They're entitled to, unfortunately, litigate this
23 i.ssue all over again or, I rm sorry/ they're entitled to
24 require you to litigate this issue all over again. They say
25 t h ( ~ y ' re the real parties of interest and they weren't made
26 defendants in that lawsuit.
I
8
I
ll Proceedings
MR. SPALTEN: Your Honor, with respect, we disagree
w:L t.h that. The burden under New York law is on the
5 that they did not have a full and fair opportunity to
6 I litigate. They have pled in their complaint that.
7 THE COURT: What was their full and fair
8 opportunity to litigate that they could have voluntarily
oined the Georgia 1 igation?
10 MR. SPALTEN: First of all, they stated --
11 THE COURT: Answer my question.
12 Are you saying that they should have voluntarily,
13 tously joined the Georgia litigation?
MR. SPAI,TEN: Yes. The restatement says that is
15 one o.f the things they should do before they can complain
16 of -- about it -- this.
17 THE COURT: How about the law of New York?
13 MR. SPALTEN: Well, the law of New York. applies
ia law to the substantive rules governing res judicata
under the full faith and credit clause under New York Rules
21 of Conflict.
22 THE COURT: Hold the phone.
23 'I'he plaintiffs never appeared in Georgia. How can
24 I apply Georgia law in enforcing Georgia's judgment decis.ion
25 here if they, the plaintiff, was never in Georgia? Aren't
26 entitled to rely on New York law; shouldn't they use
l Proceedings
2 New York rules; and is there a difference between Georgia
1 New York law?
4
MR. SPALTEN: New York law does adopt, at least in
5 many statements, the restatement of judgements which Georgia
G lenw also adopts,
THE COURT: Is there a difference?
8
MR. SPALTEN: I believe.
9
THE COURT: I'm total
out of sea when it comes to
10 Georgia law. So you tell me.
11
MR. SPALTEN: Well, I
1
m sure there are some
differences, but they are not material to this case.
13
THE COURT: Okay. Show me a case, New York
14 preferably, that says the plaintiffs here were obligated to
15 either itigate that case in Georgia or are now estopped
16 from disputing.
17
MR. SPALTEN: It's really the latter. It's not a
1.8 m;s.tter of them being obLigated to litigate. It:
1
s si.mply
.l. 9 t.bat they have a burden of showing they did not have a full
20 and fair opportunity to litigate.
21
THE COURT: I'm going more than that. This is not
22 the first time something like this has occurred. I want you
23 to show me Court of .1\ppeals or Appellate Division decision
24 that says they're estopped. What have you got?
25
MR. SPALTEN: It
1
s the Restatement (Second) , ,Judge.
26'
THE COURT: You don't have a case, do you'?
'
10
l Proceedings
2 MR. SPALTEN: Yes, we do. We have a Georgia case
3 that says that -- that parties are bound by the actions of
4 their privies, especially an agent 1 igating on their
behalf.
THE COURT: Okay.
7 MR. SPALTEN: And in this case that agent did that
8 in Georgia.
9 TriE COURT: CIT.
10 MR. SPALTEN: Yes.
11 THE COURT: All right. What establishes the
12 I agency?
13 MR. SPALTEN: The credit documents themselves as
14 well as the plain admissions. This is not in dispute that
15 CIT was engaged as plaintiff's agents when it litigated the
16 Qase in Georgia. This is tl:lis was a statement that was
17: made in open court. It's in their pleadings. It's in their
18 a1nt.
19 1RE COURT: Correct.
20 1
Plaintiff, do you agree?
MR. WARD: Your Honor ---
22 MR. HARRIS: Your Honor --
MR. WARD: -- what happened is, your Honor, CIT was
21 an agent and they began the litigation. They weren
1
t sued
2 5 as agent and they didn
1
t counterclaim as agent. However,
26 they settled this litigation out from under us and the
11
1 Proceedings
2 Restatement (Second) , wh:tch Mr. Spal ten :is quoting, says --
THE COURT: What authority did CIT have to act on
4 your client's behalf in Georgia? In that litigation?
MR. WARD: None. None, your Honor. There is
G general language in the underlying credit agreement that
7 they are administrative agents, but there :Ls nothing - -
8 ':'HE COURT: Administrative?
9 MR. WARD: That they are the administrative agents.
10 -- but there is nothing specific in the credit
11 agreement that gives them the right to do this and we don
1
t
12 believe, in fact, your Honor, they did
13 MR. SPALTEN: Your Honor, the complaint
jA THE COURT: The law in New York, a principal and
15 agent, is that the principal authorizes the agent. I need
16 something to a rely on that says this agent, CIT, was
17 authorized to compromise that case in Georgia. You say it
1
S
18 the loan documents.
I
19 MR. SPALTEN: Absolutely, Judge.
2 0 THE COURT: What prov1,sion of thE':! loan documents
21 are you relying on?
22 MR. SPALTEN: Your Honor, if I may have a second,
23 we'll pull it.
24 THE COURT: Sure.
25 MR. l"iP..RD: Your Honor, while I;e's doing that, may I
:::;6 amend what I said? Not to change it, but to add.
12
1
Proceedings
2
Remember I was talking to you about requisite
3 lenders and requisite lenders are the majority owner'? The
4 requisite lenders would have to direct CIT to act as an
.:ldmini st:r.ati ve agent
a particular regard. They ~ e v e r did
that. And CIT was sued in its individual capacity
the
i
7 I aintiffs and in counterclaims.
8 Now, your Honor, with respect to whether or not
9 I they were acting as the administrative agent, we have been
I
10 focusing on the settlement agreement. We think the
11 settlement .:tgreement is clear CIT only settled its own
12 individual claims. The language of the settlement
l3
THE COURT: I'll get there in a second. There are
14 a number of issues here. I think this is an interesting
issue.
16
Go ahead.
17
For example, they could have been authorized and
lB
still not have settled on your behalf.
19
MR. WARD: In fact, your Honor, they didn
1
t settle
20 (;m our behalf.
21
THE COURT: Okay.
22 1
MR. SPAL,TEN: Your Honor, the credit as_::rreement ......
23 tn1s George litigation was instituted --
24
THE COURT: I thought you were going to show me
25 something in the contract documents, loan documents.
26
MR. SPALTEN: I'm trying to buy a littlr= time while
1 Proceed.inga
2 I brief it.
4
5
6
7
8
91
I
THE COURT: I can't walk and chew gum at the same
time. I'm a r:eal simple guy. I
1
ve
the documents here,
they are voluminous.
MR. SPALTEN: I understand, ,Judge,
If you will indulge me one more moment.
(Pause in the proceedings.)
MR. WARD: Your Honor, there's a provtsion in
10 Section 9.2 of the credit agreement.
ll
THE COURT: Hang on. What page is that?
12
MR. WARD: It's page 151, your Honor.
13
THE COURT: Give me a second.
14 (Pause in the proceedings.)
15
I
THE COURT: 9.1. Powers and Duties.
161 MR. WARD: 151.
I
17 But, your Honor, as I said to you before, tt's very
18 generic.
19
THE COURT: I know. Hang on.
20 MR. WARD: Okay.
21
(Pause in the proceedings.)
22
THE COURT: All right. It's got to be specifically
23 delegated.
24
MR. WARD: Right. And, your Honor, it. wasn't. And
I suppose a.s requisi t:e lender --
THE COURT: Let me ask the movant.. Give him a
14
1 Proceedings
2 chance.
3 MR. WARD: Sure.
4 MR. SPALTEN: .:: think I 'm there.
Okay. There are a series of agency delegations.
CIT was not merely the administrative , they were also
7 the collateral agent for purposes of protecting the :interest
of all of the first 1 lender's interest in the various
pieces of collateral.
10' Under Section 9.l(a), Section 9.2, 9.1(a) says,
11 "perform functions and duties hereunder, each agent shall
1.2
:3
l
i
14 1
I
16
act as agents."
THE COURT: Hold the phone.
You're on page 150, right?
MR. ROSS: Yes.
THE COURT: "CIT appointed adtninistrative agent and
2.7 I collateral agent hereunder -- in accordance with the terms
:.8 there hereof and the other credit documents, each agent
::.9 agrees to act in its capacity on the expressed conditions
?.0 contained herein and the other credit documents.u
21 So I have to go to these other credit documents to
22 find out what the conditions are, don't n
23 Who's the credit party?
24 MR. HARRIS: Your Honor, Allied Systems Holding are
'I r:;
... ! the other borrowers and the credit parties and the
/.6 guarantors.
151
I
Proceedings
THE COURT: Now, where are you reading from?
3 MR. SPALTEN: In our brief, which refers now to
I
4 Section 9.8 --
THE COURT: See, I like going to the documents
0 themselves rather than to the briefs.
7. Collateral documents and guarantee, right?
a MR. SPALTEN: Yes. And there in 9.8.
9 THE COURT: Hold on.
10 Plaintiff, you're a secured party, right?
11 MR. WARD: Right. One of them, your Honor.
1:2 THE COURT: "Authorizes the agent." That's CIT.
13 are the agent for and representative of the secured
14 parties with respect to the guarantee.
15 MR. WARD: Your Honor, we don't even think 9.8 is
16 relevant.
17 I THE COURT: Look, I've got to look at all of this
H3 stuff.
19 {Pause in the proceedings.)
20 THE COURT: "Subject to Section 10.5, without
21 further written consent or authorization, the agent may
22 execute any documents or instruments necessary and that has
23 to do with sale/release any guarantor from the guarantee may
24 be required to give consent under 10.5."
25 Let me look at 10.5.
26 MR. WARD: And. obviously, your Honor, this i.s not
16
1 Proceedings
2 abot.lt releasi.n.g liens or gttara.ntees t?r selling ar1ything--
.3 THE COURT: That says it cequires a written
~ concurrence of the written lenders.
MR. HARRIS: Your Honor, the provision of 9.8 and
6 consent clause 10.5 talks about in connection with a
7 sale or disposition of assets or release of the guarantor.
8 Neither is the case before you.
9
THE COURT : I agree . I don ' t see how
10
MR. HARRIS: We're talking release of claims
11 between lenders.
12
THE COURT: Counsel is making an argument. I want
13 to see where he's going with it. I've got a dead end here.
14 MR. SPALTEN: Well, your Honor, the credit
15 agreements name CIT as their agent and --
16
THE COURT: But there's a restriction. 'rhere were
17 no unlimited -- there was unlimited authority giv(:;n to the
18 agent. You have to look at the documents and see what
19 they're authorized to do and I've got to be specific here.
20 It says specify, so we're looking at the specifics.
21 Where do you hang your hat on this authority
22 I arqument? This is a motion. Have we had discovery yet?
23 MR. WARD: No, your Honor.
24
MR. Sl?ALTEN: Your Honor, here is the thing.
25 Plaintiffs throughout treated them as their agent and made
26 demand on them t.o take the positions.
17
1 Proceedings
THE COURT: Is that in the documents'? We're
3 talking about a 3211 motion here, not talking about after
4 we've had depositions. I can't rnake a n ~ { factual finding.
5
:viR. WARD: It's not attached to the complaint, your
6 Honor. It's not subject to the record. This is not a
7 motion for summary judgement.
8
MR. SPALTEN: You:.e Honor, it is referred to in the
9 c:omplaint. It was an exhibit to their complaint. It's a
10 L(""tt.er from Ropes & Gray, Eric Kimball -- to Eric Kimball of
11 Patton Boggs (phonetic} who represented CIT in which --
12
MR. WARD: Your Honor, that's not part of the
13 claim.
14
THE COURT: Plaintiff says it's not part of the
15 complaint.
16
1'-iR. SPALTEN: Excuse me. Attached to t.:he answer
17 and counterclaim in the Georqia litigation, which :it was.
18
THE COURT: Now you bootstrapped me. You can't do
19 tl1at. You can t bootstrap yourself because something
20 happened in the Florida litigation until you establish
21 there's authority.
::.2 Is this a document from the lender'?
23 MR. SPALTEN: Yes.
24 THE COURT: Okay.
25 MR. SPALTEN: The lender.
THE COURT: Let me see it.
'' ,
18
1
Proceedings
2 MR. SPALTEN: (Handing.)
3 MR. ROSS: Your Honor --
THE COURT: One from each s i.de, please.
5 {Pause in the proceedings.)
THE COURT: This is a halfway drafted attorney's
7 letter I ever seen. What in the world can you take from
8 this?
9
'
MR. SPALTEN: It's a demand by the lender on the
10 <.:J.')'ent to -- not to honor an amendment to a properly enacted
11 amendment to a credit document governing a multimillion
12 dollar facility.
13 THE COURT: And from that you want me to infer
14 ?
15 MR. SPALTEN: Well, it's not just from that, your
lG Honor. Mr. Ward came .into this courtroom and argued and
17 said --
18 THE COURT: l'm sorry. I don
1
t -- sometimes I
19 don't get it. This letter I don't get.
20 From your point of 1iew, how in the world does this
21 letter help you?
22 MR. SPALTEN: It is a demand.
23 THE COURT: This is an objection to everything your
21 client was trying to do.
25
MR. SPALTEN: Exactly. Made to the agent who they
26 cbviously contend is responsible for representing their
Proceedings
THE COURT: Wa
Wait. You're a making a leap of
4 logic I can't follow.
5 CIT is trying to do something or being asked to do
something and here t
people are saying we object, this is
'? wrong, you don't have a power to do it, and we re reserving
8 aJ.l of our rights. How in the world can you use this letter
9 against them?
10 MR. SPALTEN: They' .r.e saying Yucaipa was doing
11 something and they are saying to CIT, who is their agent,
12 the plaintiff's agent, we want you to take this position
13 a.gainst Yucaipa. And subsequently
14 THE COURT: Hang on. Hang on. Whoa, whoa, whoa,
15 v:hoa. cJust slow down, okayi'
16 You quote language to me. Don't give me these
17 I characterizations. I think you're playing fast and loose
18 with the facts.
19. They say it would be imprudent for the ,'':J.gent to act
:zo llpon t:he board direction. They don't believe there's such a
211 provis.ion in the credit agreement. They're staking out
I
I
22 t h c ~ i r position.
23
We doubt the validity. It's inappropriate for the
24 I ,1gent to assist in such conduct. It goes on and on and on.
25 And then they hold that they have then - the last paragraph
2 6 of -- a blanket disclaimer of any waiver,
20
1
Proceedings
2
What language are you referring to? Quote the
3 1 language. Don't characterize it. These are lawyers. Give
1
I
4'
I
Ci I
61
7
8
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I
a little credit. Quote the language. What language do
you want me to say implies what you -- what you need to
gather from this document?
MR. SPALTEN: Your Honor, if I may have the
9 document.
10 THE COURT: (Handing.)
11
What exhibit is this in the papers?
12
MR. WARD: It's not an exhibit to the complaint.
13 It
1
s an exhibit to the motion.
14 THE COURT: I've seen it in the motion papers.
15 Where is it?
16 MR. WARD: Exhibit B to the motion to dismiss.
17
I
THE COURT: Yes, I see it.
18 Help him out. Come on. So it doesn't take too
19 much time.
20
MR. Sl?ALTEN: Judge, in the second paragraph, '
1
As
21 you know, our fiem represents Black Diamond Capital
22 Management LLC and Spectrum Group Management LLC, managers
23 of funds that are 1enders under the credit agreement. It
1
s
24 our view and the view of the clients that the agents should
25
refuse to acknowledge the purported direction
livered by
26 the sponsors."
1 Proceedings
THE COURT: Okay.
MR. Sl?ALTEN: Okay? Subsequently, that that is --
4 THE COURT: It's their view. It's their that
5 this is what you should do. They' :re not directing them to
6 do anything. It's their view. 'I'hat does not authorize CIT
7 to go into Georgia State court and give away their rights.
9
I
10 I
MR. SPALTEN: But what happened subsequently,
Judge, is CIT presses this view.
THE COURT: Look, fellow, s is a 3211 motion.
11 You've got to give me something that's the equivalent of a
12 slam dunk. Something in the documents that absolutely
13 treys this cause of action. Doesn't have to be just a
14 general release, but something in the contract language that
15 :really says, CIT, you're authorized to do this, this is what
16 did. Forget about it.
17 They litigated in Georgia. Fine. You be able
18 to establish that as a defense in t s case. I don't
19 But on the basis of these documents?
20 MR. Sl?ALTEN: Your Honor, we believe there is more
21 I than simply these documents.
22 THE COURT: What else have you got?
i
/. 3 I MR. SPALTEN: There are admissions made in this
24 case that, indeed, in filing that suit, CIT acted as the
25 I plaintiff's agent. Their express admissions, and I can
26 to you from the transcript of the earlier hearing in this
:22
1
Proceedings
2 matter, in which plaintiffs sought relief from your Honor
.3 and obtained it. A.nd this was a hearing.
4
THE COURT: I have the transcript. What page?
5
6
MR. SPALTEN: Okay. And it is on page two ett line
3. It begins - well, let's start fxom 1 ine 12. And
7
8
Mr. Ward says, '
1
My client was deposed
the Georgia action.
CIT, which was t:he agent, which was handling
defense of
9 this case in effect for us.
11
That
1
s his client.
1.0
MR. WARD: He should continue. "Settled on t.heir
11 own stay." I was drawing a distinction, your Honor, between
12 the fact they settled the case and dismissed only their own
13 claims. And because the argument had been made by Yucaipa
14 that CIT had been acting for us all along, I was simply
15 accepting the proposition for the argument and saying, well,
16 that may have been so. Thats why I said in effect. But I
said
settled on their own stay. Meaning they settled
L7
Hl
he case and settled out from under us, if ycm will. And if
19 = could get into that argument when I get up, I
1
11 explain
20 it.
21
THE COURT: I really-- that's not even a
22 misstatem,ent b'Y
::n
CIT was the agent. We know that, right?
24
They were handling defense of that case. They
25 were.
26 In effect for us settled on their own stay.
23
1
Proceedings
Settled on their own stay. The for us I don't
3 te understand, but if you think I'm going to dismiss this
4 case because of two words uttered by counsel em the record
'31 trying to explain in a preliminary way what was going on in
6 tl:te case, you
1
re not going to get it. You're not. I
1
m
7 sorry. That's not justifiable under any circumstances. If
8 tha.t' s
1 you got, then we'll move on to the next motion,
9 j please.
10 Anything
11 MR. ROSS: Your Honor, we do have more.
12
There is an affidavit from their client in which he
13 said CIT was acting as their agent. Mr. Ehrlich put in an
14 affidavit to you when they our --
15 THE COURT: Which affidavit is that'?
16 MR. WARD: That's Exhibit D, your Honor.
17 THE COURT: What paragraph'?
18 MR. ROSS: Paragraph two. It says
...,.
and I'm David
19 Ross, your Honor.
20 THE COURT: Yeah.
21 MR. ROSS: "Yucaipa spent the last two years
22 litigating virtually the same issues with the administrative
23 agent under the credit agreement, CIT, in state - Georgia
24 State court. That then--
') c
,., .;)
26 I
i
i
II
Your Honor, we have also provided you with the
counterclaim that CIT brought in its capacity as
1 Proceedings
2 administrative agent in which --
THE COURT: 'the agent cannot create s own
i
41 authority. It's got to be authorized. That's why I keep
5
..,
I
askinr:::r what are there in the documents that creates the
authority to act on behalf of this claim?
MR. HOSS: Your Honor, I heard what you said. I
24
8 don't think I can supply you with addit support in the
9 underlying documents. But your Honor needs to consider that
10 the folks sitting at the plaintiff's side of the tabJ.e here
11 , deposed in that Georgia case and were aware as they sat
12 their depositions that CIT was pursuing the counterclaims
13 on their behalf in their name.
11
15
16 that.
,, '7
.l I
MR. WARD: Your Honor, we never said they were
on our behalf. CIT was sued. You have to remember
THE COURT: Let me tell you what I think is the New
18 York State view.
19 Even if they were, if they didn't have authority,
?.0 they didn't have authority. Authority is not created by
21 this action. It's got to be an affirmative act or under the
22 circumstances it obviously would compel action.
23 MR. ROSS: Apparent authority is recognized in all
24 jurisdictions when the party says I'm here as
25 agent, I bring the claim as administrative agent, I settle
26 the claim and I dismiss it with prejudice as administrative
25
1 Proceedings
agent, and while the plaintiffs are aware 're doing
3 :.hat.
THE COURT: But, no, the -- .iffs have
'5 been taking -- consistently taking the position they did not
a settle on behalf of the plaintiffs. Maybe they were right
8 about a 3211 motion.
9
MR. ROSS: 1 agree with you, but you're allowed to
10 consider a clear and unambiguous dismissal with prejudice in
11; Gem:g:ia just as you were in this court. And if I handed up
2 to you a New York discontinuance with prejudice
13
THE COURT: I would have no problems if you could
I qive me some clear and unambiguous evidence that CIT was
I
1 I authorized to do that on their behalf.
16 I
MR. ROSS: Well, your Honor, they certainly had
17 apparent authority. We can't dispute that. They litigated
18 for two years.
1
(' ;
;;J I THE COURT: One of the arguments iff is
:;;;o! making, that CIT did not settle on behalf of the plaintiff.
21
riiR. WARD: We know that I your Honor I because the
22 settlement agreement says CIT is dtsmiss.:i.ng any and all
23 I of any third party. It's specific in the release
24 i language and the settlement agreement which Yucaipa is
I
25 t:cying to have your Honor not look at. There
1
s no cases
26 that say that. In .f. act, the cases in Georgia say you are
1 Proceedings
2 supposed to and allowed to look at the settlement agreement.
31
THE COURT: What was the action for against CIT?
4
MR. WARD: The action by the plaintiffs, your
5 Honor, was to force err to agree that the purported fourth
6 .::tmendment that I just described to your Honor at the
;
I
I
7 I beginning was fine. It was --
B THE COURT: CIT had taken the position, no, this is
9 not kosher?
10! MR. WARD: It was not. And, also, Yucaipa was not
ll I the requisite lender. When they entered into the settlement
12 :.1.greement, putting aside whether they were acting for us in
13 the litigation, when they entered into the settlement
14 :cxgreement, and it's specific, I would l.Lke to read your
15 , Honor the settlement agreement, the Limited release, right
I
16 here, your Eonur (indicating), the limited release contained
17 ns Exhibit E to our summons and complaint, It
1
s Exhibit E
18 to the summons and complaint, Y''ur Honor. It's page .four.
19
'THE COURT: Hang on. They didn' t tab the exhibits
20 on the motions.
21 The first exhibit was the credit ag:reement, rtght?
22
MR. WARD: The first agreement, your Honor, to the
23 motion to dismiss.
24 'l'HE COURT: Yes.
25
MR. WARD: The first agreement is the summons, your
26 Honor.
27
1 Proceedings
2 And in order for you to find the settlement
3 agreement, I can actually hand it up to your Honor because
4 I --
THE COUR.T: Is that Exhibit A?
c; 1 MR. WARD: It
1
s Exhibit E to the summons and
I
7 I complaint. My part.ner, Mr. Harris
8
THE COURT: Exhibit A is the last exhibit.
MR. WA.RD: My partner, Mr. Harris, will hand it up
10 t.o your Honor.
11
THE COURT: Let me take a look at it.
12
MR. WARD: l(b) of the settlement agreement " this
l. 3 is the settlement agreement signed
by CIT in its
14 individual capacity.
15 If you look at l(b), your Honor.
16
THE COURT: 1 (d)'?
17
MR. WARD: No. l(b) as in boy. l(d) is also
18 relevant. And, your Honor, you have to read actually on
191 page five. It's about seven lines up from subparagraph
20 l(c).
21
THE COURT: Well, you've asked me to read three
22 d.ifferent things at once, What am I reading at first?
23
MR. WARD: Actually, it's l(b), at the end of l(b).
THE COURT: Everybody, slow down, please.
MR. WARD: It's the second -- last sentence in
26 section l(b) and it says this--
28
1
Proceedings
2
THE COURT: Hold on. I can read for myself.
3
ti!R. WARD: Okay.
THE COURT: persons released to -- pursuant to
5 paragraph l(b), including, but not limited to, plaintiffs
6 and the counterclaim defendants, would not assert this
7 release a.s the defense against any claim brought by any
8 person other than
MR. WARD: It's the sentence before that I was
10 focusing on.
11 (Pause in the proceedings.)
12
THE COURT: Wow.
13
MR. WARD: Your Honor, before you do that, it's
14 even clearer in l(d). If you please read l(d). D.
1
r
.::::>
THE COURT: "The avoidance of doubt not
16 withstanding anything here -- contrary nothing in t:his
17 agreement --" blah, blah, blah, blah.
La
11
Any person entered other than the parties to this
19 agreement and each of their respective personal
20 representatives, successors and assignees and Comvest and
:n. its invest -"
22
MR. WARD: The signature line, your H.onor, is CIT.
23 It's Fried Frank for CIT.
24
THE COURT: Take your papers back.
The motion is denied.
26
:.1R. ROSS: Your Hon()r, can I just --
29
1
Proceedings
2
THE COURT: No. Enough. I'm serious. Enough.
J I'm not saying you don't have a defense here.
~ R . ROSS: I simply would like you to at least hear
5 my response to that before you deny the motion.
6
THE COUR'r: Go ahead,
7
fJ!R. ROSS: First of all, they're talking too fast,
B your Honor.
9
1
rhe claims that were brought as counterclaims by
101 CIT--
11 THE COURT: Are you asserting this defense -- this
12 release as a defense? Is that what you're doing?
13
!
14 1
16
17
18
19
20
MR. ROSS: No, no. Not at all.
THE COURT: You're not?
MR, ROSS: What I'm asserting, handling up the
nnrtual dismissal with prejudice which dismiss counterclaims
with prejudice.
THE COURT: Based upon --
MR. ROSS: Those are all --
THE COURT: Based upon this order th,:l.t was entered?
21 R:ased upon what? A motion or a trial or a settlement?
22 M R ~ WARD: The settlement agreement ..
23 MR. ROSS: The settlement agreement.
24
THE COURT: Thank you.
25
The motion is denied.
26
MR. ROSS: But, your Honor
1
Proceedings
2
THE COURT : Corne on (handing) ,
4 **********************************
CERTIFIED TO BE A TRUE AND ACCURATE TRANSCRIPT OF' THE ORIGINAL
5 STENOGRAPHIC MINUTES TAKEN OF THIS PROCEEDING.
6
7
9
10
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TONI
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................ ________________________ __
EXHIBITL
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
BDCM OPPORTUNITY FUND II, LP
BLACK DIAMOND CLO 205-1 LTD, and
SPECTRUM INVESTMENT PARTNERS,
L.P.,
Plaintiffs,
-against-
YUCAIPA AMERICAN ALLIANCE FUND
I, LP and YUCAIPA AMERICAN ALLIANCE
(PARALLEL) FUND I, LP
Defendants.
Index No. 650150/2012
ANSWER AND AFFIRMATIVE DEFENSES OF
DEFENDANTS YUCAIPA AMERICAN ALLIANCE FUND I, LP, AND
YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUND I, LP
Defendants Yucaipa American Alliance Fund I, LP and Yucaipa American Alliance
(Parallel) Fund I, LP (collectively, Yucaipa), by and through their counsel, Kasowitz, Benson,
Torres & Friedman LLP, hereby answers Plaintiffs Complaint dated January 17, 2012 (the
Complaint) as follows:
1. Yucaipa denies the allegations contained in paragraph 1 and respectfully refers
the Court to the Credit Agreement, and all the amendments thereto, for a full and accurate
statement of their contents.
2. Yucaipa denies knowledge or information sufficient to form a belief as to the
truth of the allegations concerning the undefined other agreements. Yucaipa denies the
remaining allegations contained in paragraph 2, and respectfully refers the Court to the Credit
Agreement, and all the amendments thereto, for a full and accurate statement of their contents.
FILED: NEW YORK COUNTY CLERK 08/08/2012
INDEX NO. 650150/2012
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/08/2012
2
3. Yucaipa denies the allegations contained in paragraph 3 and respectfully refers the
Court to the Credit Agreement, and all the amendments thereto, for a full and accurate statement
of their contents.
4. Yucaipa denies knowledge or information sufficient to form a belief as to the
truth of the allegations concerning what is typical of credit agreements of this type. Yucaipa
denies the remaining allegations contained in paragraph 4 and respectfully refers the Court to the
Credit Agreement, and all the amendments thereto, for a full and accurate statement of their
contents.
5. Yucaipa denies the allegations contained in paragraph 5 and respectfully refers the
Court to the Credit Agreement, and all the amendments thereto, for a full and accurate statement
of their contents.
6. Yucaipa admits that after the proper enactment of the Fourth Amendment
ComVest sold its majority interest in Allieds debt to Yucaipa. Yucaipa denies the remaining
allegations contained in paragraph 6 and respectfully refers the Court to the Credit Agreement,
and all the amendments thereto, for a full and accurate statement of their contents.
7. Yucaipa denies the allegations contained in paragraph 7, and respectfully refers
the Court to the Credit Agreement, and all amendments thereto, for a full and accurate statement
of their contents.
8. Yucaipa admits that it is the Requisite Lender under the Credit Agreement.
Yucaipa otherwise denies Plaintiffs characterization of the Fourth Amendment. Yucaipa denies
knowledge or information sufficient to form a belief as to the truth of the unspecified admissions
referenced in paragraph 8 and states that the question of whether Allied is in Default of the
Credit Agreement is a question of law to which no response is required. Yucaipa denies the
3
remaining allegations contained in paragraph 8 and respectfully refers the Court to the Credit
Agreement, and all amendments thereto, for a full and accurate statement of their contents.
9. Yucaipa denies the allegations contained in paragraph 9.
10. Yucaipa denies the allegations contained in paragraph 10, except admits that it
and Allied filed an action against CIT on November 13, 2009 (the Georgia Complaint) and that
CIT filed a verified answer and counterclaims against Yucaipa and Allied in its capacity as
Administrative Agent on December 21, 2009 (the CIT Counterclaim Complaint), and
respectfully refers the Court to the Georgia Complaint and the CIT Counterclaim Complaint for a
full and accurate statement of their contents.
11. Yucaipa denies the allegations contained in paragraph 11 and respectfully refers
the Court to the CIT Counterclaim Complaint and the Settlement Agreement for a full and
accurate statement of their contents.
12. Yucaipa denies the allegations contained in paragraph 12 and respectfully refers
the Court to the Settlement Agreement for a full and accurate statement of its contents.
13. Yucaipa denies the allegations contained in paragraph 13, except admits that
Yucaipa is the Requisite Lender, and respectfully refers the Court to the Credit Agreement, and
all amendments thereto, and the Settlement Agreement for a full and accurate statement of their
contents.
14. Yucaipa denies knowledge or information sufficient to form a belief as to the
motivation underlying the Complaint, admits the Complaint seeks the declaration referenced in
paragraph 14, and otherwise respectfully refers the Court to the Complaint for a full and accurate
statement of its contents.
4
PARTIES
15. Yucaipa admits, upon information and belief, the allegations contained in
paragraph 15.
16. Yucaipa admits, upon information and belief, the allegations contained in
paragraph 16.
17. Yucaipa admits, upon information and belief, the allegations contained in
paragraph 17.
18. Yucaipa denies the allegations contained in paragraph 18, except admits that
Defendants are Delaware limited partnerships with their principal place of business at 9130 West
Sunset Boulevard in Los Angeles, California.
JURISDICTIONANDVENUE
19. Yucaipa states paragraph 19 contains legal conclusions for which no response is
required, and denies the remaining allegations contained in paragraph 19.
20. Yucaipa states paragraph 20 contains legal conclusions for which no response is
required, and denies the remaining allegations contained in paragraph 20.
FACTUAL ALLEGATIONS
21. Yucaipa admits the allegations contained in paragraph 21.
22. Yucaipa admits that in May 2007 Allieds Plan of Reorganization was confirmed
and Yucaipa became Allieds majority shareholder. Yucaipa denies the remaining allegations
contained in paragraph 22.
5
23. Yucaipa respectfully refers the Court to the CIT Counterclaim Complaint for a
full and accurate statement of its contents and denies the remaining allegations contained in
paragraph 23.
24. Yucaipa admits the allegations contained in the first sentence of paragraph 24,
admits that it is a Lender under both the First Lien Loan and the Second Lien Loan, and further
admits Plaintiffs are Lenders under the First Lien Loan, but denies knowledge or information
sufficient to form a belief as to the truth of the allegation that Plaintiffs are Lenders under the
Second Lien Loan.
25. Yucaipa admits the allegations contained in the first sentence of paragraph 25 and
admits that the First Lien Loan initially consisted of Term Loans, the Revolving Loan and the
LC Facility in the amounts alleged by Plaintiffs, denies that such components exist today in the
amounts listed, respectfully refers the Court to the Credit Agreement, and the amendments
thereto, for a full and accurate statement of their contents and denies the remaining allegations
contained in this paragraph.
26. Yucaipa admits Plaintiffs are Lenders under the Credit Agreement, denies
knowledge or information sufficient to form a belief as to the truth of the remaining allegations
contained in paragraph 26, and respectfully refers the Court to the Credit Agreement, and the
amendments thereto, for a full and accurate statement of their contents.
27. Yucaipa respectfully refers the Court to the Credit Agreement, and the
amendments thereto, for a full and accurate statement of their contents, and denies the remaining
allegations contained in paragraph 27.
28. Yucaipa admits that it is Allieds majority shareholder and admits that Yucaipa
sought to become a Lender under the Credit Agreement. Yucaipa denies the remaining
6
allegations contained in paragraph 28 and respectfully refers the Court to the Credit Agreement,
and the amendments thereto, for a full and accurate statement of their contents.
29. Yucaipa respectfully refers the Court to the Credit Agreement, and the
amendments thereto, for a full and accurate statement of their contents, avers that whether
Lenders could not sell assign or transfer of their rights or obligations under the Credit
Agreement to Yucaipa is a question of law for which no response is required, and denies the
remaining allegations contained in paragraph 29.
30. Yucaipa denies the allegations contained in paragraph 30 and respectfully refers
the Court to the Credit Agreement, and the amendments thereto, for a full and accurate statement
of their contents.
31. Yucaipa states that the question of whether and to what extent Yucaipas
potential status as a Lender was subject to . . . restrictions and conditions, is a question of law
for which no response is required. Yucaipa denies the remaining allegations contained in
paragraph 31, and respectfully refers the Court to the Credit Agreement, and all the amendments
thereto, for a full and accurate statement of their contents
32. Yucaipa admits paragraph 32 purports to quote from the CIT Counterclaim
Complaint, but denies the remaining allegations contained in this paragraph and respectfully
refers the Court to the CIT Counterclaim Complaint and the Credit Agreement, and all the
amendments thereto, for a full and accurate statement of their contents.
33. Yucaipa denies the allegations contained in the first sentence of paragraph 33.
Yucaipa admits the allegations contained in the second and third sentences of paragraph 33, and
respectfully refers the Court to the Credit Agreement, and all the amendments thereto, for a full
and accurate statement of their contents.
7
34. Yucaipa denies the allegations contained in paragraph 34 and respectfully refers
the Court to the Credit Agreement, and all the amendments thereto, for a full and accurate
statement of their contents.
35. Yucaipa denies the allegations contained in paragraph 35 and respectfully refers
the Court to the Credit Agreement, and all the amendments thereto, for a full and accurate
statement of their contents.
36. Yucaipa denies the allegations contained in paragraph 36 and respectfully refers
the Court to the Credit Agreement, and all the amendments thereto, for a full and accurate
statement of their contents.
37. Yucaipa denies the allegations contained in paragraph 37, and respectfully refers
the Court to the Credit Agreement, and all the amendments thereto, and the communications
referenced in this paragraph for a full and accurate statement of their contents, except Yucaipa
admits that in August 2008, Allied informed the Lenders and CIT that it had failed to comply
with the financial covenants set forth in Sections 6.7(a) and 6.7(b) of the Credit Agreement, and
that Allied admitted that, as of August 30, 2008, it also had failed to disclose Yucaipa's
acquisitions of second lien debt for the months of June and July 2008, and further admits that
Allied stated such actions constituted Events of Default.
38. Yucaipa denies the allegations contained in paragraph 38.
39. Yucaipa denies the allegations contained in paragraph 39.
40. Yucaipa denies the allegations contained in paragraph 40.
41. Yucaipa admits that Allied and certain Lenders entered into the Forbearance
Agreement and respectfully refers the Court to the Forbearance Agreement for a full and
8
accurate statement of its content. Yucaipa denies the remaining allegations contained in
paragraph 41.
42. Yucaipa denies the allegations contained in paragraph 42, except admits the
paragraph purports to quote from the CIT Counterclaim Complaint, and respectfully refers the
Court to the CIT Counterclaim Complaint for a full and accurate statement of its contents.
43. Yucaipa denies the allegations contained in paragraph 43.
44. Yucaipa admits it launched an unsuccessful tender offer to acquire a majority of
Allieds debt in February of 2009. Yucaipa denies the remaining allegations contained in
paragraph 44 and respectfully refers the Court to the documents evidencing the tender offer for a
full and accurate statement of their contents.
45. Yucaipa admits that ComVest was Requisite Lender and that Yucaipa purchased
the Term Loan and LC Facility Obligations held by ComVest in August 2009, respectfully refers
the Court to the Credit Agreement, and all the amendments thereto, for a full and accurate
statement of their contents, and denies the remaining allegations contained in paragraph 45.
46. Yucaipa denies the allegations contained in paragraph 46 and respectfully refers
the Court to the Credit Agreement, and all the amendments thereto, for a full and accurate
statement of their contents.
47. Yucaipa denies Plaintiffs characterizations in paragraph 47 of the Third
Amendment, the Assignment and Assumption Agreement and the Fourth Amendment as
Purported, and respectfully refers the Court to those documents and the Credit Agreement, and
all the amendments thereto, for a full and accurate statement of their contents.
48. Yucaipa denies the allegations contained in paragraph 48 and respectfully refers
the Court to the Credit Agreement, and all the amendments thereto, for a full and accurate
9
statement of their contents.
49. Yucaipa denies the allegations contained in paragraph 49, and respectfully refers
the Court to the Credit Agreement, and all the amendments thereto, for a full and accurate
statement of their contents.
50. Yucaipa denies the allegations contained in paragraph 50, except admits the
paragraph purports to quote from the CIT Counterclaim Complaint, and respectfully refers the
Court to the CIT Counterclaim Complaint and the Credit Agreement, and all the amendments
thereto, for a full and accurate statement of their contents.
51. Yucaipa denies the allegations contained in paragraph 51, except admits the
paragraph purports to quote from the CIT Counterclaim Complaint, and respectfully refers the
Court to the CIT Counterclaim Complaint for a full and accurate statement of its contents.
52. Yucaipa denies the allegations contained in paragraph 52, except admits the
paragraph purports to quote from the CIT Counterclaim Complaint, and respectfully refers the
Court to the CIT Counterclaim Complaint for a full and accurate statement of its contents.
53. Yucaipa denies the allegations contained in paragraph 53.
54. Yucaipa denies the allegations contained in paragraph 54, except admits the
paragraph purports to quote from the CIT Counterclaim Complaint, and respectfully refers the
Court to the CIT Counterclaim Complaint and the Credit Agreement, and all the amendments
thereto, for a full and accurate statement of their contents.
55. Yucaipa denies the allegations contained in paragraph 55, except admits the
paragraph purports to quote from the CIT Counterclaim Complaint, and respectfully refers the
Court to the CIT Counterclaim Complaint for a full and accurate statement of its contents.
56. Yucaipa denies the allegations contained in paragraph 56.
10
57. Yucaipa denies the allegations contained in paragraph 57, except admits Yucaipa
is Allieds largest Lender and is the Requisite Lender.
58. Yucaipa denies the allegations contained in paragraph 58.
AS AND FOR A FIRST CAUSE OF ACTION
59. Yucaipa states paragraph 59 contains legal conclusions for which no response is
required, and denies the remaining allegations contained in this paragraph.
60. Yucaipa admits the Complaint seeks the declaration referenced in paragraph 60
but denies Plaintiffs are entitled to it.
ANSWER TO THE PRAYER FOR RELIEF
Yucaipa denies that Plaintiffs are entitled to the relief requested in their prayer for relief,
including subparts (a) through (c). Yucaipa expressly reserves the right to amend and supplement
its affirmative defenses.
DEFENSES
Without assuming the burden to prove any fact at issue which is Plaintiffs burden to
prove, Defendants assert the following affirmative defenses:
FIRST DEFENSE
The Complaint is barred by the doctrine of res judicata.
SECOND DEFENSE
The Complaint fails to state a claim upon which relief may be granted.
THIRD DEFENSE
There is a lack of a justiciable dispute between Plaintiffs and Defendants.
FOURTH DEFENSE
The Complaint is barred by the doctrine of waiver.
11
FIFTH DEFENSE
The Complaint is barred by the doctrine of estoppel.
SIXTH DEFENSE
The Complaint is barred by the doctrine of laches.
SEVENTH DEFENSE
The Complaint is barred by the doctrine of unjust enrichment.
EIGHTH DEFENSE
The Complaint is barred by the doctrine of unclean hands.
NINTH DEFENSE
The relief requested in the Complaint is barred by the doctrine of release.
TENTH DEFENSE
The Complaint is barred by the doctrine of consent.
ELEVENTH DEFENSE
The Complaint is barred because Defendants have not breached any legal duty owing to
Plaintiffs.
TWELFTH DEFENSE
The Complaint is barred for failure to join indispensible parties.
THIRTEENTH DEFENSE
The Complaint is barred because no other party to the Credit Agreement breached any
legal duty owing to Plaintiffs.
FOURTEENTH DEFENSE
The Complaint is barred because the Fourth Amendment was validly enacted.
12
FIFTEENTH DEFENSE
The Complaint is barred by the express terms of the parties contracts.
SIXTEENTH DEFENSE
The Complaint is barred because Plaintiffs have suffered no legally cognizable damages.
SEVENTEENTH DEFENSE
Plaintiffs lack standing to bring the claims asserted in the Complaint.
EIGHTEENTH DEFENSE
The Complaint is barred because Defendants conduct was proper, authorized, and/or
constituted a lawful exercise of contractual rights and duties.
WHEREFORE, Yucaipa respectfully requests that the Court enter judgment in its favor,
dismissing all claims against it with prejudice, and granting costs and other relief as the Court
may deem just and proper.
Dated: New York, New York
August 6, 2012
KASOWITZ, BENSON, TORRES
& FRIEDMAN LLP
By: /s/ David E. Ross
David E. Ross
David E. Spalten
Adam K. Grant
1633 Broadway
New York, New York 10019
Phone: (212) 506-1700
DRoss@kasowitz.com
Attorneys for Defendants Yucaipa American
Alliance Fund I, LP and Yucaipa American
Alliance (Parallel) Fund I, LP
EXHIBITM
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------- x
BDCM OPPORTUNITY FUND II, LP,
BLACK DIAMOND CLO 2005-1 LTD, and
SPECTRUM INVESTMENT PARTNERS,
L.P.,

Plaintiffs,
Index No.: 650150/2012

- against -
YUCAIPA AMERICAN ALLIANCE FUND
I, LP, and YUCAIPA AMERICAN
ALLIANCE (PARALLEL) FUND I, LP,
Defendants.
:
:
:
:
:
:
:
:
:
:
:
:
:
------------------------------------------------------- x
Motion Seq. No. 3
Hon. Charles E. Ramos

ORAL ARGUMENT
REQUESTED



PLAINTIFFS' NOTICE OF
MOTION FOR SUMMARY JUDGMENT

PLEASE TAKE NOTICE that upon the Affidavit of Richard Ehrlich, sworn to on
August 27, 2012, and the exhibits annexed thereto, the accompanying Memorandum of Law in
Support Of Plaintiffs' Motion for Summary Judgment, dated August 27, 2012, Rule 19-a(a)
Statement of Material Undisputed Facts and all prior pleadings and proceedings had herein,
Plaintiffs BDCM Opportunity Fund II, LP, Black Diamond CLO 2005-1 Ltd., and Spectrum
Investment Partners, L.P. will move this Court, at the Motion Submissions Part, Room 130, 60
Centre Street, New York, New York 10007, on the 12th day of September 2012, at 9:30 a.m. or
as soon thereafter as counsel can be heard, for an Order granting Plaintiffs' Motion for Summary
Judgment under Rule 3212 of the New York Civil Practice Law and Rules ("CPLR").

INDEX NO. 650150/2012
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 08/27/2012

2

PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR 2214(b),
answering papers and any notice of cross-motion, with supporting papers, if any, are required to
be served upon the undersigned at least seven days before the return date of this motion.

Dated: New York, New York
August 27, 2012
SCHULTE ROTH & ZABEL LLP
By: /s/ Robert J. Ward
Robert J. Ward
Adam Harris

919 Third Avenue
New York, New York 10022
(212) 756-2000
Attorneys for Plaintiffs BDCM Opportunity Fund
II, LP, Black Diamond CLO 2005-1 Ltd., and
Spectrum Investment Partners, L.P.


EXHIBITN




SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------- x
BDCM OPPORTUNITY FUND II, LP,
BLACK DIAMOND CLO 2005-1 LTD, and
SPECTRUM INVESTMENT PARTNERS,
L.P.,

Plaintiffs,
Index No.: 650150/2012

- against -
YUCAIPA AMERICAN ALLIANCE FUND
I, LP, and YUCAIPA AMERICAN
ALLIANCE (PARALLEL) FUND I, LP,
Defendants.
:
:
:
:
:
:
:
:
:
:
:
:
:
------------------------------------------------------- x
Motion Seq. No. 3
Hon. Charles E. Ramos





MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT











SCHULTE ROTH & ZABEL LLP
919 Third Avenue
New York, New York 10022
(212) 756-2000

Attorneys for Plaintiffs
BDCM Opportunity Fund II, LP,
Black Diamond CLO 2005-1 Ltd., and
Spectrum Investment Partners, L.P.

FILED: NEW YORK COUNTY CLERK 08/27/2012
INDEX NO. 650150/2012
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 08/27/2012

i

TABLE OF CONTENTS


PRELIMINARY STATEMENT .................................................................................................... 1

STATEMENT OF UNDISPUTED MATERIAL FACTS ............................................................. 7

ARGUMENT................................................................................................................................ 14

I. THE CREDIT AGREEMENT REQUIRES UNANIMOUS LENDER CONSENT FOR
AMENDMENTS TO THE DEFINITION OF REQUISITE LENDER................................... 16

II. THE PURPORTED FOURTH AMENDMENT AMENDS THE DEFINITION OF
REQUISITE LENDERS BY CHANGING THE MEANING OF TERM LOAN
EXPOSURE........................................................................................................................... 17

III. IT IS IRRELEVANT THAT THE PURPORTED FOURTH AMENDMENT DID NOT
CHANGE THE LITERAL WORDING OF THE DEFINITION OF THE REQUISITE
LENDERS. ............................................................................................................................. 19

IV. ALLIED FAILED TO OBTAIN THE CONSENT OF ALL AFFECTED LENDERS FOR
THE PURPORTED FOURTH AMENDMENT, AND THUS THE PURPORTED FOURTH
AMENDMENT NEVER BECAME EFFECTIVE. ............................................................... 23

CONCLUSION............................................................................................................................. 25



ii

TABLE OF AUTHORITIES

CASES PAGE(S)

Analisa Salon, Ltd. v. Elide Properties, LLC,
30 A.D.3d 448 (2d Dep't 2006).................................................................................................21

Broadwall Am., Inc. v. Bram Will-El LLC,
32 A.D.3d 748 (1st Dep't 2006) ................................................................................................23

Deutsche Bank AG v. JPMorgan Chase Bank,
No. 04 Civ. 7192, 2007 U.S. Dist. LEXIS 71933 (S.D.N.Y. Sept. 27, 2007) ..........................24

Eitan Ventures, LLC v. Peeled, Inc.,
94 A.D.3d 614 (1st Dep't 2012) ................................................................................................21

Gen. Phoenix Corp. v. Cabot,
300 N.Y. 87 (1949) ...................................................................................................................15

Giuffrida v. Citibank Corp.,
100 N.Y.2d 72 (2003) ...............................................................................................................14

Hudock v. Vil. of Endicott,
28 A.D.3d 923 (3d Dep't 2006).................................................................................................16

Jones Lang Wootten USA v. LeBoeuf, Lamb, Greene & MacRae,
243 A.D.2d 168 (1st Dep't 1998) ..............................................................................................23

In re Liquidation of Union Indem. Ins. Co. of N.Y.,
89 N.Y.2d 94 (1996) ...................................................................................................................7

Maysek & Moran, Inc. v. S.G. Warburg & Co.,
284 A.D.2d 203 (1st Dep't 2001) ..............................................................................................15

Pearce, Urstadt, Mayer & Greer Realty Corp. v. Atrium Dev. Assocs.,
77 N.Y.2d 490 (1991) ...............................................................................................................20

Richard Feiner and Co. v. Paramount Pictures Corp.,
95 A.D.3d 232 (1st Dep't 2012) ................................................................................................21

RM Realty Holdings Corp. v. Moore,
64 A.D.3d 434 (1st Dep't 2009) ................................................................................................23

Ruttenberg v. Davidge Data Sys. Corp.,
215 A.D.2d 191 (1st Dep't 1995) ..............................................................................................20



iii

Teitelbaum Holdings, Ltd. v. Gold,
48 N.Y.2d 51 (1979) .................................................................................................................15

Travelers Cas. and Sur. Co. v. Certain Underwriters at Lloyd's of London,
96 N.Y.2d 583 (2001) ...............................................................................................................20


RULES

N.Y. C.P.L.R. 3001 (McKinney 2012) .........................................................................................1

N.Y. C.P.L.R. 3212 (McKinney 2012) .............................................................................1, 14, 25


MISCELLANEOUS

BLACKS LAW DICTIONARY 592 (9th ed. 2009)....................................................................20



1


Plaintiffs BDCM Opportunity Fund II, LP, Black Diamond CLO 2005-1 LTD,
and Spectrum Investment Partners, L.P. (collectively, "Plaintiffs") respectfully submit this
memorandum of law in support of their motion, pursuant to CPLR 3212 and 3001, for summary
judgment declaring that the purported Fourth Amendment to the Credit Agreement is not, and
never was, effective, and that, as a result, Defendants are not, and may not act as, Requisite
Lenders under the Credit Agreement (the "Motion").
PRELIMINARY STATEMENT
There is no dispute that under the terms of the Credit Agreement
1
as initially
drafted and executed, Yucaipa American Alliance Fund I, LP and Yucaipa American Alliance
(Parallel) Fund, L.P. (collectively, "Yucaipa"), as the Sponsors

and controlling shareholders of
Allied Systems Holdings, Inc. ("Allied" or "Borrower"), were absolutely prohibited from being a
Lender to Allied, or an Eligible Assignee of a Lender, and thus could not acquire any Term
Loans or other Obligations under the Credit Agreement.
There is also no dispute that under the Third Amendment to the Credit Agreement
(which was approved by a majority of the Lenders at the request of Yucaipa and Allied),
Yucaipa was permitted to acquire a certain limited amount of Term Loans under the Credit
Agreement. However, the quid pro quo for permitting Yucaipa to acquire the Term Loans was
that a cap was imposed on the amount of Term Loans that Yucaipa could acquire, and that any
such Term Loans acquired by Yucaipa would be subject to substantial restrictions that among
other things, would preclude Yucaipa from voting on any matter that could affect in any way the
rights and remedies of the Lenders, or the Lenders ability to obtain payment on their debt.

1
All capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Credit
Agreement, which was annexed to the Complaint as Exhibit A and is attached hereto as Exhibit 1 to the Affidavit of
Richard Ehrlich, sworn to August 27, 2012 ("Ehrlich Aff."), filed in support of this Motion.


2

What is in dispute is whether Yucaipa was successful in its brazen attempt to
circumvent these carefully crafted and important restrictions and to become not only a Lender
but Requisite Lenders through the subterfuge of the purported Fourth Amendment. Plaintiffs
contend that Yucaipas scheme was in fact not successful because the purported Fourth
Amendment violates the Credit Agreement and the Third Amendment, and thus never became
effective.
Why is this so important? The answer is straightforward. This is not just about
Yucaipa becoming a Lender or owning Term Loans under the Credit Agreement. Rather, this is
about Yucaipa trying to claim ownership of a sufficient amount of the Term Loans so as to
declare itself Requisite Lenders, a designation that would allow Yucaipa to make decisions
binding on all Lenders, including the ability to direct the Agent for the Lenders to exercise (or
forbear from exercising) rights and remedies against Allied and the other Loan Parties upon the
occurrence and during the continuance of an Event of Default (which has been the case here
since 2008).
In this Motion, Plaintiffs, who are Lenders under the Credit Agreement, seek a
declaration that the purported Fourth Amendment to the Credit Agreement which ostensibly
strips out all of the fundamental restrictions incorporated into the Credit Agreement by the Third
Amendment on the ability of Defendants as the Sponsor and majority shareholders to acquire
more than a majority of the Term Loans and become the Requisite Lender is ineffective,
because Allied failed to obtain (and did not even seek) the unanimous Lender consent required
by the Credit Agreement to remove these restrictions. Because the Credit Agreement
unambiguously requires unanimous consent and because it admittedly was not obtained no
material issue of fact exists, and Plaintiffs' Motion should be granted.


3

In May 2007, Allied, together with several related entities, emerged from
bankruptcy under a plan of reorganization. As a result of that reorganization, Yucaipa became
the majority and controlling shareholder of Allied, controlling both Allieds Board of Directors
and its senior management. In connection with Allieds emergence from bankruptcy, Allied and
certain of its affiliates entered into that certain Amended and Restated First Lien Secured Super-
Priority Debtor in Possession and Exit Credit Agreement and Guaranty Agreement, dated May
15, 2007 with Goldman Sachs Credit Partners L.P., as lead arranger and syndication agent, The
CIT Group/Business Credit, Inc., as administrative agent and collateral agent (CIT or
Agent), and the Lenders from time party thereto (the "Credit Agreement"), pursuant to which
the Lenders agreed to provide Allied with loans and other financial accommodations in an
amount up to $265 million.
In light of the inherent conflict of interest between the interests of the Lenders (as
creditors), on the one hand, and the Borrower and its controlling equity holder (Yucaipa), on the
other hand, the Credit Agreement contained provisions that specifically prohibited Yucaipa, as
the Sponsor, from acquiring any of the Obligations or becoming a Lender. The reason for this
prohibition is that the Lenders did not want the controlling equity holder of the Borrower to have
any influence over decisions that could impair the Lenders recoveries and/or confer value upon
the equity, including whether to exercise rights and remedies (or not) upon the occurrence and
during the continuance of an Event of Default.
In April 2008, at the request of Yucaipa and Allied, a majority of the Lenders
agreed to enter into that certain Amendment No. 3 to Credit Agreement and Consent (the Third
Amendment), pursuant to which Yucaipa was permitted to acquire a limited amount of the
Term Loans. In order to continue the protections against the obvious conflicts of interest that


4

would arise by having the Sponsor and controlling shareholder as a Lender, the Lenders insisted
(and Yucaipa agreed) on, among other things, the inclusion of numerous and stringent
restrictions that, inter alia, limited the principal amount of Term Loans that Yucaipa could
purchase, expressly prohibited Yucaipa from having any voting rights with respect to any debt it
acquired, and, expressly required that the Yucaipa-held debt be wholly disregarded for purposes
of calculating Term Loan Exposure a critical input in determining which Lender or group of
Lenders might constitute Requisite Lenders.
2
The result of these limitations was that Yucaipa
could never be or become the Requisite Lender under the Credit Agreement,
3
and could never
direct the exercise of the Lenders' rights and remedies against Allied.
The current action arises because, in August 2009, after significant Events of
Default had occurred and had been continuing for more than a year (including payment defaults),
Yucaipa shamelessly undertook to carry out a scheme to circumvent these carefully crafted and
extensively negotiated restrictions. In doing so, Yucaipa choreographed a series of events that
purported to allow Yucaipa to acquire a majority of the Obligations outstanding under the Credit
Agreement and declare itself the Requisite Lender, with all of the powers the Requisite Lender
possesses to direct the Agent to exercise, or more importantly to direct the Agent to forbear from
exercising, the Lenders rights and remedies. Yucaipa had clear motivation for hijacking control
over the potential exercise of rights by Allieds Lenders: by that point Allied had been in
continuous default under the Credit Agreement since 2008 (and would continue to be in default

2
Under the Credit Agreement, Requisite Lenders have broad authority to direct the Agent to act (or refrain from
acting) on behalf of all Lenders, including the right to direct the Agent to declare Events of Default, accelerate
payment obligations and foreclose on the collateral securing the loans, or, perhaps even more importantly, to refuse,
on behalf of all the Lenders, to exercise those rights and remedies
3
In fact, because of this limitation Yucaipa could not even team up with other Lenders to become Requisite
Lenders.


5

until its recent bankruptcy filing), and this was the means by which Yucaipa could protect its
equity interests against the legitimate exercise of the Lenders rights and remedies.
In furtherance of this scheme, Allied first entered into an agreement with
ComVest Investment Partners III, L.P. ("ComVest") who then held a majority of the
outstanding Obligations under the Credit Agreement pursuant to which Yucaipa agreed to
purchase the Obligations held by ComVest for a combination of cash and future consideration to
ComVest (calculated as a percentage of Yucaipas ultimate recovery on the Obligations
purchased). That transaction, however, could not be consummated so long as the restrictions on
Yucaipas acquisition, ownership and voting of Obligations, as set forth in the Third
Amendment, remained effective. So, as a condition to the consummation of the transaction,
Yucaipa required that an amendment to the Credit Agreement be entered into by Allied and
ComVest eliminating the restrictions.
Thus, as further detailed below, on August 21, 2009, Yucaipa, as controlling
shareholder of Allied, caused Allied to enter into that certain Amendment No. 4 to Credit
Agreement with ComVest (the "Purported Fourth Amendment"), which purported to eliminate
any restrictions on Yucaipas ownership of Allied debt (including those that existed in the Credit
Agreement as initially drafted and executed), including the provision disregarding Yucaipa-held
debt in calculating Term Loan Exposure, which would otherwise have prevented Yucaipa from
becoming the Requisite Lender. After the Purported Fourth Amendment was signed, Yucaipa
consummated its transaction with ComVest and acquired a majority of the Obligations thereby
in one fell swoop ostensibly seizing control of the Lenders' rights and remedies under the Credit
Facility.


6

Yucaipas machinations, however, are flatly prohibited under the Credit
Agreement absent the consent of all of the Lenders, and thus the Purported Fourth Amendment is
invalid and of no force or effect. Section 10.5 of the Credit Agreement, which governs
amendments to the Credit Agreement, unambiguously states in clause (b) that [w]ithout the
written consent of each Lender . . . affected thereby, no amendment, modification, termination or
consent shall be effective if the effect thereof would: . . . (ix) amend the definition of 'Requisite
Lenders' . . . " Here, the Purported Fourth Amendment affected every Lender and had the
effect of amending the definition of Requisite Lenders. A material element of the definition of
Requisite Lenders is Term Loan Exposure, which is utilized both to define which Lenders may
become the Requisite Lender (or be part of a group comprising Requisite Lenders) and to
calculate whose Obligations may be counted in calculating the amount that a Lender or group of
Lenders must hold in order to be the Requisite Lender(s). There can be no question that the
Purported Fourth Amendments changes to the definition of Term Loan Exposure, at a
minimum, had the effect of changing the definition of Requisite Lenders by allowing the
Yucaipa-owned Obligations to be included in the calculation of Term Loan Exposure when,
under the Third Amendment, they had previously been expressly excluded. Indeed, it is hard to
imagine a more dramatic change to the definition of Requisite Lenders than one that hands the
fox the keys to the henhouse.
4


4
Although not material to the instant motion, which is based exclusively on the underlying documents, what
happened after the Purported Fourth Amendment proves out the exact reason why this type of amendment required
the consent of each affected Lender. Yucaipa, as the putative Requisite Lender, refused to direct the Agent to
enforce any of the Lenders rights under the Credit Agreement and other loan documents despite substantial and
continuing Events of Default under the Credit Agreement, including the failure to pay tens of millions of dollars in
principal and interest. In fact, rather than directing the Agent to exercise remedies for the benefit of the Lenders,
Yucaipa attempted to direct the Agent to release to the Borrowers cash collateral held in a segregated account for
the benefit of the Lenders. Yucaipa allowed this state of affairs to continue for almost three years, holding the
Agent and remaining Lenders at bay while it tried to devise a scheme to achieve a recovery for itself to the detriment
of all other Lenders.


7

As such, by the express terms of the Credit Agreement, the Purported Fourth
Amendment could only become effective upon the unanimous consent of the Lenders. It is
undisputed that Allied did not obtain or even seek consent from any Lender other than
ComVest, whom Yucaipa paid off and indemnified to sell out the remaining Lenders.
Accordingly, the Purported Fourth Amendment is not, and never was, effective under the plain
terms of the Credit Agreement, and Yucaipa is not the Requisite Lender. No material issue of
fact exist as to these matters, and Plaintiffs are entitled to summary judgment as a result.
STATEMENT OF UNDISPUTED MATERIAL FACTS
Background. Allied, based in Georgia, is a leading provider of distribution and
transportation services to the automotive industry, specializing in the delivery of new vehicles
from manufacturing plants to dealerships. (Ehrlich Aff., Ex. 2, Verified Ga. Compl. 16;
5
Ex. 4,
Answer 21.) In May 2007, Allied and several related entities emerged from bankruptcy under
a plan of reorganization that, among other things, resulted in Yucaipa becoming the majority
shareholder of Allied with control over both Allied's Board of Directors and its senior
management. (Ehrlich Aff., Ex. 2, Verified Ga. Compl. 17; Ex. 4, Answer 22.)
To finance its May 2007 emergence from bankruptcy, Allied obtained financing
through two credit facilities consisting of (a) a $265 million senior secured first priority credit
facility evidenced by the Credit Agreement (the First Lien Facility), and (b) a $50 million
second lien credit facility (Second Lien Facility). (Ehrlich Aff., Ex. 2, Verified Ga. Compl.
18; Ex. 4, Answer 24.) The First Lien Facility is governed by the Credit Agreement, and was

5
As set forth in the Complaint in this case (New York Action), Yucaipa was a plaintiff in a prior action in
Georgia (Georgia State Court Action) where Yucaipas actions in connection with Allied and Allieds debt were
at issue. As set forth in Plaintiffs' Opposition to Defendants' Motion to Dismiss in this case, once Plaintiffs' Agent
ceased representing Plaintiffs' interests in the Georgia State Court Action, Plaintiffs filed the New York Action.
Statements contained in Yucaipas verified complaint in the Georgia State Court Action (Verified Ga. Compl.)
may be treated as informal judicial admissions in the New York Action. See, e.g., In re Liquidation of Union Indem.
Ins. Co. of N.Y., 89 N.Y.2d 94, 103 (1996).


8

comprised of (i) term loans in the aggregate principal amount of $180 million (the Term
Loans); (ii) a $35 million revolving credit facility from CIT (the Revolving Loan); and (iii) a
$50 million synthetic letter of credit facility (LC Facility). (Ehrlich Aff., Ex. 2, Verified Ga.
Compl. 18; Ex. 4 Answer 25.) Plaintiffs are Lenders under the Credit Agreement who own
or control, with power to vote, between $40 million and $60 million of the Term Loan and L/C
Facility under the First Lien Facility. (See Ehrlich Aff., Ex. 3, Compl. 26; Ex. 4, Answer 26.)
Requisite Lenders under the Credit Agreement. Central to the Credit Agreement
is the concept of the Requisite Lender(s). As defined in the Credit Agreement, which definition
specifically incorporates the definition of Term Loan Exposure, the Requisite Lenders are
one or more Lenders having or holding Term Loan Exposure, LC
Exposure and/or Revolving Exposure and representing more than 50% of
the sum of (i) the aggregate Term Loan Exposure of all Lenders, (ii) the
aggregate LC Exposure of all Lenders and (iii) the aggregate Revolving
Exposure of all Lenders.
(Ehrlich Aff., Ex. 1, Credit Agreement 1.1.)
As majority debt holders, the Requisite Lenders are vested with broad authority to
make key decisions affecting the rights of all Lenders, including Plaintiffs. Thus, for example,
subject to certain important exceptions (one of which is applicable here), Requisite Lender
consent is all that is required for any amendment, modification, termination or waiver of any
provision of the [Credit Agreement], or consent to any departure by any [Borrower or Guarantor]
therefrom.
6
(Id. 10.5(a).) In addition, the Requisite Lenders are vested with authority to
direct the Agent to exercise certain rights and remedies on behalf of all Lenders, such as
declaring Events of Default, demanding immediate payment by Allied of any and all amounts

6
"Credit Document" is defined as the Credit Agreement, "the Notes if any, the Collateral Documents, the
Intercreditor Agreement . . . an all other documents, instruments or agreements executed and delivered by a Credit
Party for the benefit of any Agent, Issuing Bank or any Lender in connection herewith." ( 1.1.) Credit Party means
each Borrower and each Guarantor." (Id.)


9

due, or commencing foreclosure on the collateral pledged to secure the Obligations. (Ehrlich
Aff., Ex. 1, Credit Agreement 8.1, 9.8; Ex. 4, Answer 33.) Significantly, in addition to the
right to direct the Agent to exercise remedies on behalf of all Lenders, the Requisite Lender also
has the power to direct the Agent to refrain from exercising such remedies.
7
(Ehrlich Aff., Ex. 1,
Credit Agreement 8.1, 9.8; Ex. 4, Answer 33.) In light of the critical role the Requisite
Lender plays in directing the exercise (or non-exercise) of the rights of the Lenders, the Credit
Agreement expressly prohibited, absent the consent of all affected Lenders, any amendment or
modification of the Credit Agreement if the effect thereof would . . . amend the definition of
Requisite Lenders. (Ehrlich Aff., Ex. 1, Credit Agreement 10.5(b)(ix).)
Given the manifest conflict of interest that would arise if Yucaipa as controlling
and majority shareholder of Allied were able to control the exercise of the Lenders rights and
remedies under the Credit Agreement, and thereby protect and benefit itself as equity owner, the
Credit Agreement as initially drafted and executed foreclosed any possibility that Yucaipa could
become a Requisite Lender. Under the Credit Agreement, the only parties eligible to be a
Requisite Lender are Lenders under the Credit Agreement, which consist solely of the original
Lender signatories to the Credit Agreement, and Eligible Assignees who subsequently become
Lenders pursuant to an Assignment Agreement. (Id. 1.1.) Yucaipa was not a Lender
signatory under the Credit Agreement. (Id.) Nor could Yucaipa become a Lender through an
Assignment Agreement because, pursuant to Section 10.6(c) of the Credit Agreement, Lenders
were only permitted to sell, transfer or assign their rights under the Credit Agreement (i.e., enter
into an Assignment Agreement) to Eligible Assignees. (Id. 10.6(c)) The definition of Eligible

7
Pursuant to Section 9.8(b) of the Credit Agreement, no individual Lender is permitted to take any action to enforce
any rights as against the collateral.


10

Assignee expressly provides that no . . . Sponsor shall be an Eligible Assignee. (Id. 1.1.)
Yucaipa is the Sponsor. (Id.)
Limited Modification of the Credit Agreement. In or around April 2008,
Yucaipa sought to acquire a portion of the Obligations under the Credit Agreement (and thus
become a Lender under the Credit Agreement). (Ehrlich Aff., Ex. 4, Answer 28; Ex. 5, Third
Amendment, Recitals.) However, due to the restrictions prohibiting Yucaipa from being an
Eligible Assignee, Yucaipa could only purchase the Obligations if an amendment to the Credit
Agreement were executed permitting such acquisition. (Ehrlich Aff., Ex. 1, Credit Agreement
1.1, 10.6(c).) As a result, Yucaipa and Allied requested and received consent from a majority
of the Lenders to amend the Credit Agreement the Third Amendment to permit Yucaipa to
become a "Lender" under extremely limited circumstances and conditions and with severe
restrictions. (Ehrlich Aff., Ex. 5, Third Amendment 2.1.)
Specifically, under the Third Amendment, Yucaipa was expressly designated a
Restricted Sponsor Affiliate and was:
Prohibited from accumulating over (i) 25% of the aggregate principal amount of
the Term Loan Exposure held by all Lenders or (ii) $50 million of the principal
amount of Term Loans (Ehrlich Aff., Ex. 5, Third Amendment 2.7(c), 2.7(e))
thus preventing the acquisition of the majority ownership stake required to
become a Requisite Lender;
8


Prohibited from exercising any and all voting rights it would otherwise have as a
Lender, including the right to consent to an amendment of the Credit Agreement
or the right to vote its debt in any Allied bankruptcy thereby precluding
Yucaipa from exercising any voting rights needed to act as a Requisite
Lender (Id. 2.1(e), 2.7(a), 2.7(b), 2.7(e));

Prohibited from including its Term Loans in any calculation of Term Loan
Exposure when such calculation was required under the Credit Agreement thus

8
Yucaipa was also prohibited from acquiring any Revolving Loans or LC Deposit Loans. (Ehrlich Aff., Ex. 5,
Third Amendment 2.1(c).)


11

again precluding Yucaipa from amassing a sufficient stake to become a
Requisite Lender (Id. 2.1(e)); and

Required to contribute to Allied as capital no less than 50% of the aggregate
principal amount of any Term Loans that Yucaipa obtained within ten days after
the date of such acquisition thus further minimizing the impact Yucaipa
could assert through its ownership of the Term Loans. (Id. 2.7(e).)

To ensure Yucaipa's compliance with these fundamental restrictions, the Third Amendment
further required Allied to deliver to the Administrative Agent monthly reports of the amount of
Term Loans acquired and held by Yucaipa, and the price paid for such loans.
9
(Ehrlich Aff., Ex.
5, Third Amendment 2.3(a).)
These conditions and restrictions make clear the Lenders continuing intent under
the Credit Agreement to preclude Yucaipa from ever becoming, or even being eligible to
become, the Requisite Lender. Because of these conditions and restrictions, the Third
Amendment did not affect the Lenders in the manner that would require the consent of each
Lender under section 10.5(b) of the Credit Agreement.
10

Yucaipa Usurps Requisite Lender Status. By early 2009, Allied had been in
continuous default under its Credit Agreement Obligations for more than a year.
11
(Ehrlich Aff.,

9
Despite this requirement, and in contravention of the Third Amendment, Yucaipa utilized its control over Allied to
cause Allied to fail to deliver these monthly reports of Yucaipa's holdings, which constituted another Event of
Default under the Credit Agreement. In fact, since August 2008, Allied, at Yucaipa's direction and control, has been
in continuous default under the Credit Agreement. (See Ehrlich Aff., Ex. 2, Verified Ga. Compl. 27, 29; Ex. 4,
Answer 37.) Allied and Yucaipa acknowledged the defaults and recognized that the defaults entitled the Lenders
to accelerate the debt. (Ehrlich Aff. Ex. 7, Forbearance Agreement.)
10
Section 10.5(a) of the Credit Agreement generally provides that amendments or modifications to the Credit
Agreement will be effective if consented to by Requisite Lenders (i.e., holders of a majority of the outstanding
Obligations). If, however, the proposed amendment or modification is of the type identified in subclauses (i)-(xi) of
section 10.5(b), the amendment or modification must be consented to by each Lender that would be affected
thereby. The reason for the distinction is that amendments or modifications of the types set forth in subclauses (i)-
(xi) are clearly ones that could fundamentally change a Lenders decision to extend (or withhold the extension of)
credit, and thus the Credit Agreement requires that any affected Lender be consulted and its consent obtained.
These changes have the most significant impact on Lender economics and can fundamentally change the initial
contract between each Lender and the Borrower.
11
Allied has since formally disclosed that, among other things, it has failed to make principal and interest payments
for multiple consecutive quarters, failed to comply with the financial covenants in the Credit Agreement, failed to


12

Ex. 2, Verified Ga. Compl. 27, 29; Ex. 4, Answer 37.) In a transparent effort to frustrate the
Lenders rights under the Credit Agreement in particular to prevent the Lenders from declaring
the Obligations to be immediately due and payable Yucaipa engineered a two-step hijacking of
Allieds Credit Facility. First, Yucaipa and ComVest entered into an Assignment and
Assumption Agreement whereby Yucaipa agreed to acquire the Obligations owned by ComVest
for a combination of cash and future consideration. (Ehrlich Aff., Ex. 2, Verified Ga. Compl.
33; Ex. 4, Answer 45.) That transaction, however, could not be consummated so long as the
restrictions on Yucaipas acquisition, ownership and voting Obligations, as set forth in the Third
Amendment, remained effective. So as a condition to consummation of the transaction Yucaipa
required that an amendment to the Credit Agreement be entered into by Allied and ComVest
eliminating the restrictions.
Thus, on August 21, 2009, Yucaipa caused Allied to enter into the Purported
Fourth Amendment with ComVest, the then-Requisite Lender. (Ehrlich Aff., Ex. 6, Purported
Fourth Amendment.) No Lenders other than ComVest consented to, nor were even informed of,
the Purported Fourth Amendment prior to its execution (Ehrlich Aff., Ex. 6, Purported Fourth
Amendment at 11-13) even though stripping out the conditions and restrictions that prevented
Yucaipa from becoming Requisite Lender clearly affected all the Lenders.
The sole purpose and effect of the Purported Fourth Amendment was to remove
all of the restrictions imposed on Yucaipa's acquisition, ownership and voting of Obligations
under the initial Credit Agreement and the Third Amendment, thereby for the first time making
Yucaipa eligible to be a Requisite Lender. (See, e.g., Ehrlich Aff., Ex. 6, Purported Fourth
Amendment 2.1(b), 2.4.) Thus, the Fourth Amendment purports to:

deliver requisite financial information and failed to disclose the extent of Yucaipa's holdings. (See Ehrlich Aff., Ex.
7, Forbearance Agreement.)


13

Modify the definition of Term Loan Exposure (a term expressly used in the
definition of Requisite Lenders in the Credit Agreement) to delete the language
from Term Loan Exposure added by the Third Amendment that excludes the
amount of Term Loans held by Yucaipa from any calculation of the aggregate
amount of Term Loans outstanding (Ehrlich Aff., Ex. 6, Purported Fourth
Amendment 2.1(b); Ex. 5, Third Amendment 2.1(c); Ex. 1, Credit Agreement
1.1);
Eliminate the provision of the Credit Agreement added by the Third Amendment
that prohibited Yucaipa from acquiring more than the lesser amount of 25% of the
aggregate Term Loan Exposure, or $50 million of the principal amount of Term
Loans (Ehrlich Aff., Ex. 6, Purported Fourth Amendment 2.4(c); Ex. 5, Third
Amendment 2.7(c); Ex. 1, Credit Agreement 10.6(c));
Eliminate the restrictions placed on Yucaipa's right to vote as if it was a Lender,
including the right to consent to any modification of the Credit Agreement and to
vote its debt in bankruptcy, that were added by the Third Amendment (Ehrlich
Aff., Ex. 6, Purported Fourth Amendment 2.4(a); Ex. 5, Third Amendment
2.7(a); Ex. 1, Credit Agreement 10.5);
Eliminate the requirement added by the Third Amendment that Yucaipa was
required to make a capital contribution to Allied of 50% of the aggregate
principal amount of Term Loans it acquired. (Ehrlich Aff., Ex. 6, Purported
Fourth Amendment 2.4(e); Ex. 5, Third Amendment 2.7(e).); and
Eliminate the restriction in the definition of Eligible Assignee in the Credit
Agreement as initially drafted that prohibited the Sponsor from becoming an
Eligible Assignee. (Ehrlich Aff., Ex. 6, Purported Fourth Amendment 2.1(b);
Ex. 5, Third Amendment 2.1(c); Ex. 1, Credit Agreement 1.1.)
12


The Fourth Amendment therefore accomplished what no rational Lender would have permitted
at the time the Credit Agreement was executed it afforded the opportunity for Yucaipa to
control both sides of the financing, to control simultaneously the Borrower, through its majority
equity position, and the Lenders, through its Requisite Lender position.
Upon the execution and purported effectiveness of the Purported Fourth
Amendment, Yucaipa and ComVest consummated the transactions contemplated by the
Assignment and Assumption Agreement. (Ehrlich Aff., Ex. 2, Verified Ga. Compl. 33; Ex. 4,

12
It is important to note that the Purported Fourth Amendment did not just eliminate the restrictions added by the
Third Amendment; rather, it purported to eliminate restrictions that existed in the original Credit Agreement, and on
which the Lenders relied in agreeing to extend credit in the first instance.


14

Answer 45.) Through that acquisition, and in conjunction with the purported removal of the
restrictions on Yucaipa in the Purported Fourth Amendment, Yucaipa now contends that it is the
Requisite Lender, with all of the attendant powers to enforce or refuse to enforce the Lenders
rights and remedies. (Ehrlich Aff., Ex. 2, Verified Ga. Compl. at 4-6; Ex. 4, Answer 8,
33.)

Not surprisingly, since purporting to become Requisite Lender, Yucaipa has refused to
allow the Agent to enforce any of those rights. It has prevented the Agent from taking any
actions on behalf of the Lenders to accelerate the Obligations or exercise remedies,
notwithstanding Allied admitted its continuing Events of Default for more than three years,
including the failure to pay millions of dollars of principal and interest on the Obligations to the
detriment of all of Allieds legitimate Lenders.
ARGUMENT
Summary judgment is warranted where there are no material issues of fact, and
judgment may be entered as a matter of law. See CPLR 3212(b); see also Giuffrida v. Citibank
Corp., 100 N.Y.2d 72, 81 (2003). Here, the material facts are undisputed:
Under the Credit Agreement, as amended by the Third Amendment,
Yucaipa could not be a Requisite Lender because of the restrictions on
Yucaipas eligibility to attain Requisite Lender status;
Allied and ComVest entered into the Purported Fourth Amendment
eliminating those restrictions;
As a result of the Purported Fourth Amendment and Yucaipas concurrent
acquisition of ComVests majority share of Allieds Obligations, Yucaipa
now purports to be the Requisite Lender;
Section 10.5(b) of the Credit Agreement unambiguously requires the
consent of all affected Lenders to any amendment that has the effect
of amending the definition of Requisite Lender;
All of Allieds other Lenders are undeniably affected by an amendment
that would permit Yucaipa to ascend to Requisite Lender status; and
Neither the Plaintiffs nor any Lender, other than ComVest, consented to
the Purported Fourth Amendment.


15

The only issue before the Court therefore is whether, under the plain terms of the Credit
Agreement, the Purported Fourth Amendment had the effect of amending the Requisite Lender
definition within the meaning of section 10.5(b), thereby requiring consent of all affected
Lenders, which was not obtained. All of the Lenders were affected by this amendment because,
prior to the Purported Fourth Amendment, Yucaipa could not become the Requisite Lender, and
thereby frustrate the rights of the Lenders in order to protect its ownership interests in Allied,
whereas after the Purported Fourth Amendment it could and did.
This motion thus presents a pure issue of contract construction, which can and
should be decided on summary judgment. As the Court of Appeals has made clear, [w]here the
intention of the parties may be gathered from the four corners of the instrument, interpretation of
the contract is a question of law, and no trial is necessary to determine the legal effect of the
contract. Gen. Phoenix Corp. v. Cabot, 300 N.Y. 87, 92 (1949); see Teitelbaum Holdings, Ltd.
v. Gold, 48 N.Y.2d 51, 56 (1979) ("Interpretation of an unambiguous contract provision is a
function of the court, and matters extrinsic to the agreement may not be considered when the
intent of the parties can be gleaned from the face of the instrument."); see also Maysek & Moran,
Inc. v. S.G. Warburg & Co., 284 A.D.2d 203, 204 (1st Dept 2001) ([T]he construction of an
unambiguous contract is a question of law for the court to pass on, and . . . circumstances
extrinsic to the agreement or varying interpretations of the contract provisions will not be
considered, where . . . the intention of the parties can be gathered from the instrument itself.
(internal quotation omitted)).
As set forth below, the intent of the parties to the Credit Agreement to preclude
Yucaipa from becoming a Requisite Lender is patently clear from the four corners of the
agreement, and no amendment inconsistent with that intent was permitted without the consent of


16

all Lenders affected thereby, which would be all Lenders. That consent was never given, and the
Fourth Amendment is thus a nullity, requiring a declaratory judgment in favor of Plaintiffs. See
Hudock v. Vill. of Endicott, 28 A.D.3d 923, 924 (3d Dept 2006) (where a contract is
unambiguous, and summary judgment is warranted, a declaratory judgment in favor of the
movant must be entered).
I. THE CREDIT AGREEMENT REQUIRES UNANIMOUS LENDER CONSENT
FOR AMENDMENTS TO THE DEFINITION OF REQUISITE LENDER.
Amendments to the Credit Agreement are governed by Section 10.5, which
generally requires (except in specific defined circumstances, including ones applicable here) only
Requisite Lender consent for any amendment or modification to the Credit Agreement. (See
Ehrlich Aff., Ex. 1, Credit Agreement 10.5(a).) For certain amendments or modifications,
however, consent of the Requisite Lender alone is not sufficient. Sections 10.5(b) and (c) set
forth certain amendments or modifications that are deemed to be so fundamental to the rights of
each Lender that they cannot be changed by the vote of a simple majority. Rather, they must be
consented to by each Lender affected thereby.
Included among those amendments which require the consent of each Lender
affected thereby are any amendments that have the effect of amending the definition of Requisite
Lender. Specifically, Section 10.5(b)(ix) provides that:
Without the written consent of each Lender (other than a
Defaulting Lender) that would be affected thereby, no amendment,
modification, termination or consent shall be effective if the effect
thereof would:
(ix) amend the definition of Requisite Lenders . . .
(emphasis added).
As noted above, Requisite Lenders are defined in the Credit Agreement as:


17

one or more Lenders having or holding Term Loan Exposure, LC
Exposure and/or Revolving Exposure and representing more than 50% of
the sum of the (i) aggregate Term Loan Exposure of all Lenders, (ii) the
aggregate LC Exposure of all Lenders and (iii) the aggregate Revolving
Exposure of all Lenders.
(Ehrlich Aff., Ex. 1, Credit Agreement 1.1.) Integral and material to the definition of Requisite
Lenders are the numerous defined terms incorporated in the definition of Requisite Lenders, the
meanings of which are necessary to give the Requisite Lenders definition its substance.
II. THE PURPORTED FOURTH AMENDMENT AMENDS THE DEFINITION OF
REQUISITE LENDERS BY CHANGING THE MEANING OF TERM LOAN
EXPOSURE.
The Purported Fourth Amendment dramatically changes a key definition
incorporated and integrated into the definition of Requisite Lenders; namely, the definition of
Term Loan Exposure. Term Loan Exposure is used both to determine who is eligible to be a
Requisite Lender and to calculate the amount of the Obligations held by a Lender (or group of
Lenders) in determining the Requisite Lenders. (Id. 1.1.)
Prior to the Purported Fourth Amendment, Term Loan Exposure was defined in
the Third Amendment to include the outstanding principal amount of Term Loans held by a
Lender, but explicitly provided that, with respect to any provisions of this Agreement relating to
voting rights of Lenders (including the right of Lenders to consent to or take any other action
with respect to any amendment . . . of any provision of this Agreement . . .), the aggregate
outstanding principal amount of the Term Loans of all Restricted Sponsor Affiliates [i.e.,
Yucaipa] shall be disregarded for purposes of this definition of Term Loan Exposure.
(Ehrlich Aff., Ex. 5, Third Amendment 2.1(e) (emphasis added).) In other words,
notwithstanding the fact that Yucaipa was permitted to acquire a limited amount of Term Loan
Obligations, Yucaipa had no voting rights or any rights to become Requisite Lenders. (See id.)
Indeed, by the express terms of the Third Amendment, upon acquiring any interest in the Term


18

Loans, Yucaipa knowingly and irrevocably waive[d] any and all right to exercise any voting
rights it would otherwise have as a Lender for all purposes under [the Credit Agreement]. (Id.
2.7(e)(iv) (emphasis added).)
The Purported Fourth Amendment strikes all of these restrictions on Yucaipas
ability to own and vote Allieds Term Loans (and removes the restriction on Yucaipa acquiring
other Classes of Loans, i.e. Revolving Loans or LC Deposits), thereby allowing Yucaipa
Allieds controlling shareholder to purchase ComVest's interest in the Loans and then control
all of the material decisions on behalf of Allieds Lenders (and bind them in that regard). (See,
e.g., Ehrlich Aff., Ex. 6, Purported Fourth Amendment 2.1(b), 2.4(a), 2.4(c)-(e).) To the point
here, the Purported Fourth Amendment expressly amends the definition of Term Loan Exposure
to eliminate the provision requiring Yucaipas Term Loan share be excluded from the calculation
of Term Loan Exposure, thereby permitting Yucaipas Term Loan Exposure to be counted for
purposes of determining the Requisite Lenders. (Id. 2.1(b).)
It is indisputable that prior to the Purported Fourth Amendment, Yucaipa could
not be the Requisite Lender, irrespective of whether it held any of Allieds Obligations. It is
only because of the Purported Fourth Amendment that Yucaipa can claim to be the purported
Requisite Lender. It is hard to imagine a more fundamental change to the definition of Requisite
Lenders than one that allows for the first time a subordinate stakeholder with widely divergent
interests to be eligible to be the Requisite Lender, and, in particular, the Sponsor, who initially
was specifically excluded from ever becoming a Lender, let alone the Requisite Lender. Given
that fundamental change, the Purported Fourth Amendment required unanimous consent of all
Lenders affected thereby, which was never obtained. As a matter of law, the Purported Fourth
Amendment therefore never became effective.


19

III. IT IS IRRELEVANT THAT THE PURPORTED FOURTH AMENDMENT DID
NOT CHANGE THE LITERAL WORDING OF THE DEFINITION OF THE
REQUISITE LENDERS.
In order to avoid the consequences of its failure to obtain Lender consent to the
Purported Fourth Amendment, Yucaipa contended in the Georgia State Court Action that
unanimous Lender consent was not required because the Purported Fourth Amendment did not
change the specific words contained in the definition of Requisite Lenders. According to
Yucaipa, as long as the words in the definition of Requisite Lenders remain the same, the other
Lenders are powerless to prevent any change to the meaning of those defined terms regardless of
the effect the changes may have on their rights. That position is entirely baseless.
First, it is obvious that Yucaipa directly amended the Requisite Lender definition
by changing the meaning of one of the key definitions integrated into the definition of Requisite
Lender (i.e., the definition of Term Loan Exposure); however, Lender consent would have been
required in any event. By its express terms, Section 10.5(b) does not merely require Lender
consent for literal amendments to the definition of Requisite Lenders, but rather for any
amendment where the effect thereof would amend the definition of Requisite Lenders. (See
Ehrlich Aff., Ex. 1, Credit Agreement 10.5(b) (emphasis added).)
This provision necessarily is broader than one that only applies to literal
amendments. Put simply, if Section 10.5(b) were meant to cover only literal amendments, the
phrase the effect thereof would be surplusage the provision could merely state that no
amendment . . . shall be effective if it . . . (ix) amends the definition of Requisite Lenders. In
fact, that is precisely the language used in Section 10.5(c) which, for example, provides that
[n]o amendment, modification, termination or waiver of any provision of the Credit Documents
. . . shall: . . . (ii) amend . . . any provision hereof relating to the Swing Line Sublimit or the
Swing Line Loans without the consent of Swing Line Lender. (Id. 10.5(c).) The difference in


20

wording between Section 10.5(b) (if the effect thereof would . . . amend the definition of
Requisite Lenders.) and 10.5(c) (no if the effect thereof language) is important. It is well
settled that, in interpreting a contract, the court "cannot and should not accept an interpretation
that ignores the interplay of the terms, renders certain terms 'inoperable,' and creates a conflict
where one need not exist." Pearce, Urstadt, Mayer & Greer Realty Corp. v. Atrium Dev.
Assocs., 77 N.Y.2d 490, 497 (1991); see Travelers Cas. and Sur. Co. v. Certain Underwriters at
Lloyd's of London, 96 N.Y.2d 583, 594 (2001) (courts should strive to give effect to every
sentence, clause, and word in a contract); Ruttenberg v. Davidge Data Sys. Corp., 215 A.D.2d
191, 196 (1st Dep't 1995) (an interpretation that gives effect to all of the terms of an agreement is
"preferable to one that ignores terms or accords them an unreasonable interpretation"). The only
interpretation that both gives meaning to the phrase the effect thereof, and takes into account
the material difference in the wording of Sections 10.5(b) and 10.5(c), is one that reads Section
10.5(b) to apply to indirect (as well as literal) amendments, and that interpretation should
therefore control.
There can be no dispute that the Purported Fourth Amendment at a minimum
in effect amended the definition of Requisite Lenders. Any amendment to a material term
integrated into the definition of Requisite Lender necessarily has an effect on how Requisite
Lenders are defined.
13
By changing the definition of Term Loan Exposure to permit Yucaipas
Term Loans to count toward a determination of the Requisite Lender, the Purported Fourth
Amendment materially changed who could be the Requisite Lender under the Credit Agreement.
Whether that is considered a literal change to the definition of Requisite Lenders, or an indirect

13
Although its meaning is self-evident, it is worth noting that "Effect" is defined by Black's Law Dictionary as: "1.
Something produced by an agent or cause; a result, outcome, or consequence." BLACK'S LAW DICTIONARY
592 (9th ed. 2009). There can be no serious question that the "result, outcome, or consequence" of the Purported
Fourth Amendment was to change the definition of Requisite Lenders.


21

one,
14
is of no moment; it is a material change that required the consent of all Lenders affected
thereby (which was all Lenders).
Second, Yucaipas interpretation is wholly inconsistent with the parties intent
with respect to the Requisite Lender provision. To ascertain the parties' intent, a court should
"examine the contract as a whole and interpret its parts with reference to the whole." Eitan
Ventures, LLC v. Peeled, Inc., 94 A.D.3d 614, 616 (1st Dep't 2012); see also Richard Feiner and
Co., Inc v. Paramount Pictures Corp., 95 A.D.3d 232, 237-8 (1st Dep't 2012) ("[T]he intention
of the parties to a contract must be ascertained not from one provision but from the entire
instrument."); Analisa Salon, Ltd. v. Elide Properties, LLC, 30 A.D.3d 448, 448-49 (2d Dep't
2006) (reasoning that a "contract must be read as a whole in order to determine its purpose and
intent" and "single clauses cannot be construed by taking them out of their context and giving
them an interpretation apart from the contract of which they are a part") (internal quotations
omitted).
The Credit Agreement and its Third Amendment leave no doubt that the intent of
the parties was to preclude Yucaipa from having any influence over the actions and conduct of
the Lenders, acting in their capacities as such, let alone ever permitting the Sponsor (Yucaipa) to
become the Requisite Lender. Under the original Credit Agreement, Yucaipa, the Sponsor, was
proscribed from owning or acquiring any of the Obligations under the Credit Agreement because
it was specifically excluded from the definition of Eligible Assignee. (See Ehrlich Aff., Ex. 1,
Credit Agreement 10.6(c) (permitting the sale, transfer or assignment rights under the Credit
Agreement only to Eligible Assignees); 1.1. (no Sponsor shall be an Eligible Assignee").)

14
In any case, as set forth below, a party to a contract may not do indirectly what it is precluded from doing
directly.


22

The initial Credit Agreement therefore intentionally maintained a very strict wall between the
Lenders on one side, and Yucaipa/Allied on the other.
Although the Third Amendment permitted Yucaipa to acquire a limited quantity
of Allied debt, it further demonstrated the intent of the Lenders to keep Yucaipa on its side of the
wall by the addition of express and severe restrictions that were included in the Third
Amendment to prevent Yucaipa from having any influence of the Lenders decisions, let alone
from becoming the Requisite Lender. Thus, Yucaipa was absolutely barred from exercising any
voting rights (Ehrlich Aff., Ex. 5, Third Amendment 2.1(e), 2.7(a), 2.7(b), 2.7(e)); was
prohibited from consenting to any action in connection with any amendment, modification,
termination or waiver of any provision of the Credit Agreement (id. 2.7(e)); and was forced to
make a capital contribution to Allied of at least 50% of the aggregate principal amount of any
Term Loans it acquired (id. 2.7(e), (k).) Most significantly, the Third Amended provided that
any Term Loans acquired by Yucaipa were to be entirely disregarded from any calculation of the
Term Loan Exposure (i.e., the aggregate amount of Term Loans outstanding), which thereby
precluded Yucaipa from ever becoming a Requisite Lender (id. 2.1(e).).
In the face of this clear evidence of intent found within the four corners of the
Credit Agreement and the Third Amendment that Yucaipa was specifically precluded from
exercising any Lender voting rights, let alone acting as the Requisite Lender, an interpretation of
Section 10.5(b) that would permit Yucaipa to become a Requisite Lender without the consent of
all Lenders affected thereby is flatly inconsistent with the manifest intent of the parties. The
inescapable consequence of any other interpretation would allow those aligned with the
Borrower to seize and control the rights of the Lenders, which defeats the purpose of the Credit
Agreement from the perspective of the Lenders. That is not a reasonable interpretation and


23

should be rejected. See RM Realty Holdings Corp. v. Moore, 64 A.D.3d 434, 438 (1st Dep't
2009) (a court should choose that construction which will carry out the plain purpose and object
of the agreement.")
Finally, Yucaipas position completely ignores the purpose of defined terms.
Defined terms are a commonly used short-hand for the broader meaning of a utilized term in
order to avoid the need to state repetitiously the full meaning of the term every time it appears
throughout a document. Whenever the defined term is utilized, however, it is as if the full
meaning was used in each place that defined term is mentioned. Thus, if the meaning of a
defined term is changed, it necessarily changes every substantive provision in which the defined
term is used. Ignoring that reality is merely elevating form over substance," which is
impermissible. See, e.g., RM Realty Holdings Corp., 64 A.D.3d at 437. Yucaipa cannot be
permitted to seize upon a drafting convenience to permit it to do (arguably) indirectly that which
it indisputably could not do directly. See Broadwall Am., Inc. v. Bram Will-El LLC, 32 A.D.3d
748, 751 (1st Dep't 2006); Jones Lang Wootten USA v. LeBoeuf, Lamb, Greene & MacRae, 243
A.D.2d 168, 170 (1st Dep't 1998) ("It is said that a party may not accomplish by indirection that
which it is forbidden to do directly.").
IV. ALLIED FAILED TO OBTAIN THE CONSENT OF ALL AFFECTED LENDERS
FOR THE PURPORTED FOURTH AMENDMENT, AND THUS THE
PURPORTED FOURTH AMENDMENT NEVER BECAME EFFECTIVE.
Because the Purported Fourth Amendment had the effect of amending the
Requisite Lender definition, Section 10.5(b) required the consent of all affected Lenders in order
for the purported amendment to become effective. In this case, there can be little question that
every Lender would be profoundly affected by an amendment that would allow Yucaipa to
achieve Requisite Lender status.


24

The Requisite Lender is given sole authority to direct the Agent for the Lenders to
exercise or not to exercise the rights and remedies granted to the Lenders under the Credit
Agreement and other loan documents, including the right to call Events of Default, demand
immediate payment by Allied of any and all amounts due, or commence foreclosure on the
collateral pledged to secure the Obligations. (Ehrlich Aff., Ex. 1, Credit Agreement 8.1, 9.8.)
Indeed, at the time of the Purported Fourth Amendment, those powers were particularly
significant because Allied already had been in default (including payment default) under the
Credit Agreement for nearly a year (and remained so until its recent bankruptcy filing). (See
Ehrlich Aff., Ex. 2, Verified Ga. Compl. 27, 29; Ex. 4, Answer 37; Ex. 7, Forbearance
Agreement.) It thus greatly affected all of Allieds legitimate Lenders when Allieds controlling
shareholder whose interests were diametrically opposed to the Lenders interests seized
control of the Lenders ability to enforce rights under the Credit Agreement.
15

Notwithstanding the plain language of Section 10.5(b), requiring unanimous
consent of the affected Lenders in order to effect an amendment of the Requisite Lender
definition, it is undisputed that Allied did not receive or even seek the consent of any Lender
other than ComVest. Yucaipa and Allieds failure to obtain unanimous written consent from all
affected Lenders for the Purported Fourth Amendment renders the amendment invalid. See
Deutsche Bank AG v. JPMorgan Chase Bank, No. 04 Civ. 7192, 2007 U.S. Dist. LEXIS 71933,
at *71 (S.D.N.Y. Sept. 27, 2007) (holding, on motion for summary judgment, that an amendment

15
As discussed above, there can be no doubt that each of the Lenders was "affected" by the change in the definition
of Requisite Lenders proposed by the Purported Fourth Amendment, which for the first time would have permitted
Yucaipa, as Sponsor, to become the Requisite Lender and take control of the Obligations under the Credit
Agreement. This stands in stark contrast to the amendments contained in the Third Amendment, which was
approved and became effective upon the consent of the holders of a majority of the outstanding Obligations. While
the amendments in the Third Amendment allowed Yucaipa for the first time to acquire a limited amount of Term
Loans such amendments also imposed severe restrictions that effectively neutralized Yucaipa to insure that such
ownership could not be used to "affect" any other Lender.


25

to a Credit Agreement was invalid and ineffective under New York law where Required Lender
consent was insufficient to ratify the amendment when the plain terms of the Credit Agreement
required the consent of each affected lender). As such, Plaintiffs are entitled to a declaration that
the Purported Fourth Amendment is null and void, and that Yucaipa is not the Requisite Lender.
CONCLUSION
For all the foregoing reasons, Plaintiffs respectfully requests that this Court grant
the Motion; award Plaintiffs, pursuant to CPLR 3212, summary judgment; declare the Purported
Fourth Amendment null and void; declare that Yucaipa is not the Requisite Lender under the
Credit Agreement; and grant Plaintiffs such other and further relief as is just and proper.

Dated: New York, New York
August 27, 2012
Respectfully submitted,

SCHULTE ROTH & ZABEL LLP

By: /s/ Robert J. Ward
Robert J. Ward
Adam Harris

919 Third Avenue
New York, New York 10022
(212) 756-2000
Attorneys for Plaintiffs

EXHIBITO
FILED: NEW YORK COUNTY CLERK 08/27/2012
INDEX NO. 650150/2012
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/27/2012
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------X
BDCM OPPORTUNITY FUND II, LP,
BLACK DIAMOND CLO 2005-1 LTD, and
SPECTRUM INVESTMENT PARTNERS,
L.P.,
Plaintiffs,
-against-
YUCAIPA AMERICAN ALLIANCE FUND
I, LP, and YUCAIPA AMERICAN
ALLIANCE (PARALLEL) FUND I, LP,
Defendants.
- - - - - - - - ~ - ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X
STATE OF CONNECTICUT)
) ss:
COUNTY OF FAIRFIELD )
Index No.:650150/2012
Hon. Charles E. Ramos
Motion Seq. No. 3
AFFIDAVIT OF RICHARD
EHRLICH IN SUPPORT OF
PLAINTIFFS' MOTION FOR
SUMMARY JUDGMENT
RICHARD EHRLICH, being duly sworn, deposes and states:
1. I am the Managing Director of Black Diamond Capital Management, L.L.C.,
which through its affiliated entities is the investment manager for PlaintiffBDCM Opportunity
Fund II, LP and Black Diamond CLO 2005-1 Ltd. I submit this Affidavit in support of
Plaintiffs' Motion for Summary Judgment. The information contained in this Affidavit is of my
own personal knowledge or derived from my review of the relevant documents in the case,
which are attached hereto, and, if called as a witness, I could and would testify competently
thereto.
2. This motion for summary judgment is made on the basis of (i) the agreements
entered into by the parties hereto (or their predecessors or agents or entities under the
Defendants' control), (ii) the Verified Complaint previously filed in Georgia by the Defendants
in this action and (iii) the pleadings filed in this action. As set forth in paragraph 10, below,
Yucaipa is the majority and controlling shareholder of Allied.
3. Attached hereto as Exhibit 1 is a true and correct copy of the Amended and
Restated First Lien Secured Super-Priority Debtor in Possession and Exit Credit Agreement and
Guaranty Agreement, dated May 15, 2007, between Allied Systems Holdings, Inc. and Allied
Systems Ltd. (L.P. ), as Borrowers, the Lenders from time to time party thereto, and the CIT
Group Business Credit, Inc., as Administrative and Collateral Agent (the "Credit Agreement").
4. Attached hereto as Exhibit 2 is a true and correct copy ofthe Verified Complaint
in Allied Systems Holdings, Inc., Yucaipa American Alliance Fund I, LP, and Yucaipa American
Alliance (Parallel) Fund I, LP v. The CIT Group/Business Credit, Inc., Civil Action No. 2009-
CV-177574 (Super. Ct. ofFulton County, Ga.) ("Verified Ga. Compl."). The Verified Ga.
Complaint, filed and verified by Allied Systems Holdings, Inc., Yucaipa American Alliance
Fund I, LP and Yucaipa American Alliance (Parallel) Fund I, LP, was previously submitted in
this action as Exhibit F to the Affirmation of Adam K. Grant, one of Defendants' attorneys,
sworn on March 23, 2012, and filed in support of Defendants' Motion to Dismiss.
5. Attached hereto as Exhibit 3 is a true and correct copy of Plaintiffs' Complaint in
the instant action, BDCM Opportunity Fund II, LP, Black Diamond CLO 2005-1 LTD, and
Spectrum Investment Partners, L.P. v. Yucaipa American Alliance Fund I, LP, and Yucaipa
American Alliance (Parallel) Fund I, LP, No. 650150/2012, dated January 17, 2012 ("Compl.").
6. Attached hereto as Exhibit 4 is a true and correct copy of the Answer and
Affirmative Defenses of Defendants' Yucaipa American Alliance Fund I, LP and Yucaipa
American Alliance (Parallel) Fund I, LP, dated August 6, 2012 and filed in the instant action
("Answer").
2
7. Attached hereto as Exhibit 5 is a true and correct copy of the Amendment No.3
to Credit Agreement and Consent (the "Third Amendment"), dated April17, 2008, between
Allied Systems Holdings, Inc., Allied Systems, Ltd. (L.P.), as Borrowers, and the Agent, CIT
Group/Business Credit, Inc.
8. Attached hereto as Exhibit 6 is a true and correct copy of the Amendment No.4
to Credit Agreement (the "Purported Fourth Amendment"), dated August 21, 2009, between
Allied Systems Holdings, Inc., Allied Systems, Ltd. (L.P.), as Borrowers, and Com Vest
Investment Partners III, L.P., as Requisite Lender.
9. Attached hereto as Exhibit 7 is a true and correct copy of the Forbearance
Agreement, dated September 24, 2009, between Allied Systems Holdings, Inc., Allied Systems,
Ltd. (L.P.), as Borrowers, The CIT Group/Business Credit, Inc., as Administrative Agent and
Collateral Agent, and Lenders ("Forbearance Agreement").
10. In May 2007, Allied Systems Holdings, Inc. ("Allied") and several related entities
emerged from bankruptcy under a plan of reorganization that resulted in Defendants Yucaipa
American Alliance Fund I, LP and Yucaipa American Alliance (Parallel) Find, I, LP
(collectively, "Yucaipa") becoming the majority and controlling shareholder of Allied. (Ex. 2,
~ 17; Ex., 4, ~ 22.)
11. Allied financed its May 2007 emergence from bankruptcy with a $265 million
senior secured first priority credit facility ("First Lien Facility"), and a $50 million junior credit
facility ("Second Lien Facility"). (Ex. 2, ~ 18; Ex. 4, ~ 24.)
12. The First Lien Facility is governed by the Credit Agreement, and was comprised
of (i) term loans in the aggregate principal amount of $180 million (the "Term Loans"); (ii) a $35
million revolving credit facility from CIT (the "Revolving Loan"); and (iii) a $50 million
3
synthetic letter of credit facility ("LC Facility"). (Ex. 2, ~ 18.) Plaintiffs are Lenders under the
Credit Agreement. (Ex. 4, ~ 26.)
13. The original Credit Agreement expressly excludes Yucaipa, as the Sponsor, from
the definition of Eligible Assignee, thereby prohibiting Yucaipa from becoming Lenders under
the Credit Agreement. (Ex.l, 1.1. 1 0.6.)
14. Under the Credit Agreement, "Requisite Lenders" is defined as "one or more
Lenders having or holding Term Loan Exposure, LC Exposure and/or Revolving Exposure and
representing more than 50% of the sum of the (i) aggregate Term Loan Exposure of all Lenders,
(ii) the aggregate LC Exposure of all Lenders and (iii) the aggregate Revolving Exposure of all
Lenders." (Ex. 1, 1.1.)
15. The Credit Agreement vests the Requisite Lender with the authority to direct the
exercise of certain Lender remedies such as declaring Events of Default or commencing
foreclosure on the collateral pledged to secure Allied's debt obligations. (Ex. 1, 8.1, 9.8; Ex.
4, ~ 33.)
16. The Credit Agreement prohibits - absent the written consent of all affected
Lenders- any modification or amendment of the Credit Agreement "if the effect thereofwould .
. . amend the definition of Requisite Lenders." (Ex. 1, 10.5(b)(ix).)
17. On April17, 2008, the Credit Agreement was amended, by the Third
Amendment, to permit Yucaipa, as the "Restricted Sponsor Affiliate," to purchase a limited
amount of Term Loans under limited circumstances and conditions. (Ex. 5, 2.1, 2.7.)
18. The restrictions in the Third Amendment precluded Yucaipa from becoming the
Requisite Lenders by, for example, (1) prohibiting Yucaipa from accumulating over 25% ofthe
aggregate principal amount of the Term Loan Exposure held by all Lenders or acquiring more
4
than $50 million ofthe principal amount ofTerm Loans (Ex. 5, 2.7(c), 2.7(e)); (2) precluding
Yucaipa from exercising any and all voting rights it would otherwise have as a Lender, including
the right to consent to an amendment of the Credit Agreement or the right to vote its debt in any
Allied bankruptcy (Ex. 5, 2.1(e), 2.7(a), 2.7(b), 2.7(e)); and (3) specifically excluding
Yucaipa's Term Loans from the calculation of Term Loan Exposure whenever such calculation
was required under the Credit Agreement (Ex. 5, 2.1(e).)
19. Since August 2008, Allied has been in continuous default under the Credit
Agreement for, among other reasons, failing to make principal and interest payments, failing to
comply with the financial covenants in the Credit Agreement and failing to deliver required
financial information. (Ex. 2, ~ ~ 27, 29; Ex. 4, ~ 37, Ex. 7.)
20. On August 21, 2009, Allied entered into the Purported Fourth Amendment with
Com Vest Investment Partners III, L.P. ("Com Vest"). (Ex. 6.)
21. The effect of the Purported Fourth Amendment was to remove all of the
restrictions imposed on Yucaipa, as the Sponsor and Restricted Sponsor Affiliate, were it to
acquire Obligations under the initial Credit Agreement and the Third Amendment. (Ex 6,
2.1(b), 2.4.)
22. The Purported Fourth Amendment amends the definition of"Term Loan
Exposure" by deleting the language which excludes all Term Loans held by Yucaipa. (Ex. 6,
2.1(b); Ex. 5, 2.1(c); Ex. 1, 1.1.) Term Loan Exposure is a variable used to determine
Requisite Lenders under the Credit Agreement. (Ex. 1, 1.1.)
23. By modifying the definition of "Term Loan Exposure," the Purported Fourth
Amendment had the effect of amending the definition ofRequisite Lenders. (Ex. 6, 2.1(b); Ex.
5, 2.1(c); Ex. 1, 1.1.)
5
24. On August 21, 2009, contemporaneously with the execution of the Purported
Fourth Amendment, Yucaipa and Com Vest executed a purported Assignment and Assumption
Agreement, whereby Yucaipa agreed to acquire the Obligations owned by Com Vest. (Ex. 2,
~ 33.)
25. As a result of the Purported Fourth Amendment and the Assignment and
Assumption Agreement with Com Vest, Yucaipa has declared that it is the Requisite Lender, with
all the attendant powers to enforce or refrain from enforcing the Lenders' rights and remedies
and Yucaipa has been seeking to exercise those attendant powers. (Ex. 2, ~ 4-6; Ex. 4, ~ 8.)
26. The effect of the Purported Fourth Amendment's change to the definition of
Requisite Lenders affected all Lenders (including Plaintiffs) because, as result thereof, Yucaipa-
the majority and controlling equity holder of the Borrower under the Credit Agreement- claims
to be the Requisite Lender. (Ex. 2, ~ 4-6; Ex. 4, ~ 8.)
27. Under the Credit Agreement, the consent of all affected Lenders is required to
make a modification that would have the effect of amending the definition of Requisite Lender.
(Ex. 1, 10.5(b)(ix).) However, Allied did not seek the approval of the Plaintiffs and did not
receive the consent ofPlaintiffs or of any Lender other than Com Vest to approve the Purported
Fourth Amendment. (Ex. 6, at 11-13.)
28. Because all of the affected Lenders did not consent to the Purported Fourth
Amendment, which amended the Credit Agreement's definition of Requisite Lenders, the
Purported Fourth Amendment is not, and was never, effective. (Ex. 6, at 11-13; Ex. 1,
10.5(b)(ix).)
6
29. The aforementioned statements are based on the documents attached hereto and
demonstrate that there exists no defense to Plaintiffs' cause of action for declaratory judgment.
Richard Ehrlich
Sworn before me this
J7 th day of August, 2012
Notary Pubhc
7
EXHIBITP
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-----------------------------------------------------------------------X
BDCM OPPORTUNITY FUND II, LP, :
BLACK DIAMOND CLO 2005-1 LTD : Hon. Charles E. Ramos
SPECTRUM INVESTMENT PARTNERS, :
L.P., : Motion Seq. No. 3
:
Plaintiffs, : Index No. 650150/2012
:
-against- :
:
YUCAIPA AMERICAN ALLIANCE FUND :
I, LP, and YUCAIPA AMERICAN :
ALLIANCE (PARALLEL) FUND I, LP :
:
Defendants. :
-----------------------------------------------------------------------X
DEFENDANTS MEMORANDUM OF LAW IN OPPOSITION
TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT
KASOWITZ, BENSON, TORRES
& FRIEDMAN LLP
David E. Ross
David E. Spalten
Adam K. Grant
Marissa E. Teicher
1633 Broadway
New York, New York 10019
(212) 506-1700
Attorneys for Defendants
FILED: NEW YORK COUNTY CLERK 09/26/2012
INDEX NO. 650150/2012
NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 09/26/2012
i
TABLE OF CONTENTS
Page(s)
TABLE OF AUTHORITIES.................................................................................................... iii
PRELIMINARY STATEMENT ................................................................................................1
STATEMENT OF FACTS.........................................................................................................4
I. The Credit Agreements Original Terms Did Not Allow A Sponsor To Also Be A
Lender ............................................................................................................................5
II. The Third Amendment Gave Sponsor Yucaipa The Right To Become A Lender ............5
III. Plaintiffs Were Aware Of, And Did Not Protest, Yucaipas Efforts To Become
Requisite Lender.............................................................................................................6
IV. The Fourth Amendment Allowed Yucaipa To Become Requisite Lender........................6
V. The Georgia Action Was Litigated By Plaintiffs Admitted Agent, CIT..........................7
VI. Plaintiffs Fail To Challenge The Georgia Dismissal, And Instead File This
Lawsuit...........................................................................................................................8
ARGUMENT.............................................................................................................................8
I. With No Discovery Yet Taken, Including On Defendants Potentially Dispositive
Affirmative Defenses, The Motion Is Premature And Must Be Denied ...........................8
A. As This Court Previously Determined, Discovery is Necessary on
Defendants Res Judicata Defense.......................................................................9
i. Discovery is Necessary Concerning the Agency Issue ...........................11
ii. This Court Also Has Determined That There Are Fact Questions
Whether The Georgia Settlement Agreement Is Binding On
Plaintiffs, And Thus Bars This Action On Res Judicata Grounds ...........13
B. Discovery is Also Necessary on Defendants Potentially Dispositive
Waiver and Estoppel Defenses ..........................................................................16
II. Plaintiffs Reading Of The Agreement Violates Fundamental Rules Of Contract
Construction; The Motion Must Be Denied Because Plaintiffs Cannot Show The
Absence Of Material Issues Of Fact Nor A Right To Judgment As A Matter Of
Law..............................................................................................................................17
A. Plaintiffs Construction Is Contrary To The Agreements Express Terms..........18
ii
i. The Doctrine of Expressio Unius Demonstrates Plaintiffs Are
Not Entitled to Summary Judgment as a Matter of Law.........................18
ii. Changing the Definition of TLE Did Not Change the Definition of
Requisite Lender ...................................................................................20
iii. Plaintiffs Cannot Show the Change to the Definition of TLE In the
Fourth Amendment Changed the Definition of Requisite Lender ...........21
iv. The Intent of the Credit Agreement Was Never to Prevent Yucaipa
From Becoming Requisite Lender .........................................................22
III. Under Any Reading Of The Agreement, Plaintiffs Cannot Show They Are
Entitled To The Declaration They Seek ........................................................................23
CONCLUSION........................................................................................................................25
iii
TABLE OF AUTHORITIES
Page(s)
CASES
1009 Second Ave. Assocs. v. New York City Off-Track Betting Corp.,
248 A.D.2d 106 (1st Dept 1998).........................................................................................19
335 Second St. Hous. Corp. v. Fridal Enters., Inc.,
36 A.D.3d 608 (2d Dept 2007) ....................................................................................... 3, 16
Amico v. Melville Volunteer Fire Co.,
39 A.D.3d 784 (2d Dept 2007) .............................................................................................9
Ayotte v. Gervasio,
81 N.Y.2d 1062 (1993)........................................................................................................17
Baseball Office of the Commr v. Marsh & McLennan, Inc.,
295 A.D.2d 73 (1st Dept 2002) ............................................................................................9
Bisbing v. Sterling Precision Corp.,
34 A.D.2d 427 (3d Dept 1970) ..................................................................................... 16, 17
Brown & Williamson Tobacco Corp. v. Gault,
280 Ga. 420 (2006).................................................................................................. 10, 11, 14
City of Centerville v. City of Warner Robins,
270 Ga. 183 (1998)..............................................................................................................14
City of Demorest v. Roberts & Dunahoo Props., L.L.C.,
288 Ga. App. 708 (Ga. Ct. App. 2008).................................................................................14
College Park Land Co. v. Mayor of College Park,
48 Ga. App. 528 (Ga. Ct. App. 1934) ..................................................................................11
Dice v. Inwood Hills Condo.,
237 A.D.2d 403 (2d Dept 1997) .........................................................................................17
Eastman v. Volpi Mfg. USA, Co.,
229 A.D.2d 913 (4th Dept 1996) ........................................................................................17
Fowler v. Vineyard,
261 Ga. 454 (1991)..............................................................................................................11
HSBC Bank USA, N.A. v. Wm. V. Schmidt Co.,
No. 102914/2010, 2011 N.Y. Misc. LEXIS 2721 (N.Y. Cty. May 24, 2011)..........................9
iv
James v. Aircraft Serv. Intl Grp.,
84 A.D.3d 1026 (2d Dept 2011) ...........................................................................................8
Jimenez v. N.Y. Cent. Mut. Fire Ins. Co.,
71 A.D.3d 637 (2d Dept 2010) .............................................................................................9
Korff v. Corbett,
18 A.D.3d 248 (1st Dept 2005) .............................................................................. 19, 22, 23
Loder v. Nied,
89 A.D.3d 1197 (3d Dept 2011) ...........................................................................................9
Luna v. Dobson,
97 N.Y.2d 178 (2001)..........................................................................................................10
Matter of New York City Asbestos Litig.,
41 A.D.3d 299 (1st Dept 2007) ..........................................................................................19
Roberts v. Hill,
81 Ga. App. 185 (Ga. Ct. App. 1950) ..................................................................................11
Stone v. Contl Ins. Co.,
234 A.D.2d 282 (2d Dept 1996) .........................................................................................17
Suffolk Cnty. Water Auth. v. Vill. of Greenport,
21 A.D.3d 947 (2d Dept 2005) ...........................................................................................20
Terry v. State Farm Fire & Cas. Ins. Co.,
269 Ga. 777 (1998)........................................................................................................ 13, 14
Two Guys from Harrison-N.Y. v. S.F.R. Realty Assn.,
63 N.Y.2d 396 (1984)..........................................................................................................18
Udoh v. Inwood Gardens, Inc.,
70 A.D.3d 563 (1st Dept 2010) ..........................................................................................17
Venables v. Sagona,
46 A.D.3d 672 (2d Dept 2007) ..................................................................................... 12, 17
Weiner v. Anesthesia Assocs. of W. Suffolk, P.C.,
203 A.D.2d 454 (2d Dept 1994) ............................................................................. 19, 22, 23
Yanuck v. Simon Paston & Sons Agency,
209 A.D.2d 207 (1st Dept 1994).........................................................................................18
STATUTES
CPLR 3212 and 3001.............................................................................................................. 1, 2
v
CPLR 3212 (b)..........................................................................................................................17
CPLR 3212 (f) ............................................................................................................................8
O.C.G.A. 9-12-40............................................................................................................. 10, 11
OTHER AUTHORITIES
Rule 19-a(b) ............................................................................................................................ 1, 4
Defendants (Yucaipa or Defendants), by their attorneys, Kasowitz, Benson, Torres &
Friedman LLP, respectfully submit this brief in opposition to the CPLR 3212 and 3001 Motion
of plaintiffs Black Diamond and Spectrum for summary judgment, dated August 27, 2012 (the
Motion or Pl. Br.). The facts upon which this memorandum are based are set forth in (i)
Defendants Rule 19-a(b) Response to Plaintiffs Statement of Purportedly Undisputed Facts
(19-a(b)); (ii) the Affirmation of Adam K. Grant, Esq., dated September 25, 2012 (Grant Opp.
Aff.); and (iii) the Affidavit of Derex Walker, dated September 25, 2012 (the Walker Aff.),
each of which is submitted herewith.
PRELIMINARY STATEMENT
No discovery has yet been taken in this case. Plaintiffs Motion is thus premature at best.
The Motion also misstates the issues before this Court, and cannot be granted because there are
fundamental, disputed issues of material fact precluding the grant of summary judgment in
Plaintiffs favor. Though the Motion was evidently filed now in an attempt to increase Plaintiffs
negotiating leverage in the bankruptcy proceeding Plaintiffs instigated against the borrower
Allied, this Court need not delve deeply in Plaintiffs tactical motivations. Plaintiffs cannot meet
their burden on summary judgment, and the Motion must be denied, because: (i) discovery is
necessary on Defendants potentially dispositive affirmative defenses, (ii) Plaintiffs
interpretation of the Credit Agreements requirements is contrary to its text, and (iii) under any
reading of the Credit Agreement, Plaintiffs are not entitled to the relief they seek.
When this Court denied Defendants Motion to Dismiss on res judicata grounds, the
Court expressly anticipated the need for discovery on that defense, stating, Im not saying
[Defendants] dont have a defense here, and informing the parties that a preliminary conference
to discuss discovery would follow service of the answer. (19-a(b), 5). Rather than await this
Courts scheduling of the preliminary conference and the conduct of discovery pursuant to a PC
2
Order, Plaintiffs filed this premature Motion. Discovery is necessary to resolve, among other
things, whether this action is barred by res judicata given Plaintiffs contradictory statements
concerning their relationship to CIT and their relationship to the Georgia Action. As the Georgia
Action presented an identity of issues to the instant action and was resolved by dismissals with
prejudice having the preclusive effect of a final judgment by a Court of competent jurisdiction
and Plaintiffs do not contend otherwise the only remaining question is whether, and to what
extent, Plaintiffs were privy to the resolution of the Georgia Action.
When it suited Plaintiffs interests to highlight the identical nature of this action to the
Georgia Action, Plaintiffs admitted, among other things, that CIT was their agent in the Georgia
Action, while CIT was defending the Georgia action, and thereby complying with its fiduciary
duties as Agent to Plaintiffs . . . . (Id., 63) (emphasis supplied). But, when it became clear
that such statements may bar the instant action under res judicata principles, Plaintiffs shifted
gears, [i]f a representative relationship did exist between Plaintiffs and CIT in connection with
the Georgia Action. . . . (Grant Aff., Exh. C at 19) and now deny the very agency they
previously admitted under oath in this case. Accordingly, discovery is necessary to resolve the
nature and extent of this agency relationship. Discovery also is necessary on several of
Defendants other potentially dispositive affirmative defenses to determine whether Plaintiffs
acquiescence to the passage of the Third Amendment without their consent bars their contention
that the Fourth Amendment required their consent.
Putting aside that Plaintiffs Motion is fundamentally premature, and could not be
considered until resolution of Defendants dispositive affirmative defenses, the core premise of
Plaintiffs Motion, based on the text of multiple portions of the Credit Agreement, is
fundamentally wrong; Plaintiffs reading simply is not countenanced by the Agreements
3
language, meaning and structure. Contrary to Plaintiffs contention, amending the definition of
Term Loan Exposure (TLE) did not require unanimous Lender consent.
First, the Credit Agreement expressly lists only two defined terms the amendment of
which required unanimous Lender consent: Requisite Lenders and Pro Rata Share. Thus,
amending the definition of TLE did not require unanimous Lender consent.
Second, contrary to Plaintiffs contention, the Fourth Amendments change to the
definition of TLE did not have the effect of amending the definition of Requisite Lenders.
Reading the Credit Agreement as Plaintiffs contend: (a) renders a key portion of the Credit
Agreement superfluous, which is not permitted under New York law, and (b) makes the Credit
Agreement an unusable morass because, contrary to the Credit Agreements plain language,
unanimous Lender consent then would be required for changes to any one of 33 terms, when the
Credit Agreement expressly provides that such consent is only required for a change to 2 terms.
Additionally, because the change to TLE in the Fourth Amendment concerned the voting rights
of a Sponsor who acquired a certain amount of first lien debt, the change to TLE did not affect
the definition of Requisite Lenders because the definition of Requisite Lenders does not concern
Lender voting rights (the definition instead limits itself to a strict mathematical calculation of the
amounts of certain types of debt held by each Lender). Thus, while the change to TLE in the
Fourth Amendment may have permitted a change in the identity of the Requisite Lender, it did
not contrary to Plaintiffs argument change the definition of the term.
Third, contrary to Plaintiffs contention, nothing in the Credit Agreement evidences that
the intent of the Credit Agreement was to bar Yucaipa from ever becoming Requisite Lender.
Were that the case, the Credit Agreement would explicitly have stated as much or would require
unanimous Lender consent to amend the definition of Eligible Assignee (i.e., the term controlling
4
what parties are, and are not, permitted to acquire Allieds debt). But it does not do so.
Additionally, if unanimous Lender consent were required for the Fourth Amendment to
remove certain language from the definition of TLE then, logically, unanimous Lender consent
also must have been required to add that very same language in the Third Amendment. As the
Third Amendment was passed with less than unanimous consent, Plaintiffs argument would
necessitate the severance of the offending TLE language from the Third Amendment, pursuant
to the Third Amendments severability clause. The effect of such severance would, despite
Plaintiffs effort, permit Yucaipa to be the Requisite Lender. Thus, adopting Plaintiffs strained
reading of the Agreement would require denial of their Motion in any event.
Finally, even assuming, arguendo, Plaintiffs incorrect reading of the Credit Agreement,
they are not entitled to the declaration they request that the Fourth Amendment [is] null and
void, ineffective, and not binding and that Yucaipa is not Requisite Lender[]. Given the
severability clause in the Fourth Amendment, Plaintiffs would at most be entitled to a
declaration that the change to the definition of TLE in the Fourth Amendment be severed
therefrom (leaving the rest of the Fourth Amendment valid and enforceable).
STATEMENT OF FACTS
1
Plaintiffs Motion centers on the question of whether an amendment to one defined term
in the Fourth Amendment to the Credit Agreement (the Agreement) required Plaintiffs
consent. To understand why the change to the definition of the term TLE in the Fourth
Amendment did not require unanimous consent, the Court should understand the context in
which the Third Amendment and Fourth Amendment were passed, and Plaintiffs conduct in
connection with the Agreement and the Georgia Action.
1
A full recitation of the facts, including the many disputed issues of material fact, is set forth in Defendants
Rule 19-a(b) Response to Plaintiffs Statement of Purportedly Undisputed Facts, submitted herewith.
5
I. The Credit Agreements Original Terms Did Not Allow A Sponsor To Also Be A
Lender
As the Sponsor, Yucaipa was precluded from acquiring any of Allieds first-lien debt
because the definition of Eligible Assignee which defined what entities could and could not
acquire Allieds first-lien debt specifically stated that no . . . Sponsor shall be an Eligible
Assignee. (19-a(b), 14). This is significant because, contrary to the thesis of Plaintiffs
Motion, it is the subsequent amendments to the term Eligible Assignee not TLE that
permitted Yucaipa to become the Requisite Lender.
II. The Third Amendment Gave Sponsor Yucaipa The Right To Become A Lender
On April 17, 2008, the Third Amendment passed by the vote of the Requisite Lenders but
without Plaintiffs consent. (Id., 22, 23). In relevant part, the Third Amendment modified the
definition of Eligible Assignee to permit Yucaipa to acquire a part of Allieds first-lien debt.
(Id., 24). The Third Amendment also modified the definition of TLE such that Term Loans
acquired by Yucaipa would be disregarded with respect to provisions of the Agreement relating
to the voting rights of Lenders. (Id., 26, 27). In sum, the Third Amendment permitted
Yucaipa to become a Lender but, because it limited the amount of debt Yucaipa could acquire,
the Third Amendment limited Yucaipas ability to become the Requisite Lender based solely on
its own holdings. (Id., 28). Section 10.5(b) of the Agreement lists eleven circumstances for
which unanimous Lender consent is required to amend or modify the Agreement. But Section
10.5(b) references only two terms whose amendment would trigger the Agreements unanimous
Lender requirement: Requisite Lenders and Pro Rata Share. (Id., 17-19). And because
the Third Amendment changed neither of those terms, although it did amend the definition of
TLE, the Third Amendment was passed pursuant to Section 10.5(a) of the Agreement with
Requisite Lender consent (i.e., essentially the majority of the first-lien lenders). (Id., 25, 29).
6
Importantly, Plaintiffs never have asserted that the Third Amendments change to the
definition of TLE required their consent. (Id., 25, 29).
III. Plaintiffs Were Aware Of, And Did Not Protest, Yucaipas Efforts To Become
Requisite Lender
In December 2008, Lenders holding the majority of Allieds first-lien debt sought to exit
their positions by selling them to Yucaipa, but Yucaipa made clear it would not buy their
positions unless the Third Amendment was modified to allow Yucaipa to become the Requisite
Lender on its own. (Id., 33). To that end, in February 2009, Yucaipa launched a tender offer
(the Tender Offer) that included Allieds proposed fourth amendment (the Proposed Fourth
Amendment) to all Lenders, including Plaintiffs. (Id., 34, 35). That Proposed Fourth
Amendment proposed amending the Third Amendments terms by eliminating any limits on the
amount of Term Loans and LC Deposits Yucaipa could purchase, permitting Yucaipa to
acquire a majority of Allieds first-lien debt, and permitting Yucaipa to become the sole
Requisite Lender. (Id.). Plaintiffs never voiced any objection to such an amendment. (Id., 37).
Between February 2009 and August 21, 2009, Plaintiffs knew that Yucaipa was negotiating to
acquire first-lien debt over and above the amounts that were permitted by the Third Amendment.
Plaintiffs also never voiced any objection to Yucaipas efforts in that regard. In fact, Plaintiffs
actively were involved in discussions that assumed Yucaipa would acquire first-lien debt in
excess of the amounts permitted by the Third Amendment. (Id., 38-39).
IV. The Fourth Amendment Allowed Yucaipa To Become Requisite Lender
On August 21, 2009, ComVest, as Requisite Lender, and Allied agreed to amend the
Agreement by enacting the Fourth Amendment. (Id., 40). Plaintiffs were aware of the
proposed terms of the Fourth Amendment and, again, stated no objection to its terms. (Id.,
54-55). In relevant part, the Fourth Amendment removed the Third Amendments restrictions on
7
the amount of first-lien debt Yucaipa could acquire thereby allowing Yucaipa to acquire
sufficient first-lien debt to become the Requisite Lender as well as the language concerning
TLE which was added by the Third Amendment. (Id., 43, 44, 48). In reliance upon the
enactment of the Fourth Amendment, Yucaipa acquired the majority of Allieds first-lien debt
and became Requisite Lender. (Id., 51-52). Like the Third Amendment, the Fourth
Amendment did not require Plaintiffs consent because the Fourth Amendments terms did not
trigger the unanimous Lender consent provisions of Section 10.5(b), and did not change the
definition of either Requisite Lender or Pro Rata Share. (Id., 47).
V. The Georgia Action Was Litigated By Plaintiffs Admitted Agent, CIT
Though Plaintiffs were aware of Yucaipas plan to become Requisite Lender and the
basic terms of the Fourth Amendment well in advance of its passage, Plaintiffs did not object to
it until a month after it passed. (Id., 56). At that point, Plaintiffs sent a letter to the
Administrative Agent, CIT, requesting that CIT not recognize the validity of the Fourth
Amendment. (Id.). Based in part on Plaintiffs letter, CIT refused to recognize Yucaipa as the
Requisite Lender, forcing Allied and Yucaipa to bring suit in Georgia state court to have the
Fourth Amendment declared valid (the Georgia Action). (Id., 57). CIT counterclaimed both
in its capacity as Administrative Agent and as a Lender, and, expressly in its Agent capacity
sought a declaration that the Fourth Amendment was invalid. (Id., 58).
Following two years of litigation during which Plaintiffs responded to Yucaipas
discovery requests and Black Diamonds representative was deposed and following months of
settlement negotiations of which Plaintiffs were aware, Yucaipa, Allied and CIT agreed to
dismiss the Georgia Action, with prejudice, and resolve their claims. (Id., 59, 60, 64). They
entered into a settlement agreement (Settlement Agreement) that, among other things,
expressly required all parties to dismiss with prejudice all their claims including all of those
8
contained in the counterclaims CIT brought as Agent. (Id., 64). Plaintiffs received a copy of
the Settlement Agreement and, two days later, the Georgia Action was dismissed pursuant to
mutual dismissals with prejudice (Dismissals with Prejudice), entered into by CIT as
Defendant and Counterclaim-Plaintiff and stating that CIT hereby dismiss[es] with prejudice
the Verified Answer and Counterclaims and all claims it asserted in its Verified Answer and
Counterclaims. (Id., 64, 66, 68).
VI. Plaintiffs Fail To Challenge The Georgia Dismissal, And Instead File This Lawsuit
Plaintiffs neither intervened in the Georgia Action nor did they object to the Settlement
Agreement or the Dismissals with Prejudice in any court. Instead, one month following the
filing of the Dismissals with Prejudice, Plaintiffs brought this action seeking precisely the same
relief their agent, CIT, had sought as Administrative Agent, and then dismissed with prejudice in
the Georgia Action.
ARGUMENT
I. With No Discovery Yet Taken, Including On Defendants Potentially Dispositive
Affirmative Defenses, The Motion Is Premature And Must Be Denied
Under CPLR 3212 (f), [a] party opposing summary judgment is entitled to obtain further
discovery when it appears that facts supporting the opposing partys position may exist but
cannot then be stated, especially where the opposing party has not had a reasonable
opportunity for disclosure prior to the making of the motion. James v. Aircraft Serv. Intl Grp.,
84 A.D.3d 1026, 1027 (2d Dept 2011) (affirming denial of summary judgment where appellant
moved for summary judgment prior to any discovery being conducted). As Defendants have not
yet been able to take discovery on their affirmative defenses, Plaintiffs Motion must be denied
for this reason alone. In accordance with CPLR 3212 (f), the factual discovery that Defendants
require and plan to take is set forth in the accompanying Affidavit of Adam K. Grant at
9
paragraphs 8 through 10. New York courts routinely deny motions for summary judgment as
premature where as here there has been no discovery, and material facts are unavailable to
the nonmoving party. See Loder v. Nied, 89 A.D.3d 1197, 1201 (3d Dept 2011) (upholding
denial of summary judgment where material facts unavailable to plaintiff as there had been no
discovery); Amico v. Melville Volunteer Fire Co., 39 A.D.3d 784, 785 (2d Dept 2007)
(reversing grant of summary judgment as premature as plaintiff did not have opportunity to
conduct discovery); Baseball Office of the Commr v. Marsh & McLennan, Inc., 295 A.D.2d 73,
82 (1st Dept 2002). Summary judgment should likewise be denied where defendant has not yet
conducted discovery on its affirmative defenses. See Jimenez v. N.Y. Cent. Mut. Fire Ins. Co.,
71 A.D.3d 637, 640 (2d Dept 2010) (finding summary judgment premature because defendant
entitled to raise affirmative defenses and conduct discovery); HSBC Bank USA, N.A. v. Wm. V.
Schmidt Co., No. 102914/2010, 2011 N.Y. Misc. LEXIS 2721 at *10-11 (N.Y. Cty. May 24,
2011) (finding summary judgment premature because defendants raised affirmative defenses and
are entitled to discovery).
A. As This Court Previously Determined, Discovery is Necessary on
Defendants Res Judicata Defense
Defendants are entitled to discovery relating to their affirmative defense that the Motion
indeed, this whole case is barred by res judicata. Defendants moved to dismiss this action on
res judicata grounds and, at the May 30 Hearing, this Court determined there were fact questions
regarding whether CIT acted as Plaintiffs agent in settling the Georgia Action with prejudice,
expressly stated that although it was denying the Defendants motion, it was not saying
[Defendants] dont have a defense here, and informed the parties it would be scheduling a
preliminary conference to discuss discovery following service of the answer to the Complaint.
(19-a(b), 5). Yet before this Court has even had the opportunity to schedule a preliminary
10
conference, Plaintiffs filed this Motion.
Under Georgia law,
2
which Plaintiffs concede applies, [a] judgment of a court of
competent jurisdiction shall be conclusive between the same parties and their privies as to all
matters put in issue . . . in the cause wherein the judgment was rendered until the judgment is
reversed or set aside. O.C.G.A. 9-12-40. The doctrine of res judicata prevents the re-
litigation of all claims that have already been adjudicated . . . between identical parties or their
privies in identical causes of action. Brown & Williamson Tobacco Corp. v. Gault, 280 Ga.
420, 421 (2006). Briefing on Defendants Motion to Dismiss established that all but one of the
necessary elements for a res judicata defense already have been established here. (See 19-a(b),
3). Plaintiffs opposition to the Motion to Dismiss neither contested that the Dismissals with
Prejudice in the Georgia Action constituted a judgment by a court of competent jurisdiction,
3
nor
contested that the Complaint seeks to re-litigate the very same claims that were put in issue in
the Georgia Action.
4
Plaintiffs dispute only that they were privies of CIT and thus bound by CITs dismissal
with prejudice of its claims in the Georgia Action. However, Plaintiffs repeatedly have admitted
in this action that CIT acted as their agent in litigating the Georgia Action. (See id., 63).
Given Plaintiffs admissions here, and their conduct in the Georgia Action, and given this
Courts ruling on the Motion to Dismiss that discovery is necessary to resolve the agency issue,
there exist genuine issues of material fact concerning the extent of Plaintiffs agency relationship
with CIT requiring denial of this Motion, discovery on that issue, and determination of the
2
The Full Faith and Credit Clause of the U.S. Constitution compels this Court to analyze Defendants res
judicata defense under Georgia law, as the courts of this state are required to give the same preclusive effect to the
[out-of-state] judgment that [the out-of-state court] would under its law. Luna v. Dobson, 97 N.Y.2d 178, 183
(2001) (analyzing Connecticut law in determining the enforceability of Connecticut judgment in New York court).
3
(19-a(b), 3).
4
(19-a(b), 3).
11
potentially dispositive affirmative defense.
Now, in a transparent effort to put the cart before the horse, and litigate an issue the
Court may never need reach, Plaintiffs ask this Court to ignore the fact discovery it previously
ordered and which may demonstrate that this action is barred by res judicata. Because Plaintiffs
have not moved for, and cannot yet move for, summary judgment on Defendants res judicata
defense, Plaintiffs cannot carry their burden of showing an entitlement to summary judgment as
a matter of law on the res judicata defense. The Motion must be denied on this basis alone.
i. Discovery is Necessary Concerning the Agency Issue
Under Georgia law, a party and its privies are subject to the doctrine of res judicata where
they had a full and fair opportunity to argue their claims in the prior litigation. Brown &
Williamson Tobacco Corp., 280 Ga. at 421; Fowler v. Vineyard, 261 Ga. 454, 456 (1991);
O.C.G.A. 9-12-40. Georgia law provides that privies are all persons represented by the
parties. Roberts v. Hill, 81 Ga. App. 185, 186 (Ga. Ct. App. 1950); see also College Park Land
Co. v. Mayor of College Park, 48 Ga. App. 528, 528 (Ga. Ct. App. 1934) ([A] party . . . [is] in
privity with a party to the former litigation when he bears the relationship of . . . a principal to an
agent or agent to a principal . . . .). Given the factual record to date, Plaintiffs relationship to
the Georgia Action and their relationship to CIT prior to and throughout the Georgia action
must be the subject of discovery.
The pleadings in the Georgia Action establish that CIT was being sued, and brought suit,
in both its representative and individual capacities. Yucaipa and Allied expressly asserted
certain claims against CIT in its capacity as Administrative Agent in the Georgia Complaint. (19-
a(b), 57; see also Ehrlich Aff., Exh. 2, 1 (This action arises from CITs inexcusable breaches
of several of its clear and unambiguous contractual obligations as Administrative Agent . . .)).
In addition, CITs Counterclaim in the Georgia Action states that it was brought by CIT in both
12
its individual capacity as a Lender and its representative capacity as Administrative Agent. (19-
a(b), 58; see, e.g., Grant Aff., Exh. K, 42 (CIT has not breached its obligations as
Administrative Agent and Collateral Agent under the Credit Agreement.). Furthermore, Black
Diamonds Principal Richard Ehrlich submitted an affidavit in this case admitting CITs role
as Plaintiffs agent throughout the Georgia Action.
5
Plaintiffs counsel further confirmed the
agency in open court.
6
Finally, Defendants understood and believed that CIT was litigating as
agent for all Lenders, and on its own behalf, throughout the Georgia Action. (19-a(b), 62).
In response to this evidence, first marshaled by Defendants on their Motion to Dismiss,
Plaintiffs argued that any agency relationship with CIT was vitiated when CIT filed the
Dismissals with Prejudice. (See Grant Aff., Exh. C at 19 (If a representative relationship did
exist between Plaintiffs and CIT in connection with the Georgia Action, it certainly did not
survive the negotiation and execution of the Settlement Agreement.)); (19-a(b), 63) (CIT. . . .
was the agent which was handling the defense of this case, in effect, for us settled [the Georgia
Action] on their own stead.) (emphasis supplied). Given the contradictions and discrepancies
between Plaintiffs admissions and their subsequently changed position that CIT was not their
agent, this Court determined that discovery is necessary. Such discovery will necessarily cover
the extent of the agency relationship between Plaintiffs and CIT during the Georgia Action,
whether that agency ever terminated, and if so, when. See Venables v. Sagona, 46 A.D.3d 672,
673 (2d Dept 2007).
5
Ehrlichs affidavit concedes: While CIT was defending the Georgia action, and thereby complying with its
fiduciary duties as Agent to Plaintiffs here . . . Plaintiffs were not compelled to challenge the Purported Fourth
Amendment (19-a(b), 63; Grant Aff., Exh. L, 12 (emphasis supplied)) and Plaintiffs commenced the New
York Action because of CIT's failure to continue to protect the interests of Plaintiffs and the other Allied Lenders,
and its concession in the settlement agreement of the Georgia Action that the Purported Fourth Amendment is
valid. (Id.) (emphasis supplied).
6
CIT was the agent which was handling the defense of [the Georgia Action] . . . (id.); and CIT . . . was
the agent which was handling the defense of this case, in effect, for us . . . (id.) (emphasis supplied).
13
In addition, if Plaintiffs genuinely believed that CIT settled the Georgia Action in
violation of its agency relationship with Plaintiffs, Georgia law required that Plaintiffs either
appear[] in the [Georgia Action] before rendition of the judgment or . . . attack[] the judgment
by subsequent proceedings. Restat. 2d of Judgments, 41, Comment a. Plaintiffs did neither,
failing to intervene in the Georgia Action, or attack the judgment directly in a subsequent
proceeding in Georgia. Discovery also is therefore appropriate on what Plaintiffs knew, and
when they knew it, as regards the litigation, the settlement negotiations, the settlement, and the
Dismissals with Prejudice.
ii. This Court Also Has Determined That There Are Fact Questions
Whether The Georgia Settlement Agreement Is Binding On Plaintiffs,
And Thus Bars This Action On Res Judicata Grounds
In denying Defendants Motion to Dismiss, this Court already ruled there are fact
questions on the agency issue requiring discovery before the Court can decide if the case is
barred by res judicata. Ignoring that ruling, we expect Plaintiffs to argue in reply as they did in
opposing the Motion to Dismiss that the Settlement Agreement establishes that the Georgia
Action was resolved by CIT solely in its individual capacity. (Grant Aff., Exh. C at 18-20; id.,
Exh. D at 25:21-28:8). Yet, this Court has already found there to be a fact issue regarding
whether the Settlement Agreement was binding on Plaintiffs, which, if so, would bar this action
on res judicata grounds.
First, Plaintiffs previously have argued and likely will continue to argue that
paragraph 1(d) of the Settlement Agreement establishes that CIT only resolved the Georgia
Action in its Lender capacity. Contrary to Plaintiffs claims, Georgia law holds that Plaintiffs
are not entitled to look past the unambiguous Dismissals with Prejudice to the Settlement
Agreement. It is the dismissals themselves that serve as a preclusive judgment where the scope
of the dismissed claims is unambiguous. Terry v. State Farm Fire & Cas. Ins. Co., 269 Ga. 777,
14
778-79 (1998) (holding that since the language of the consent dismissal was clear and
unambiguous, the terms of the dismissal are controlling for claim preclusion purposes, and the
court should look no further to determine the intention of the parties).
7
Second, CITs
Counterclaim expressly was brought in both its individual and representative capacities (19-a(b),
58). Plaintiffs repeatedly have admitted and Defendants understood that CIT was litigating
the Georgia Action at least in part in its representative capacity as Plaintiffs agent, and
Defendants intended that CIT was executing the Settlement Agreement and entering into the
Dismissals with Prejudice as both a Lender and as the Administrative Agent. (Id., 62, 63, 67).
Third, paragraph 2 of the Settlement Agreement required each of CIT, Yucaipa and
Allied to dismiss their respective claims in the [Georgia] Action with prejudice . . . . (Id., 68)
(emphasis supplied). Thereafter, in the Dismissals with Prejudice, CIT as the Defendant and
Counterclaim Plaintiff. . . dismiss[ed] with prejudice the Verified Answer and Counterclaims and
all claims it asserted in its Verified Answer and Counterclaims. (Id., 66) (emphasis supplied).
Accordingly, the Settlement Agreement, on its face, called for CITs dismissal, with prejudice, of
all its claims including the entire declaratory judgment claim CIT brought in its representative
capacity. (Id., 64, 68).
Furthermore, the Settlement Agreement on its face demonstrates that CIT settled the case
at least in part in its representative capacity as Defendants agent. While it is true that Section
1(d) states, among other things, that the parties to the Settlement Agreement do not release any
7
Plaintiffs contended in their opposition to the motion to dismiss, and likely will restate in their reply, that
Brown & Williamson Tobacco Corp. v. Gault, 280 Ga. 420 (2006), City of Centerville v. City of Warner Robins,
270 Ga. 183 (1998) and City of Demorest v. Roberts & Dunahoo Props., L.L.C., 288 Ga. App. 708 (Ga. Ct. App.
2008) state that a court should always look past the document filed with the Court in this case the Dismissals with
Prejudice to the settlement agreement to determine the parties intent. (Grant Aff., Exh. C at 14-15). As before,
Plaintiffs reliance on these cases is simply wrong, as they are clearly distinguishable from the facts in this case. At
best, those cases stand for the proposition that a Georgia court analyzing ambiguous consent judgments will look to
the terms of a settlement agreement to divine the parties intent. There is no such ambiguity in the Dismissals with
Prejudice here, nor can Plaintiffs allege any such ambiguity. (Grant Aff., Exh. B at 3-4).
15
claims belonging to any person or entity other than the Parties to this Agreement, this language
does not mean that CIT was resolving the Georgia Action solely as a Lender. Defendants
understood and intended that the sole and exclusive purposes of this language were to (a)
preserve claims third parties might have unrelated to the validity of the Fourth Amendment or
Yucaipas Requisite Lender status, (b) ensure Allied was not inadvertently released from its
obligations under the Credit Documents, and (c) preserve claims that Lenders may have had
against CIT for liability resulting from its actions or inactions as Agent. (Id., 69). But
Defendants never intended, and the Settlement Agreement does not state or otherwise evidence,
that Section 1(d) limited the scope of the Dismissals with Prejudice or otherwise limited CITs
capacity to enter the Settlement Agreement and the Dismissals with Prejudice in its
representative capacity. (Id.). In point of fact, the Settlement Agreement includes a number of
settlement obligations CIT could only have undertaken in its representative capacity, because
they expressly involved the exercise of its agency powers as defined in the credit documents,
such as the recordation of loans, procedures for its potential resignation as agent, and similar
types of duties.
8
Accordingly, as the Court previously ruled in denying the Motion to Dismiss, discovery
is needed on these issues. Plaintiffs certainly cannot now demonstrate the absence of material
8
Several provisions of the Settlement Agreement specifically were intended to apply to CIT in its
representative capacity. For example, paragraph 10 of the Settlement Agreement clearly contemplated CIT acting in
its representative capacity, as it states CIT acknowledges that it recorded [Defendants] first lien loans on the
Register (as defined in the Credit Agreement) and expressly recognizes the validity and enforceability of the Fourth
Amendment. (19-a(b), 65). The Agreement requires the Administrative Agent to record each loan on the
Register. (Id., 21). Defendants intended that many other Settlement Agreement provisions would apply to CIT in
its representative capacity. (See id., 65; see, e.g., Grant Aff., Exh. I, 13 (concerning circumstances under which
CIT may resign as Administrative Agent and Collateral Agent and CITs agreement not to exercise any remedies as
Administrative and Collateral Agent before it resigns without Defendants written consent as Requisite Lender);
Grant Aff., Exh. 1, 7 (CIT in its capacity as agent or otherwise agrees to support any Restructuring [of Allied] to
which [Defendants] consent[] under certain enumerated conditions); id., 11 (concerning CITs resolution of
administrative issues in its representative capacity as Administrative and Collateral Agent); id., 14 (concerning
CITs consent rights over the appointment of a replacement Administrative Agent and Collateral Agent)).
16
issues of fact on the agency issues nor the right to prevail as a matter of law on Defendants res
judicata defense.
B. Discovery is Also Necessary on Defendants Potentially Dispositive Waiver and
Estoppel Defenses
In addition, before Plaintiffs summary judgment Motion can be considered, Defendants
are entitled to conduct discovery on their other, potentially dispositive, affirmative defenses
based on waiver and estoppel. Defendants fourth and fifth Affirmative Defenses in their Answer
assert that Plaintiffs claims are barred by waiver and/or estoppel. (Ehrlich SJ Aff., Exh. 4).
Both the Third Amendment and the Fourth Amendment were passed without unanimous affected
Lender consent and, among other things, both modified the definition of TLE. In fact, the Fourth
Amendment simply removed the language concerning TLE which the Third Amendment added.
But Plaintiffs never objected to the Third Amendments passage or to the terms of the Fourth
Amendment prior to the Fourth Amendments passage, and have conceded that the Third
Amendment was validly enacted. (19-a(b), 23, 25, 29, 39). Following the Fourth
Amendments passage in reliance upon the validity of the Third and Fourth Amendments on
August 21, 2009, Yucaipa acquired all of its majority holdings of Allieds first-lien debt from
ComVest, pursuant to the Assignment and Assumption Agreement. (See id., 51).
Plaintiffs failure to object to the Third Amendment may: (i) estop them from arguing
that the Fourth Amendments modification to the definition of TLE required any greater consent
than the Third Amendments did;
9
and (ii) act as a waiver of the contention that the Fourth
9
Under New York law, the doctrine of equitable estoppel provides that [w]hen a party with full knowledge,
or with sufficient notice of his rights and of all the material facts, freely does what amounts to a recognition or
adoption of a contract or transaction as existing, or acts in a manner inconsistent with its repudiation, and so as to
affect or interfere with the relations and situation of the parties, he acquiesces in and assents to it and is equitably
estopped from impeaching it, although it was originally void or voidable. Bisbing v. Sterling Precision Corp., 34
A.D.2d 427, 430-31 (3d Dept 1970) (reversing the lower court and holding that defendants motion for summary
judgment should not have been granted as there are issues of fact as to plaintiffs equitable estoppel defense); 335
Second St. Hous. Corp. v. Fridal Enters., Inc., 36 A.D.3d 608, 609 (2d Dept 2007) (finding defendant equitably
17
Amendments modification to the definition of TLE required any greater consent than the Third
Amendments did.
10
Given that CIT the Administrative Agent and a Lender under the
Agreement expressly advised the First Lien Lenders that the Third Amendment required only
Requisite Lender approval, and not unanimous Lender consent (see id., 23), Defendants are
entitled to discovery to determine whether Plaintiffs understood and acquiesced in that advice
and the passage of the Amendment as well. See Venables, 46 A.D.3d at 673.
II. Plaintiffs Reading Of The Agreement Violates Fundamental Rules Of Contract
Construction; The Motion Must Be Denied Because Plaintiffs Cannot Show The
Absence Of Material Issues Of Fact Nor A Right To Judgment As A Matter Of Law
CPLR 3212 (b) requires the proponent of a motion for summary judgment to
demonstrate the absence of genuine issues of material fact on every relevant issue raised by the
pleadings, including any affirmative defenses. Stone v. Contl Ins. Co., 234 A.D.2d 282, 284
(2d Dept 1996). The failure to make such prima facie showing requires a denial of the
motion. Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063 (1993) (citation omitted). Here, even
before any discovery has been taken on the issues, Plaintiffs Motion must be denied because
Plaintiffs cannot establish that there are no genuine issues of material fact as to the construction
and meaning of the provisions of the Credit Agreement relevant to the instant Motion. See
Udoh v. Inwood Gardens, Inc., 70 A.D.3d 563, 565 (1st Dept 2010).
estopped from imposing higher interest rate where defendant acquiesced to plaintiffs payments at lower rate
without complaint or objection). Accordingly, discovery is necessary to determine whether, among other things,
Plaintiffs acquiesced in or ratified the passage of the Third Amendment. See Bisbing, 34 A.D.2d at 430-31.
10
In New York, the defense of waiver is available where there is a voluntary abandonment or relinquishment
of a known right, which, except for such waiver, the party would have enjoyed. Dice v. Inwood Hills Condo., 237
A.D.2d 403, 404 (2d Dept 1997). Waiver may be accomplished by express agreement or by such conduct or
failure to act as to evince an intent not to claim the purported advantage . . . . Id. (quotation omitted). To establish
that Plaintiffs have waived their right to challenge the validity of the change to the definition of TLE in the Fourth
Amendment, Defendants need discovery regarding whether, among other things, Plaintiffs acquiesced in the passage
of the Third Amendment. Such a question of fact on an affirmative defense precludes summary judgment. See
Eastman v. Volpi Mfg. USA, Co., 229 A.D.2d 913, 914 (4th Dept 1996).
18
A. Plaintiffs Construction Is Contrary To The Agreements Express Terms
Plaintiffs contend that the entire Fourth Amendment required unanimous consent of all
Lenders affected thereby. (Pl. Br. at 18). However, as set forth in the following sections, that is
clearly not the case, as under any reading of the Agreement, the Fourth Amendment contains
other changes that could not conceivably require unanimous consent. Accordingly, Plaintiffs
argument must be that the amendment to the term TLE in the Fourth Amendment required
unanimous consent. Plaintiffs contention in that regard is also contrary to the express terms of
the Agreement, and accordingly Plaintiffs position creates triable issue of fact precluding a grant
of summary judgment.
11
i. The Doctrine of Expressio Unius Demonstrates Plaintiffs Are Not
Entitled to Summary Judgment as a Matter of Law
Plaintiffs contend that an amendment to the term TLE constitutes an amendment
requiring unanimous Lender consent under Section 10.5(b). However, Section 10.5(b) of the
Agreement lists eleven separate enumerated circumstances in which written consent of each
Lender . . . that would be affected thereby is required. An amendment to the definition of TLE
is not one of those enumerated circumstances. (19-a(b), 17-19) (emphasis supplied). Under
New York law,
12
when a contract lists specific items that are covered by a provision, other items
that are not listed are deemed to have intentionally been excluded. See, e.g., Two Guys from
Harrison-N.Y. v. S.F.R. Realty Assn., 63 N.Y.2d 396, 403-04 (1984) (holding that the
11
Although the Fourth Amendments change to the definition of TLE clearly did not require unanimous
affected Lender consent, if the Court were willing to credit Plaintiffs assertion that it does, the Court would
logically be required to find that Section 10.5(b)(ix) is subject to competing, reasonable interpretations and is
therefore ambiguous and raise[s] triable issues of fact precluding summary judgment. Yanuck v. Simon Paston &
Sons Agency, 209 A.D.2d 207, 208 (1st Dept 1994) ([W]here . . . interpretation of contract terms or provisions are
susceptible to at least two reasonable interpretations, and intent must be gleaned from disputed evidence or from
inferences outside the written words, it becomes an issue of fact that must be resolved by trial.). Thus, under any
hypothesis, Plaintiffs cannot show entitlement to summary judgment as a matter of law on this issue, and the Motion
must be denied.
12
The Agreement is governed by New York law, pursuant to its choice of law provision. (See CA 10.14).
19
specification of certain permitted activities should be read as implicitly prohibiting other
alterations); see also 1009 Second Ave. Assocs. v. New York City Off-Track Betting Corp., 248
A.D.2d 106, 108 (1st Dept 1998); Matter of New York City Asbestos Litig., 41 A.D.3d 299, 302
(1st Dept 2007) (applying standard canon of contract construction expressio unius est exclusio
alterius, . . . that the expression of one thing implies the exclusion of the other).
Here, Section 10.5(b) states that an amendment to the terms Requisite Lenders or Pro
Rata Share are the only definitional amendments requiring unanimous Lender consent. The
Agreement does not state that an amendment to TLE requires unanimous affected Lender
consent. (19-a(b), 18-19). Accordingly, under the doctrine of expressio unius est exclusio
alterius, changes to the definition of TLE do not require unanimous affected Lender consent.
If the Court were nevertheless willing to accept Plaintiffs contention that their
construction is reasonable, then, at best, ambiguity exists and discovery is necessary to divine the
parties intent. Korff v. Corbett, 18 A.D.3d 248, 251 (1st Dept 2005) (To the extent that any of
[an] agreements terms may be ambiguous, indefinite or uncertain, it is well settled that extrinsic
or parol evidence is admissible to determine their meaning.); see also Weiner v. Anesthesia
Assocs. of W. Suffolk, P.C., 203 A.D.2d 454, 454-55 (2d Dept 1994) ([W]here . . . a court
determines that the terms of the agreement are ambiguous and the intent of the parties becomes a
matter of inquiry, parol evidence is permitted to determine that intent.).
13
13
Because this Motion was filed prematurely, this Court does not have before it evidence necessary to
determine the parties intent. Accordingly, Defendants need discovery from Plaintiffs, as well as the parties to the
Agreement, CIT and Allied. As noted, supra, if the Agreement is ambiguous, parol evidence is necessary to
determine the drafters intent and, since discovery has not taken place yet, Plaintiffs Motion should be denied. (See
Grant Aff. at 8-10 (describing categories of necessary discovery)).
20
ii. Changing the Definition of TLE Did Not Change the Definition of
Requisite Lender
Plaintiffs contend that a change to the definition of TLE a defined term referenced in
the definition of Requisite Lender effects a change to the definition of Requisite Lender
requiring unanimous Lender consent under Section 10.5(b). (Pl. Br. at 17-18). But the text of
Section 10.5(b)(ix) does not support this argument. The term Requisite Lenders contains four
defined embedded terms, including TLE. In turn, the definitions of those four embedded terms
refer to twelve additional defined embedded terms. (See 19-a(b), 19). And the definitions of
those twelve additional terms, themselves, include thirteen additional defined embedded terms.
(Id.). One of the terms embedded within the definition of Requisite Lenders through the
defined term LC Exposure is the term Pro Rata Share. (See id., 18). Significantly, Pro
Rata Share is the only other such definition listed in Section 10.5(b) the amendment of which
requires unanimous consent. If Plaintiffs embedding argument were correct, however, Pro
Rata Share would not need to be listed in Section 10.5(b) as one of the terms requiring
unanimous Lender consent to modify, because any amendment to that term would automatically
have the effect of amending the definition of Requisite Lenders.
Plaintiffs argument would therefore render the inclusion of Pro Rata Share in 10.5(b)(ix)
superfluous. However, under New York law, such a contract provision is presumed to have been
inserted intentionally and with purpose; that term cannot properly be ignored or read out of
existence. Suffolk Cnty. Water Auth. v. Vill. of Greenport, 21 A.D.3d 947, 948 (2d Dept 2005)
(an interpretation which renders language in the contract superfluous is unsupportable).
14
Accordingly, Plaintiffs embedding argument must be rejected as a matter of law.
14
Additionally, Plaintiffs argument fails as a matter of contract interpretation, because to interpret changes to
embedded terms as changes to the definition in which they are embedded would effectively render the agreement a
circular maze with a change to any one of 33 separate terms having the effect of amending the definition of
Requisite Lender an absurd conclusion.
21
iii. Plaintiffs Cannot Show the Change to the Definition of TLE In the
Fourth Amendment Changed the Definition of Requisite Lender
Plaintiffs argue that the Fourth Amendments change to the definition of TLE had the
effect of changing the definition of Requisite Lender by allowing the Yucaipa-owned
Obligations to be included in the calculation of Term Loan Exposure when, under the Third
Amendment, they had previously been expressly excluded. (Pl. Br. at 6) (emphasis in original).
This is incorrect. The Third Amendments definition of TLE only requires that Defendants
aggregate outstanding principal amount of Term Loans be disregarded with respect to any
provisions of [the Agreement] relating to the voting rights of Lenders. (19-a(b), 26-27)
(emphasis supplied). The definition of Requisite Lenders is only an arithmetic calculation,
referring to the Lender or Lenders holding more than 50% of the sum of the aggregate TLE, LC
Exposure and Revolving Exposure of all Lenders. (Id., 13). The definition of Requisite
Lenders refers to a quantity of ownership, but nowhere refers to issues of voting rights, and
hence the change in the definition of TLE does not affect the definition of Requisite Lenders.
(Id., 28). Indeed, the Third Amendment expressly permits Defendants to own a limited amount
of Allieds first-lien debt. (Id., 24). Thus, even though other provisions of the Third
Amendment limited the amount of Allied debt Defendants could hold, Defendants would be able
to pair with another Lender to be joint Requisite Lenders. (Id., 28). Accordingly, under the
Third Amendment, the Allied debt held by Defendants would absolutely count toward the
determination of Requisite Lender status, and, despite Plaintiffs contentions, Defendants are not
precluded from becoming Requisite Lenders. (Id., 26-28).
Furthermore, the Fourth Amendment did not change or affect the definition of
Requisite Lenders. Section 1.1 of the Agreement provides: Requisite Lenders means one
or more Lenders having or holding Term Loan Exposure, LC Exposure and/or Revolving
22
Exposure and representing more than 50% of the sum of (i) the aggregate Term Loan Exposure
of all Lenders, (ii) the aggregate LC Exposure of all Lenders and (iii) the aggregate Revolving
Exposure of all Lenders. (Id., 13). Changing the definition of TLE did not change or affect
the definition of the term Requisite Lender. At most, it affected the identity of who could be
Requisite Lender. Thus, there was no change to the definition of the term, but rather a change to
the universe of those who could become Requisite Lender. Once again, Plaintiffs have twisted
the text of the Agreement to contradict its express terms. To the extent the Court nevertheless
credits their alternate reading, at best there is ambiguity requiring discovery as to the relevant
parties intent. Korff, 18 A.D.3d at 251; see also Weiner, 203 A.D.2d at 454-55.
iv. The Intent of the Credit Agreement Was Never to Prevent Yucaipa From
Becoming Requisite Lender
Plaintiffs also argue that the intent of the Agreement was to preclude Defendants from
exercising any Lender voting rights, let alone act[ing] as the Requisite Lender. (Pl. Br. at 22)
(emphasis in original). Given that Plaintiffs were not involved, and had no input whatsoever in
drafting the Agreement, their characterization of the Agreements intent has no weight. (19-a(b),
10). In any event, the Agreement says nothing of the sort.
Under the Agreement, the operative term that initially precluded Defendants from
becoming a Lender or accumulating sufficient first-lien debt to become Requisite Lender is
the definition of Eligible Assignee. (Id., 14). The definition of Eligible Assignee designated
what entities would be permitted to acquire Allieds first-lien debt and provided, in relevant part,
no . . . Sponsor shall be an Eligible Assignee. (Id.). Had the intent of the parties been as
Plaintiffs contend irrevocably to prevent the Sponsor from becoming the Requisite Lender
logically Section 10.5(b)(ix) would have been drafted to expressly include the term Eligible
23
Assignee as a term that required unanimous Lender consent.
15
Alternatively, had that been the
intent, the Agreement would have unequivocally stated that the Sponsor could never, under any
circumstances, become an Eligible Assignee. But the Agreement does not say that.
Indeed, the Third Amendment validly passed without unanimous Lender consent
changed the definition of Eligible Assignee to allow Defendants to acquire Allieds first-lien
debt. (Id., 24). The Fourth Amendment also passed without unanimous Lender consent
further modified the definition of Eligible Assignee to allow Plaintiffs to acquire the majority of
Allieds debt from ComVest. (Id., 43). Plaintiffs never have asserted that these changes to the
definition of Eligible Assignee required their consent, nor could they validly do so.
Thus, at the very least, Plaintiffs arguments demonstrate that discovery is necessary to
determine the intent of the parties to the Agreement concerning the circumstances under which
Defendants could become an Eligible Assignee and acquire sufficient first-lien debt to become
Requisite Lender. See Korff, 18 A.D.3d at 251; see also Weiner, 203 A.D.2d at 454-55.
III. Under Any Reading Of The Agreement, Plaintiffs Cannot Show They Are Entitled
To The Declaration They Seek
Plaintiffs seek a declaration that the Fourth Amendment is null and void, ineffective,
and not binding and that Yucaipa is not Requisite Lenders under the Agreement. (19-a(b),
1). But Plaintiffs are absolutely not entitled to this relief under any reading of the Agreement.
Even assuming, arguendo, that the change to the definition of TLE in the Fourth Amendment
required unanimous Lender consent, Plaintiffs are not entitled to a declaration that the entire
Fourth Amendment is invalid. Section 6.2 of the Fourth Amendment contains a severability
clause stating: [i]n case any provision in or obligation hereunder shall be invalid, illegal or
15
Even Plaintiffs strained embedding theory would fail in this instance as neither the definition of Requisite
Lenders nor any of the terms embedded in it reference the term Eligible Assignee.
24
unenforceable . . . the validity, legality and enforceability of the remaining provisions or
obligations . . . shall not . . . be affected or impaired thereby. (Id., 50). As Plaintiffs do not
claim, nor can they, that any other terms in the Fourth Amendment required unanimous affected
Lender consent, Plaintiffs are not entitled to invalidate the entire Fourth Amendment. Were the
Court to rule that Plaintiffs are entitled to a declaration invalidating the Fourth Amendments
change to the definition of TLE, at most, Plaintiffs could only obtain a declaration that that
portion of the Fourth Amendment should be severed, and all other provisions of the amendment
remain valid and enforceable.
Furthermore, even if, arguendo, Plaintiffs were correct that unanimous Lender consent
was required to amend the definition of TLE in the Fourth Amendment, then logically
unanimous Lender consent must also have been required to add the TLE language in the Third
Amendment in the first place. Yet, unanimous Lender consent was not required to pass the Third
Amendment, and Plaintiffs do not contend that such consent was necessary. (Pl. Br. at 24
n.15).
16
Plaintiffs contention that unanimous Lender consent was not necessary for the
amendment to the definition of TLE in the Third Amendment is therefore a transparently
selective application of their argument.
17
16
If the Court finds ambiguity as to whether Plaintiffs acquiesced to the Third Amendment, Defendants are
entitled to discovery on this issue. (See supra, Argument Section I. B., at p. 17).
17
Plaintiffs contend that unanimous Lender consent was not required for the change to TLE in the Third
Amendment because they were not affected by such changes (Pl. Br. at 24 n.15). But they do contend that
unanimous Lender consent was required to change the definition of TLE in the Fourth Amendment because they
were affected by that change. Plaintiffs attempt to bridge this inconsistency by contending that the change to the
definition of TLE in the Fourth Amendment materially changed who could be the Requisite Lender under the
Credit Agreement. (Pl. Br. at 20). Plaintiffs argument fails because even assuming, arguendo, their own flawed
logic they were affected by the Third Amendment. Prior to passage of the Third Amendment, nothing in the
Agreements definitions of Requisite Lenders or TLE specifically limited Defendants ability to become a Requisite
Lender. (19-a(b), 14). Instead, Defendants were unable to become a Requisite Lender solely because the
definition of Eligible Assignee, stated that no . . . Sponsor shall be an Eligible Assignee (Id.). The Third
Amendment modified the definition of Eligible Assignee, such that other Lenders were no longer prohibited from
selling, assigning or transferring all or a portion of their Term Loans to Defendants. (Id., 24). Thus, the change to
TLE added by the Third Amendment would have affected Plaintiffs under their own mistaken theory, because it
materially change[d] who could be the Requisite Lender under the Credit Agreement by precluding Yucaipa from
25
Furthermore, if unanimous consent was required for the Third and Fourth Amendments
changes to the definition of TLE, then the amended TLE language in both the Third and Fourth
Amendments would need to be severed from the Third Amendment, pursuant to Section 7.2 of
the Third Amendment, Section 6.2 of the Fourth Amendment and Section 10.11 of the
Agreement. (19-a(b), 30, 50; Ehrlich Aff., Exh. 1, 10.11). Doing so would make the
original definition of TLE in the Agreement the effective definition of TLE. Because that
definition of TLE does not in any way preclude Defendants from becoming Requisite Lenders,
and because the definition of Eligible Assignee from the Fourth Amendment would still apply
Defendants would have been permitted to acquire as much TLE as they desired and become the
Requisite Lender.
Accordingly, the implication of Plaintiffs incorrect reading of the Agreement would be
to invalidate both the Third and Fourth Amendments in relation to the changes to TLE such
that Yucaipas Requisite Lender status is valid. Thus, at bottom, Plaintiffs cannot prevail on
summary judgment even if their twisted construction of the Agreement were accepted.
CONCLUSION
For all of the foregoing reasons, this Court should deny Plaintiffs Motion for Summary
Judgment in its entirety, and should schedule a conference and set a discovery schedule to
address all of the claims and defenses in this case.
becoming Requisite Lender on its own. Assuming they were affected by the Fourth Amendments change to
TLEs definition, then Plaintiffs were affected in two additional ways: (i) by amending the definition of TLE to
exclude any voting rights Yucaipa might have acquired by purchasing Term Loans under the Third Amendment, the
Third Amendments change to the TLE language would increase each Lenders voting rights on a pro rata basis
(Ehrlich Aff., Exh. 1 at 2.7(a)), and (ii) by making Defendants less likely to purchase those interests from the
Lenders thereby affecting the value of the Lenders holdings. Accordingly, under Plaintiffs own fallacious logic,
Plaintiffs were affected by the change to TLE in the Third Amendment and thus their effort to differentiate the effect
of the modification to TLE in the Fourth Amendment fails.
26
Dated: New York, New York
September 26, 2012
Respectfully submitted,
KASOWITZ, BENSON, TORRES
& FRIEDMAN LLP
By: /s/ David E. Ross
David E. Ross
David E. Spalten
Adam K. Grant
Marissa E. Teicher
1633 Broadway
New York, New York 10019
Tel: (212) 506-1700
Attorneys for Defendants
EXHIBITQ
FILED: NEW YORK COUNTY CLERK 09/26/2012
INDEX NO. 650150/2012
NYSCEF DOC. NO. 56 RECEIVED NYSCEF: 09/26/2012
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------------------------------------)(
BDCM OPPORTUNITY FUND II, LP,
BLACK DIAMOND CLO 2005-1 LTD
SPECTRUM INVESTMENT PARTNERS,
L.P.,
Plaintiffs,
-against-
YUCAIPA AMERICAN ALLIANCE FUND
I, LP, and YUCAIPA AMERICAN
ALLIANCE (PARALLEL) FUND I, LP
Defendants.
---------------------------------------------------------------------------------)(
Hon. Charles E. Ramos
Motion Seq. No. 3
Index No. 650150/2012
AFFIRMATION OF
ADAM K. GRANT
IN OPPOSITION TO
PLAINTIFFS'
MOTION FOR
SUMMARY JUDGMENT
Adam K. Grant, an attorney duly licensed to practice law before the Courts of the State of
New York, hereby affirms, under penalty of perjury, pursuant to the Civil Practice Law and
Rules ofthe State ofNew York, as follows:
1. I am a member ofKasowitz, Benson, Torres & Friedman LLP, attorneys for
defendants Yucaipa American Alliance Fund I, LP and Yucaipa American Alliance (Parallel)
Fund I, LP (together, "Yucaipa" or "Defendants"). I submit this affirmation in support of
Defendants' Opposition to Plaintiffs' Motion for Summary Judgment.
1
I. Relevant Procedural History
2. On May 17, 2012, approximately two weeks before the hearing on Defendants'
Motion to Dismiss, the Plaintiffs filed an involuntary Chapter 11 petition against Allied Systems
Holdings, Inc. in bankruptcy court in Delaware.
3. Oral argument was held on the Motion to Dismiss on May 30, 2012. At the
hearing, the Court denied Defendants' motion without prejudice, finding that issues of fact
1
Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Defendants' Rule
19-a(b) Response to Plaintiffs' Statement of Purportedly Undisputed Facts.
existed, and were appropriate for discovery, as to whether CIT acted as Plaintiffs' agent in
litigating and then dismissing with prejudice the Georgia Action seeking the same relief
Plaintiffs now seek in this action. At the conclusion of that hearing, the Court informed the
parties that it would schedule a preliminary conference to discuss discovery following
Defendants' service of its answer.
4. All the facts supporting Defendants' position cannot be stated at this time because
Defendants have not yet had discovery of Plaintiffs.
I. Defendants' Reasons For Not Taking Discovery In The Twenty-One Day Window
Between The Filing Of The Answer And The Filing Of The Motion.
5. The Answer was filed on August 6, 2012. In the twenty-one days between the
time the Answer was filed and the time Plaintiffs filed the Motion, Defendants did not take
discovery of Plaintiffs primarily for two reasons.
6. First, Defendants understood that the Court was going to hold a preliminary
conference concerning discovery and Defendants intended to ask the Court to limit discovery, in
the first instance, to its potential dispositive res judicata defense, given the Court's comments at
the close of the hearing on the Motion to Dismiss.
7. Second, throughout the spring and summer of 2012, Plaintiffs, Defendants, Allied
and a third party were involved in negotiations concerning a business resolution that would
resolve the instant dispute. While that resolution was being negotiated, Defendants saw no need
to engage in costly and time-consuming discovery if the matter was to be resolved without
further litigation. However, on or about August 23, 2012, the contemplated business resolution
fell through, and Plaintiffs brought the Motion four days later.
2
II. The Factual Discovery Essential to Defendants' Defenses
8. The subject matters on which Defendants need documentary and testimonial
discovery from Plaintiffs include the following topics:
a. Plaintiffs' acquisition of Allied's debt;
b. Plaintiffs' communications regarding the Requisite Lender issue,
including what entities could, and could not, be Requisite Lender;
c. Plaintiffs' communications concerning the propriety of passing the Third
Amendment with less than unanimous Lender consent;
d. Plaintiffs' communications concerning the Tender Offer and the Proposed
Fourth Amendment;
e. Plaintiffs' communications concerning the Fourth Amendment;
f. Plaintiffs' communications concerning Yucaipa's efforts to acquire, and
its acquisition of, Com Vest's first lien debt holdings;
g. Plaintiffs' communications concerning Yucaipa's Requisite Lender status
following the Assignment and Assumption Agreement;
h. Plaintiffs' communications with CIT concerning the Georgia Action;
1. Plaintiffs' knowledge of and involvement in the Georgia Action;
J. the nature and extent of the agency relationship between Plaintiffs and
CIT prior to, during, and following the Georgia Action;
k. whether any such agency relationship between Plaintiffs and CIT
terminated, and if so, when it terminated;
1. Plaintiffs' knowledge of and involvement in the settlement negotiations
concerning the Georgia Action;
m. Plaintiffs' knowledge of the Settlement Agreement and Dismissals with
Prejudice;
n. Plaintiffs' understanding concerning the terms of the Settlement
Agreement and Dismissals with Prejudice; and
o. the reason for Plaintiffs' failure to intervene in, or challenge CIT's actions
in, the Georgia Action.
3
9. Additionally, matters on which Defendants need documentary and testimonial
discovery from third parties, including CIT and Allied, include the following topics:
a. the various third parties' intent with respect to the scope of the Settlement
Agreement and the Dismissals with Prejudice; and
b. the various third parties' intent with respect to the terms of the Credit
Agreement, and the amendments thereto.
10. Additionally, matters on which Defendants need discovery from third parties,
including Com Vest, concerning, among other things, their intent with respect to the Fourth
Amendment to the Credit Agreement.
III. Exhibits to the Affirmation
11. Annexed hereto as Exhibit A is a true and correct copy of the Defendants'
Memorandum of Law in Support of Motion to Dismiss, filed on March 23, 2012.
12. Annexed hereto as Exhibit B is a true and correct copy of Defendants'
Memorandum of Law in Further Support of Motion to Dismiss This Suit Which is Barred By
Res Judicata, filed on April 23, 2012.
13. Annexed hereto as Exhibit Cis a true and correct copy of Plaintiffs'
Memorandum of Law in Opposition to Defendants' Motion to Dismiss, filed on April 17, 2012.
14. Annexed hereto as Exhibit D is a true and correct copy of the transcript from the
hearing on Defendants' Motion to Dismiss before this Court on May 30, 2012.
15. Annexed hereto as Exhibit E is a true and correct copy of the Order entered by
this Court on July 27, 2012, denying Defendants' Motion to Dismiss without prejudice.
16. Annexed hereto as Exhibit F is a true and correct copy of the Dismissals with
Prejudice, filed in Allied Systems Holdings, Inc., Yucaipa American Alliance Fund I, LP, and
Yucaipa American Alliance (Parallel) Fund I, LP v. The CIT Group/Business Credit, Inc., Civil
Action No. 2009-CV-177574 (Sup. Ct. ofFulton Cty., Ga.), on December 5, 2011.
4
17. Annexed hereto as Exhibit G is a true and correct copy ofPlaintiffs' Joint Brief in
Opposition to Defendant the CIT Group/Business Credit, Inc.'s Motion for Partial Summary
Judgment, filed in Allied Systems Holdings, Inc., Yucaipa American Alliance Fund I, LP, and
Yucaipa American Alliance (Parallel) Fund I, LP v. The CIT Group/Business Credit, Inc., Civil
Action No. 2009-CV-177574 (Sup. Ct. of Fulton Cty., Ga.), on February 18, 2011.
18. Annexed hereto as Exhibit His a true and correct copy of the Assignment and
Assumption Agreement, dated August 21, 2009.
19. Annexed hereto as Exhibit I is a true and correct copy of the Settlement
Agreement and Mutual Limited Releases, dated December 5, 2011.
20. Annexed hereto as Exhibit J is a true and correct copy of the letter to The CIT
Group Business Credit, Inc. from Schulte Roth and Zabel LLP, dated September 18,2009.
21. Annexed hereto as Exhibit K is a true and correct copy of the Verified Answer
and Counterclaims of Defendant the CIT Group/Business Credit, Inc. in Allied Systems
Holdings, Inc., Yucaipa American Alliance Fund I, LP, and Yucaipa American Alliance
(Parallel) Fund I, LP v. The CIT Group/Business Credit, Inc., Civil Action No. 2009-CV -177574
(Sup. Ct. of Fulton Cty., Ga.), on December 21, 2009.
22. Annexed hereto as Exhibit Lis a true and correct copy ofthe Affidavit of Richard
Ehrlich in Opposition to Defendants' Motion for Extension ofTime, dated Febmary 21, 2012.
5
23. Annexed hereto as Exhibit M is a true and correct copy of the transcript from the
hearing before this Court on February 28, 2012.
Dated: New York, New York
September 25, 2012
~
~
6
EXHIBITR
5084761v3
9/26/2012 7:25 PM
5084761v3
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1
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------------X
BDCM OPPORTUNITY FUND II, LP, :
BLACK DIAMOND CLO 2005-1 LTD : Hon. Charles E. Ramos
SPECTRUM INVESTMENT PARTNERS, :
L.P., : Motion Seq. No. 3
:
Plaintiffs, : Index No. 650150/2012
:
-against- : AFFIDAVIT OF
: DEREX WALKER
YUCAIPA AMERICAN ALLIANCE FUND : IN OPPOSITION TO
I, LP, and YUCAIPA AMERICAN : PLAINTIFFS
ALLIANCE (PARALLEL) FUND I, LP : MOTION FOR
: SUMMARY JUDGMENT
Defendants. :
------------------------------------------------------------------------X
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
DEREX WALKER, being duly sworn, deposes and states as follows:
1. I am of legal age and majority, under no disabilities, and am competent to testify
as to the facts contained herein. I submit this affidavit in opposition to Plaintiffs Motion for
Summary Judgment.
2. The facts contained in the affidavit are within my personal knowledge and are
known or believed by me to be true and correct.
3. I am a transaction partner with YEC, Inc., a company affiliated with Yucaipa
American Alliance Fund I, LP and Yucaipa American Alliance (Parallel) Fund I, LP
(collectively, Yucaipa).
4. Yucaipa is the largest shareholder of Allied Systems Holdings, Inc. (Allied), a
position it has held since Allied emerged from bankruptcy and Plaintiffs simultaneously acquired
their original positions in Allieds debt in May 2007. Yucaipa is also a lender in Allieds $315
FILED: NEW YORK COUNTY CLERK 09/26/2012
INDEX NO. 650150/2012
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million credit facility, which is comprised of a $265 million senior secured first priority credit
facility (the First Lien Facility or Senior Credit Facility) and a $50 million junior credit
facility. Although Yucaipa has investment positions in Allied and has the right to appoint a
majority of Allieds board of directorswhich right is expressly recognized in the Credit
Agreement pursuant to which the Plaintiffs are Lenders, Yucaipa does not control Allied or its
senior management, contrary to allegations made by Plaintiffs in the above-styled action.
Allieds board of directors includes two independent directors, including Allieds CEO, who are
not affiliated with Yucaipa.
5. The First Lien Facility is governed by the Credit Agreement. Upon information
and belief, plaintiffs BDCM Opportunity Fund II, LP, Black Diamond CLO 2005-1 LTD
(together, Black Diamond), and Spectrum Investment Partners, L.P. (Spectrum, together
with Black Diamond, Plaintiffs) have been parties to the Credit Agreement since the
syndication of the loan. I am personally aware that Plaintiffs had no input whatsoever in the
Credit Agreements negotiation.
Yucaipas Experience with Black Diamond
6. Black Diamond has a reputation as a lender for being unduly aggressive,
irrational, and difficult to work with. Upon information and belief, several private equity firms
have blacklisted Black Diamond and will not do business with them.
7. My first experience with Black Diamond was in connection with my service as
Chairman of the Board of Directors for Performance Transportation Systems, Inc. (PTS), an
Allied competitor that provided distribution and transportation services to the automotive
industry. Yucaipa owned the majority of PTSs equity but did not own any of its debt, and Black
Diamond owned the majority of PTSs first-lien debt and served as its Requisite Lender. In
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2007, when PTS was struggling financially, Black Diamond, in its capacity as Requisite Lender,
demanded that PTSs Board of Directors unilaterally terminate PTSs collective bargaining
agreement with the International Brotherhood of Teamsters (the Teamsters) in a desperate
attempt to cut wages for more than fifteen-hundred (1,500) drivers and mechanics by at least
15% and thereby increase Black Diamonds return on its investment in PTS. The Board advised
Black Diamond that its maneuver would backfire and cause almost seventeen-hundred (1,700)
PTS employees to lose their jobs, but Black Diamond insisted on its requirement that PTSs
Board carry out its plan. Steve Deckoff, managing principal of Black Diamond, advised PTS
that he was betting that PTSs employees would be so nervous about keeping their jobs in a
difficult economy that they would break ranks with Teamster leadership and side with Black
Diamond in its attempt to lower wages. Predictably, after Black Diamonds plan was
implemented against the recommendation of PTSs Board, the Teamsters immediately went on
strike and PTS was forced into liquidation. As a consequence, almost seventeen-hundred (1,700)
PTS employees lost their jobs. Mr. Deckoff later admitted during a meeting with me on August
18, 2009, that he believed Black Diamond made a mistake in its handling of PTS.
The Third Amendment to Allieds First Lien Credit Facility
8. In early 2008, a number of Lenders were concerned about the state of the
automotive industry and were looking for strategies to exit their positions in the Allied debt.
Some of these Lenders expressed interest in potentially selling their debt positions to Yucaipa
but recognized that doing so would potentially constitute a default under the Credit Agreement
without an amendment to the terms of the Credit Agreement. To facilitate such potential sales,
the Lenders held discussions with Allied about potentially amending the Credit Agreement to
allow Yucaipa to be an Eligible Assignee under that documents terms. On April 17, 2008, the
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Lenders Administrative and Collateral Agent under the Credit Agreement, The CIT
Group/Business Credit, Inc. (CIT), coordinated passage of Amendment No. 3 To Credit
Agreement and Consent (the Third Amendment). The Third Amendment was validly enacted
with Requisite Lender consent, which essentially constituted consent from the Lenders holding
the majority of Allieds outstanding first-lien debt, and permitted Yucaipa to acquire Allied debt
without potentially causing a default. Yucaipa was not a party to the Third Amendment and
neither requested nor received consent to the Third Amendment.
9. Plaintiffs have never asserted to Yucaipa or Allied that the Third Amendment or
any portions thereof are ineffective or required unanimous Lender consent to be effective.
10. Yucaipa did not make any purchases of Allieds first lien debt while the Third
Amendment was in effect, prior to the enactment of the Fourth Amendment.
Yucaipas Negotiations with Lenders, Including Plaintiffs, Concerning First-Lien Debt
11. In December 2008, with the automotive industry continuing to decline, Lenders
holding a majority of Allieds first-lien debt sought to exit their positions in Allieds first-lien
debt by selling them to Yucaipa pursuant to the Third Amendment. Yucaipa made clear to the
Lenders that it would buy the Lenders positions only if certain Third Amendment terms related
to Yucaipas potential acquisitions were amended and Yucaipa could serve as the Requisite
Lender on its own.
12. Yucaipa informed Plaintiffs of, and Plaintiffs were aware of, Yucaipas conditions
for acquiring first-lien debt prior to ComVests acquisition of its Requisite Lender stake in
Allieds first-lien debt in February 2009 because Yucaipa had delivered to Plaintiffs a copy of a
proposal including the terms of Allieds proposed fourth amendment to the Credit Agreement as
part of a proposed tender offer for Allieds first lien debt as described more fully in Paragraph 14
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of this affidavit. Despite this knowledge, Plaintiffs remained silent and never asserted in any
way that Yucaipa could not be Requisite Lender under the terms of that proposed fourth
amendment to the Credit Agreement.
13. As negotiations between Yucaipa and potential selling Lenders progressed, a
Lender told me that Lenders holding a majority of Allieds first-lien debt excluded both Plaintiffs
from some of their discussions because of Plaintiffs reputation for being difficult and
obstructionist.
14. In response to the Lenders stated desire to sell Yucaipa their debt, Yucaipa
submitted a written tender offer to all Lenders, including Plaintiffs, on February 4, 2009 (the
Tender Offer). The Tender Offer package included Allieds proposed fourth amendment to the
Credit Agreement (the Proposed Fourth Amendment) that would have amended the Third
Amendments terms to eliminate any limits on the amount of Term Loans and LC Deposits
Yucaipa could purchase, permitted Yucaipa to acquire a majority of Allieds first-lien debt, and
permitted Yucaipa to become the Requisite Lender, among other changes. A true and correct
copy of the February 4, 2009 email, attaching the Tender Offer materials and the Proposed
Fourth Amendment (the February 4 Email) is attached hereto as Exhibit A. The February 4
Email shows that the Tender Offer documents, including the Proposed Fourth Amendment, were
sent to Richard Ehrlich of Black Diamond and Jeffrey Schaffer and Jeff Buller of Spectrum,
among others. Although some of the Proposed Fourth Amendments terms varied from the
Fourth Amendment that ComVest enacted on August 21, 2009, the two documents definitions
of Term Loan Exposure were identical.
15. On February 11, 2009, Yucaipa offered to extend the deadline for responses to the
Tender Offer in an email that was sent to all Lenders, including Richard Ehrlich of Black
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Diamond and Jeffrey Schaffer and Jeff Buller of Spectrum, among others. A true and correct
copy of the February 11, 2009 email and accompanying letter from Yucaipa is attached hereto as
Exhibit B.
16. Plaintiffs did not take any steps to demonstrate opposition to any aspect of
Yucaipas Tender Offer or the Proposed Fourth Amendment. Plaintiffs never informed Yucaipa
that the changes in the Proposed Fourth Amendment would violate the letter or the spirit of the
Credit Agreement, and never stated that such changes could be made only with their consent.
17. At approximately the same time in February 2009, ComVest Investment Partners
III, L.P. (ComVest) acquired the majority of Allieds first-lien debt, including a majority of
both the First Lien Term Loans and LC Commitments from Allieds then-existing Lenders.
Shortly thereafter, Yucaipa entered into direct negotiations with ComVest to acquire its
Requisite Lender position. These negotiations played out over several months and involved
different proposals, but every one of them contemplated ComVest enacting certain amendments
to the Third Amendments terms, Yucaipa acquiring ComVests majority position in Allieds
first-lien debt, and Yucaipa becoming the Requisite Lender.
18. During the time Yucaipa and ComVest were negotiating over Yucaipas purchase
of Allieds first-lien debt held by ComVest, Richard Ehrlich of Black Diamond called me several
times to inquire about the status of the negotiations. Yucaipa told Mr. Ehrlich, and he was fully
aware throughout the summer of 2009, that Yucaipa intended to acquire ComVests majority
position in Allieds first-lien debt and become the Requisite Lender. Black Diamond not only
understood Yucaipas intentions and did not object, but went further, proposing to join with
Yucaipa in transactions to gain total control of Allieds assets, to the detriment of all of Allieds
other Lenders. At one point, Black Diamond sought to sell its debt position to ComVest while
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Black Diamond knew ComVest was seeking to sell all of its holdings to Yucaipa, including the
debt ComVest might acquire from Black Diamond. During other calls with Mr. Ehrlich and
during an August 18, 2009 in-person meeting I had with Mr. Deckoff of Black Diamond and
another Yucaipa representative, Black Diamond proposed a transaction whereby Black Diamond
and Yucaipa would put Allied into bankruptcy and seek to purchase its assets at a low-ball price.
Under Black Diamonds plan, Black Diamond and Yucaipa would jointly make a new loan to
Allied to fund Allieds bankruptcy, which would be structured as bankruptcy debtor-in-
possession financing. Black Diamond assumed that Allied would be unable to repay that loan,
and therefore Black Diamond could foreclose on Allieds assets without providing any recovery
to the rest of Allieds lenders. Black Diamond advised me that it was willing to write off its
investment in the first-lien debt in the bankruptcy because it held so little debt and had only paid
$0.15 on the dollar for that debt. It further advised that its plan would provide a larger profit to
Yucaipa than buying ComVests position in Allieds first-lien debt would provide. During my
calls with Mr. Ehrlich and during my meeting with Mr. Deckoff, Black Diamond never took any
steps to demonstrate opposition to any aspect of Yucaipas plan to become Requisite Lender.
Fourth Amendment
19. On August 21, 2009, ComVest, as Requisite Lender, and Allied executed the
Fourth Amendment. Allied appointed an independent committee of board members to review
and vote on the Fourth Amendment, and the law firm of Troutman Sanders issued an opinion
letter to CIT, as Lenders Agent, and the Lenders regarding the validity of the Fourth
Amendment. Allieds independent committee voted to approve the Fourth Amendment.
ComVest and Yucaipa executed the Assignment and Assumption Agreement after the Fourth
Amendment was enacted.
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20. Yucaipa relied on the validity of the Third Amendments passage by less than
unanimous consent, in subsequently relying upon Allieds obtaining passage of the Fourth
Amendment by less than unanimous consent. That same reliance on the validity of both the Third
and Fourth Amendments led Yucaipa to purchase over $140 million in Allieds first-lien debt.
21. In the days leading up to the Fourth Amendments enactment and the Assignment
and Assumption Agreement, principals from Black Diamond, including Richard Ehrlich, had
multiple discussions with Yucaipa concerning Yucaipas plan to acquire ComVests majority
position. In particular, I met with Steve Deckoff of Black Diamond and another Yucaipa
representative in person in Los Angeles on or about August 18, 2009 to discuss potential
transactions involving Yucaipa and Black Diamond. An email regarding this meeting makes it
clear that Mr. Deckoffs sole purpose in traveling to Los Angeles was to meet with Yucaipa
about Allied. During this meeting, the parties discussed Yucaipas proposed transaction to
acquire ComVests majority debt position, and Yucaipa informed Mr. Deckoff that Yucaipa was
close to completing that transaction. Yucaipa and Black Diamond further discussed Yucaipas
acquisition of ComVests position, among other topics, during an August 19, 2009 conference
call involving Mr. Ehrlich, Stephanie Bond, an associate of Yucaipa, Robert Klyman, Esq. and
Glen Collyer, Esq. of Latham & Watkins LLP (Yucaipas counsel), and myself. (True and
correct copies of an August 11-15, 2009 email string between Black Diamond and Yucaipa
regarding the August 18, 2009 meeting and an August 19, 2009 email string between Black
Diamond and Yucaipa regarding the August 19, 2009 conference call are attached hereto as
Exhibit C.) During these communications, Black Diamond never objected in any way to
Yucaipas proposed acquisition, never expressed that it would not consent to Yucaipa becoming
Requisite Lender, and never stated a belief that unanimous Lender consent was required for
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Yucaipa to acquire ComVests position. To the contrary, Black Diamond acquiesced to
Yucaipas proposed plan.
22. The following day, August 20, 2009, Mr. Ehrlich of Black Diamond followed up
on our discussions via email, asking me What did you decide? regarding Allied. I
understood him to be asking if Yucaipa had decided to pursue Black Diamonds proposed
transaction or to acquire ComVests majority position in Allieds debt. I responded: Havent
yet. (A true and correct copy of our Aug. 20, 2009 email string is attached hereto as Exhibit D.)
23. On August 22, 2009, I followed up with Mr. Ehrlich via email to inform him that
Yucaipa did in fact take an assignment of the ComVest debt. Black Diamond did not object or
express in any way that Yucaipas acquisition was improper; instead, Mr. Ehrlich responded,
OK. Let me know a good time [to talk]. (A true and correct copy of our August 22-24, 2009
email string is attached hereto as Exhibit E.) Black Diamond did not state any objection to
Yucaipa that unanimous Lender consent was required for Yucaipa to acquire ComVests position
and never questioned Yucaipas Requisite Lender status to me, even after the Fourth Amendment
was passed and Yucaipa acquired ComVests majority position permitting Yucaipa to become
Requisite Lender.
24. I also contacted Jeff Schaffer of Spectrum on August 22, 2009, to inform him that
Yucaipa had taken an assignment of ComVests first-lien loans. Mr. Schaffer responded to my
email on September 8, 2009, stating I am back in the office this week. Please call me at your
convenience so we can discuss next steps. Thanks, Jeff. I also offered to meet in person with
Mr. Schaffer later in September 2009, but he was not available. (A true and correct copy of my
email exchange with Mr. Schaffer is attached hereto as Exhibit F.) Even though I attempted to
open a line of communication with Mr. Schaffer, he never objected in any way to Yucaipas
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acquisition, never expressed that the Fourth Amendment was invalid or that unanimous Lender
consent was required for Yucaipa to acquire ComVests position, and never questioned
Yucaipas Requisite Lender status to me before his and Black Diamonds counsel sent a letter to
CIT on September 18, 2009, as discussed further below.
25. I also contacted CIT on or about August 22, 2009, to inform them that Yucaipa
had taken an assignment of ComVests first-lien loans. I had a series of phone calls with CIT
representatives over the weeks that followed concerning Yucaipas requests as Requisite Lender
for CIT as Administrative Agent to resolve certain outstanding administrative issues. During
those multiple calls, CIT never objected in any way to Yucaipas acquisition, never expressed
that the Fourth Amendment was invalid or that CITs or all Lenders consent was required for
Yucaipa to acquire ComVests position, and never questioned Yucaipas Requisite Lender status.
The Georgia Litigation
26. Approximately one month after Yucaipa acquired ComVests majority position
without objection from Plaintiffs, Plaintiffs changed course and, by letter dated September 18,
2009, instructed CIT, as Lenders Agent, to challenge the validity of the Fourth Amendment.
Soon thereafter, based on CITs intransigence in response to Plaintiffs request, Allied and
Yucaipa were forced to file suit in Georgia against CIT in its representative capacity.
27. I understood that CIT served as Plaintiffs agent in the Georgia litigation, and that
CIT was litigating on its own behalf and on behalf of all the Lenders, including Plaintiffs,
throughout the Georgia litigation. CIT asserted in its Counterclaim that it filed suit to resolve the
competing and contrary claims between Plaintiffs and Yucaipa, and to resolve its uncertainty
and insecurity regarding its rights and actions as Agent. (Grant Aff., Exh. K, 35 and 41; see
also id., 34-42.) To illustrate those competing and contrary claims, CIT attached a letter
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from Plaintiffs to its Counterclaim and explained that Plaintiffs specifically instructed [CIT] not
to recognize the directions Yucaipa provided as Requisite Lender. (Id. 34; id., Exh. J.) I
understood that CIT brought its claim for a declaratory judgment that the Fourth Amendment
was not valid and that Yucaipa was not the Requisite Lender in its representative capacity on
Plaintiffs and other Lenders behalf. (See id., Exh. K, 35 (CIT brought the declaratory
judgment claim to fulfill its role as Administrative Agent in good faith, and to protect itself, as
Administrative Agent, from competing and contrary claims from various Lenders) and id., 42
(CIT sought the declaration to establish that it had not breached its obligations as
Administrative Agent and Collateral Agent under the Credit Agreement).)
28. Plaintiffs have also repeatedly admitted in this litigation that CIT served as their
agent in the Georgia litigation. (See, e.g., Grant Aff., Exh. L, 12; id., Exh. M at 2:13-15.)
29. While their agent was challenging the validity of Yucaipas Requisite Lender
status, Plaintiffs were busy behind the scenes attempting to negotiate a deal with Yucaipa to sell
Allied. In March through May, 2011, Black Diamond attempted to broker a transaction whereby
Allied would be sold as a whole or as part of an asset sale to a third party. Black Diamond
proposed to finance this acquisition. Over the course of approximately three months, Mr. Ehrlich
sent me numerous proposals regarding this potential transaction, all of which relied on Yucaipas
ability to vote the majority of Allieds debt and exercise its Requisite Lender powers. During
these discussions, Plaintiffs never suggested they had any objection to or issue with Yucaipa
being Requisite Lender or the Fourth Amendments validity. Indeed, Plaintiffs plan recognized
and depended on Yucaipas Requisite Lender status to fulfill their own business objectives.
30. Plaintiffs also participated in the Georgia litigation. Both Black Diamond and
Spectrum produced documents in response to subpoenas issued in the Georgia litigation; Mr.
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Ehrlich was deposed as Black Diamonds Rule 30(b)(6) designee on May 4, 2011; and Spectrum
was scheduled for a Rule 30(b)(6) deposition on May 18, 2011, but that deposition was
postponed based on settlement discussions between Yucaipa and CIT, who Yucaipa understood
to still be acting as Plaintiffs agent. Black Diamond and Spectrum were both represented in the
Georgia litigation by the same counsel who represent them in the above-styled case.
31. Plaintiffs were fully aware that settlement negotiations were ongoing between
Yucaipa, Allied and CIT from approximately May 2011 until December 2011. In fact, Mr.
Ehrlich called me repeatedly for updates on the status of the discussions during those months. I
understood Mr. Ehrlichs calls were to gauge Yucaipas settlement posture. I understood he also
was talking with his agent, CIT, throughout the settlement process. During Mr. Ehrlichs calls to
me, he never complained about CITs handling of the Georgia Action, never expressed that a
settlement of the Georgia Action would not resolve the claims CIT brought in its representative
capacity, never said that his or other Lenders consent would be required to finalize the
settlement, and never suggested that Yucaipa could not be Requisite Lender.
32. During the time the Georgia litigation was pending, including during the six
months when the parties were negotiating a settlement, Plaintiffs never informed Yucaipa that
they had terminated their agency relationship with CIT. Similarly, CIT never suggested to
Yucaipa that its agency relationship with Plaintiffs had terminated or that they were displeased
with CITs handling of the Georgia Action.
33. On December 5, 2011, CIT, Yucaipa and Allied executed a Settlement Agreement
to settle the Georgia litigation, and the parties filed Dismissals with Prejudice of all of their
claims two days later. Upon information and belief, Plaintiffs became aware of the Settlement
Agreement on December 5, 2011, when CIT posted it to an IntraLinks website that is available to
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all of Allieds Lenders. Yucaipa intended for CIT to execute the Settlement Agreement and the
Dismissals with Prejudice in both its representative capacity and in its individual capacity as a
Lender, and Yucaipa understood that CIT did, in fact, act in both capacities in executing both
documents. Yucaipa intended for several provisions of the Settlement Agreement to apply to
CIT in its representative capacity. For example, Paragraph 10 of the Settlement Agreement
clearly contemplated CIT acting in its representative capacity, as it states CIT acknowledges
that it recorded Yucaipas first lien loans on the Register (as defined in the Credit Agreement)
and expressly recognizes the validity and enforceability of the Fourth Amendment. The Credit
Agreement requires the Administrative Agent to record each loan on the Register. (Ehrlich Aff.,
Exh. 1, 10.6(b).) Yucaipa intended that many other Settlement Agreement provisions would
apply to CIT in its representative capacity. (See, e.g., Grant Aff., Exh. I, 13 (concerning
circumstances under which CIT may resign as Administrative Agent and Collateral Agent and
CITs agreement not to exercise any remedies as Administrative Agent and Collateral Agent
before it resigns without Yucaipas written consent as Requisite Lender); id., 7 (CIT in its
capacity as agent or otherwise agrees to support any Restructuring [of Allied] to which Yucaipa
consents under certain enumerated conditions); id., 11 (concerning CITs resolution of
administrative issues in its representative capacity as Administrative and Collateral Agent); id.,
14 (concerning CITs consent rights over the appointment of a replacement Administrative
Agent and Collateral Agent).
34. Paragraph 2 of the Settlement Agreement required CIT, Yucaipa and Allied to
dismiss their respective claims in the Action with prejudice upon the execution of this
Agreement. (Id., 2). Yucaipa intended and understood that this Paragraph required CITs
dismissal, with prejudice, of all its claims including the entire declaratory judgment claim CIT
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brought in its representative capacity. Accordingly, CIT dismiss[ed] with prejudice the Verified
Answer and Counterclaims and all claims it asserted in its Verified Answer and Counterclaims.
(Grant Aff., Exh. F (emphasis added)). Yucaipa intended and understood that CITs dismissal
resolved with finality the declaratory judgment claim it brought in its representative capacity.
35. Plaintiffs learned about the Settlement Agreement on December 5, 2011, two
days before CIT, Yucaipa and Allied filed their Dismissals with Prejudice. (Grant Aff., Exh. C
at 11). Between December 5 and December 7, 2011, Plaintiffs did not inform or suggest in any
way to Yucaipa or Allied that they objected to the settlement or the dismissal, or that they
believed CIT entered the settlement and dismissal solely in its individual capacity. Allied and
Yucaipa were in direct contact with CIT between December 5 and 7, 2011 and CIT did not
inform Allied or Yucaipa that Black Diamond or Spectrum stated any objection regarding the
settlement to CIT during that period.
36. Paragraph 1(d) of the Settlement Agreement states that the parties to the
Settlement Agreement do not release any claims belonging to any person or entity other than
the Parties to this Agreement. I understood and intended that the sole and exclusive purposes of
this language were to (a) preserve claims that third parties might have unrelated to the validity of
either the Fourth Amendment or Yucaipas status as Requisite Lender; (b) ensure that Allied was
not inadvertently being released from its obligations under the Credit Documents, including,
without limitation, its obligation to repay the loans at maturity; and (c) preserve claims that
Allieds Lenders may have against CIT for any liability it might have as a result of its actions or
inactions as Administrative or Collateral Agent, including without limitation its initial failure as
Collateral Agent to properly perfect the Lenders security interests in certain of the Allied
collateral. The language was never intended to preserve claims that Lenders or their
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representatives might have against Yucaipa with respect to the validity of the Fourth Amendment
or its status as Requisite Lender, as those claims were brought in the counterclaim and settled by
CIT in the Settlement Agreement in its representative capacity as agent for Allieds first lien
Lenders and thereafter dismissed with prejudice by CIT in its representative capacity as agent for
Allieds first lien Lenders under the Credit Agreement. Nor was the language in Paragraph 1(d)
intended to somehow limit the scope of CITs dismissal with prejudice or otherwise limit CITs
capacity to enter the Settlement Agreement and the Dismissals with Prejudice in its
representative capacity. Yucaipa understood and intended that CITs dismissal with prejudice of
all of its claims in the Georgia litigation, including those it brought in its representative capacity
regarding the validity of the Fourth Amendment and Yucaipas Requisite Lender status, would
thereby be resolved with finality and that no other Lender could assert those claims in the future.
37. Yucaipa has not affirmatively exercised any of its powers as Requisite Lender.
This is consistent with prior Requisite Lenders course of conduct. After Allied stated to the
Lenders in August 2008 that Events of Default had occurred under the Credit Agreement, and
even after Allied ceased making scheduled interest payments in May 2009 and ceased making
scheduled amortization payments in July 2009, the Lenders never acted to enforce Lenders
remedies against Allied up to and including August 21, 2009, when Yucaipa first acquired its
first-lien debt. During this year-long period, Allied did not expect the then-Requisite Lenders to
enforce their remedies, as Allied operated without the protection of a forbearance agreement for
all but two months of this time. Additionally, any Lender could have filed an involuntary
bankruptcy proceeding against Allied at any time after August of 2008, but no Lender chose to
do so until Plaintiffs filed their involuntary proceeding on May 17, 2012.
';lS
This_ day of September, 2012.
Swo!D __!9 and subscribed before me
of September, 2012.

My commission expires:
..
16
EXHIBITS




SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------x
BDCM OPPORTUNITY FUND II, LP, BLACK
DIAMOND CLO 2005-1 LTD, and
SPECTRUM INVESTMENT PARTNERS,
L.P.,

Plaintiffs,
Index No.: 650150/2012

- against -
YUCAIPA AMERICAN ALLIANCE FUND I,
LP, and YUCAIPA AMERICAN ALLIANCE
(PARALLEL) FUND I, LP,
Defendants.
:
:
:
:
:
:
:
:
:
:
:
:
:
------------------------------------------------------------x
Motion Seq. No. 3
Hon. Charles E. Ramos





REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT











SCHULTE ROTH & ZABEL LLP
919 Third Avenue
New York, New York 10022
(212) 756-2000

Attorneys for Plaintiffs
BDCM Opportunity Fund II, LP,
Black Diamond CLO 2005-1 Ltd., and
Spectrum Investment Partners, L.P.

FILED: NEW YORK COUNTY CLERK 10/09/2012
INDEX NO. 650150/2012
NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 10/09/2012


i

TABLE OF CONTENTS
PRELIMINARY STATEMENT.1

ARGUMENT...4

I. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT UNDER THE PLAIN
TERMS OF THE UNDERLYING AGREEMENTS..4

A. Summary Judgment Is Appropriate At This Time................................................................. 4

B. An Amendment Having The Effect of Changing The Definition Of Requisite Lenders
Requires Unanimous Affected Lender Consent. ........................................................................ 5

C. The Purported Fourth Amendment Had The Effect of Amending The Definition of
Requisite Lenders by Changing the Meaning of Term Loan Exposure...................................... 5

1. Defendants Could Not Have Become Requisite Lenders Under The Third Amendment. . 7

2. Only As A Result of The Purported Fourth Amendment Could Defendants Claim To Be
Requisite Lenders.................................................................................................................... 9

D. All Lenders Were Affected By The Purported Fourth Amendment, Which For The First
Time Permitted Defendants To Become Requisite Lenders..................................................... 10

II. DEFENDANTS AFFIRMATIVE DEFENSES FAIL AS A MATTER OF LAW.11

A. The Settlement Agreement Forecloses Defendants Res Judicata Defense. ....................... 11

B. The Credit Agreement's "No Waiver" Provision Precludes Defendants From Asserting
Waiver or Estoppel. .................................................................................................................. 13

C. Even If The No-Waiver Provisions Do Not Apply, Plaintiffs' Failure To Object To The
Third Amendment Has No Relevance. ..................................................................................... 15

CONCLUSION..15


ii

TABLE OF AUTHORITIES

CASES PAGE(S)

Antonini v. Petito,
96 A.D.3d 446 (1st Dep't 2012)................................................................................................ 14

Awards.com v. Kinko's, Inc.,
42 A.D.3d 178 (1st Dep't 2007)................................................................................................ 14

Blitman Constr. Corp. v. Ins. Co. of N. Am.,
66 N.Y.2d 820 (1985)............................................................................................................... 14

Brown & Williamson Tobacco Corp. v. Gault,
280 Ga. 420 (2006)................................................................................................................... 11

City of Centerville v. City of Warner Robins,
270 Ga. 183 (1998)................................................................................................................... 12

Crossland Sav., FSB v. Loguidice-Chatwal Real Estate Inv. Co.,
171 A.D.2d 457 (1st Dep't 1991).............................................................................................. 15

Fabiano v. Philip Morris Inc.,
54 A.D.3d 146 (1st Dep't 2008)................................................................................................ 12

Fundamental Port. Advisors, Inc. v. Toqueville Asset Mgmt.,
7 N.Y.3d 96 (2006)................................................................................................................... 14

Gen. Phoenix Corp. v. Cabot,
300 N.Y. 87 (1949)..................................................................................................................... 4

Lee v. Marvel Enters., Inc.,
386 F. Supp. 2d 235 (S.D.N.Y. 2005) ........................................................................................ 9

Pearce, Urstadt, Mayer & Greer Realty Corp. v. Atrium Dev. Assocs.,
77 N.Y. 2d 490 (1991)................................................................................................................ 5

Quintel Commc'ns, Inc. v. Fed. Transtel, Inc.,
142 F. Supp. 2d 476 (S.D.N.Y. 2001) ........................................................................................ 5

Reiss v. Fin. Performance Grp.,
97 N.Y. 2d 195 (2001)................................................................................................................ 4

RM Realty Holdings Corp. v. Moore,
64 A.D.3d 434 (1st Dep't 2009).................................................................................................. 9



iii

Rotblut v. Conn. Gen. Life Ins. Co.,
226 A.D.2d 617 (2d Dep't 1996) .............................................................................................. 11

Shea v. Am. Tobacco Co.,
73 A.D.3d 730 (2d Dep't 2010) ................................................................................................ 12

Terry v. State Farm Fire & Cas. Ins. Co.,
269 Ga. 777 (1998)................................................................................................................... 12

Triax Capital Advisors, LLC v. Rutter,
83 A.D.3d 490 (1st Dep't 2011)................................................................................................ 11

Weeks Marine, Inc. v. Am. S.S. Owners Mut. Prot. and Indem. Assoc., Inc.,
No. 08 Civ. 9878, 2011 WL 3796331 (S.D.N.Y. Aug. 25, 2011)............................................ 15






PRELIMINARY STATEMENT
This is a straightforward action which only seeks one remedy: a declaration as to the meaning of
certain contract language. No extrinsic evidence is relevant. Thus, contrary to Defendants objection, this
motion is not premature; it is being made at exactly the right time. There are two possible outcomes to the
motion: either (1) the Court finds, upon review of the four corners of the contract, that the language is clear
on its face, in which case the Court should grant summary judgment, and the parties will not waste
significant time and money in unnecessary discovery; or (2) the Court finds that the language is
ambiguous, the motion for summary judgment is denied, and the case will move forward with a ruling that
will help the parties focus their discovery. In either instance, the motion is not only timely, it is advisable
in order to either end the action now or give the parties guidance as to future proceedings.
As this Court is aware, on an application to construe language in a contract, the Court is not to
look to extrinsic evidence to create ambiguity in the contract; rather, the Court is charged with limiting
its review to the four corners of the contract to determine if there is any ambiguity.
Rather than limit themselves to the language of the contracts at issue, Defendants submit the
Walker Affidavit, which presents exclusively extrinsic evidence and serves no purpose other than to put
before this Court inflammatory accusations that will be strongly contested if necessary. Defendants,
however, are putting the cart before the horse; rather than looking to extrinsic evidence to create
ambiguity, the parties, and this Court, are to look to the text of the contract alone to ascertain if there is any
ambiguity.
1

This motion is also timely and dispositive as to the affirmative defenses raised by Defendants and
which Defendants argue require significant amounts of discovery. As to the alleged affirmative defense of

1
Although the Walker Affidavit is irrelevant to this motion, Plaintiffs deny each statement contained therein as well as
the similarly irrelevant "Additional Material Facts Asserted By Defendants" attached to Defendants' Opposition. Indeed,
the Court should never get to the Walker Affidavit, regardless of its ruling on this motion. If the Court determines from the face
of the agreements that there is no ambiguity, the Court need not look at any extrinsic evidence. If, on the other hand, the Court
determines there is ambiguity and denies this motion, the parties will move on to plenary discovery as to all relevant extrinsic
evidence, not simply the Walker Affidavit. In either case, the Walker Affidavit is irrelevant to this motion.


2

res judicata, no resort to extrinsic evidence is necessary. Attached to the Complaint as Exhibit E is the
Settlement Agreement resolving the Georgia Action. Plaintiffs were not parties to the Georgia Action.
Defendants argue that CIT settled that litigation as Plaintiffs agent and as a result Plaintiffs are bound by
that settlement through res judicata. Defendants further argue that they need extensive discovery as to
whether CIT had the authority to settle on Plaintiffs behalf. This issue, however, is simply a red herring,
and any such discovery is unnecessary and wasteful. Even if CIT had the authority to settle the Georgia
Action for Plaintiffs, which it did not, the Settlement Agreement makes clear CIT did not do so CIT
only settled its own claims in its individual capacity. Thus, the issue of CITs authority is completely
irrelevant. Since the Settlement Agreement is clear on its face, the Court does not need to look beyond its
four corners.
As to the Defendants other affirmative defense, that Plaintiffs waived the right to object to the
Purported Fourth Amendment by not objecting to language in the Third Amendment, there is an express
no waiver clause in the agreements at issue. As a result, the waiver defense cannot be sustained.
Further, even in the absence of the no waiver clause, this Court would still be able to resolve the
issue of waiver from the face of the agreements, without resort to extrinsic evidence. Defendants
argument is that by virtue of the language in the Credit Agreement, Plaintiffs were required to
affirmatively object to the Third Amendment in order to maintain the right to object to the Purported
Fourth Amendment. However, review of the relevant contract language shows that there was no such
requirement placed on the Plaintiffs because they were not affected by the Third Amendment, and thus
the consent of all Lenders was not required. The same is not true for the Purported Fourth Amendment.
Thus, even without resorting to the no waiver clause, there is no ambiguity in the agreements and no need
to resort to extrinsic evidence.
The reason Defendants seek to delay this action by taking extensive discovery of unnecessary
extrinsic evidence is because, in the Allied bankruptcy, Defendants are attempting to act as Requisite


3

Lenders and through that role are threatening to prejudice the rights of the Plaintiffs as Lenders. Until this
Court rules on the issue of whether the Purported Fourth Amendment is null and void, Defendants will
continue to threaten Plaintiffs rights. Thus, the more delay the Defendants can achieve in this action by
arguing for discovery of irrelevant extrinsic evidence, the longer they will be able to threaten the rights of
Plaintiffs in the bankruptcy. The need for a speedy resolution of the Requisite Lender issue is another
reason this motion is timely.
The only issue to be determined by this Court, after its determination that the agreements are not
ambiguous on their face, is the meaning of the contract language at issue. Plaintiffs respectfully submit
that the contract language is clear that the Purported Fourth Amendment is null and void because the
required consents thereto were never obtained. In that regard, the question posed by Plaintiffs' motion is
whether the Purported Fourth Amendment had "the effect" of amending the definition of Requisite
Lenders in the Credit Agreement. In our Opening Brief, Plaintiffs established the following, based entirely
on the pleadings and Credit Documents:
Under the Credit Agreement, as amended by the Third Amendment, Yucaipa could not
acquire a material amount of Term Loan Exposure and could not act as Requisite Lenders due
to such limitations and the strict prohibitions on Yucaipa's ability to exercise any voting rights;
The Purported Fourth Amendment would eliminate these prohibitions by amending the
definition of Term Loan Exposure, a key defined term incorporated into the definition of
Requisite Lenders and upon which that definition turns; and
As a result of the amendment to the definition of Term Loan Exposure, which has the effect of
amending the definition of Requisite Lenders under the Purported Fourth Amendment, and
Yucaipas acquisition of the majority share of Allied's Obligations, Yucaipa now claims to be
Requisite Lenders.
As demonstrated in Plaintiffs' Opening Brief, Section 10.5(b) of the Credit Agreement requires
unanimous affected Lender consent for any amendment that has the effect of changing the definition of
Requisite Lenders. (Opening Br. at 16-17.) The Purported Fourth Amendment clearly had such an effect
and it is undisputed that no affected Lender, other than Yucaipa's counterparty, gave the required consent.


4

As a result, under the plain terms of the Credit Agreement, the Purported Fourth Amendment never
became effective and is thus null and void.
ARGUMENT
I. PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGMENT UNDER THE PLAIN
TERMS OF THE UNDERLYING AGREEMENTS.
A. Summary Judgment Is Appropriate At This Time.
This case presents a pure issue of contract interpretation and no discovery is needed. Plaintiffs
seek a declaration regarding their consent rights under the Credit Agreement with respect to an extensive
and integrated set of amendments (i.e., the Purported Fourth Amendment) that had the effect of amending
the definition of Requisite Lenders. The agreement is unambiguous; an amendment that had the effect of
changing the definition of Requisite Lenders, which the Purported Fourth Amendment unequivocally did,
required the consent of all affected Lenders, including Plaintiffs.
In their opposition papers, Defendants kick up a lot of dirt in an attempt to manufacture a material
issue of fact. However, none of these purported material facts are relevant to this motion since the motion
is purely addressed to contract construction. It is well-settled that extrinsic evidence is "not admissible to
create an ambiguity in a written agreement which is complete and clear and unambiguous on its face."
Reiss v. Fin. Performance Grp., 97 N.Y. 2d 195, 199 (2001) (emphasis added). Defendants attempt to
argue that there are many material factual issues is a fruitless exercise in the face of the contractual
language and the limited relief sought in this suit.
Once the Court determines that the documents are unambiguous on their face, "the intention of the
parties may be gathered from the four corners of the instrument, interpretation of the contract is a question
of law . . . [and] no trial is necessary to determine the legal effect of the contract." Gen. Phoenix Corp. v.
Cabot, 300 N.Y. 87, 92 (1949). In this case, the documents are unambiguous, no factual discovery is
required as to the parties intent or anything else, and the Court is to determine the legal effect of the
relevant agreements without resort to extrinsic evidence.


5

B. An Amendment Having The Effect of Changing The Definition Of Requisite
Lenders Requires Unanimous Affected Lender Consent.
Defendants make an overly literal argument that ignores the fact that Section 10.5(b) of the Credit
Agreement provides that unanimous affected Lender consent is required for any amendment where "the
effect thereof" would amend the definition of Requisite Lenders not only for amendments that would
change the literal words of the definition:
Without the written consent of each Lender (other than a Defaulting
Lender) that would be affected thereby, no amendment, modification,
termination or consent shall be effective if the effect thereof would:
(ix) amend the definition of Requisite Lenders. . .
2

(Ehrlich Aff., Ex. 1, 10.5(b)(ix) (emphasis added).) Ignoring the "if the effect thereof" language, as
Defendants urge the Court to do, would, contrary to a cardinal canon of construction, render that phrase
meaningless. See, e.g., Pearce, Urstadt, Mayer & Greer Realty Corp. v. Atrium Dev. Assocs., 77 N.Y. 2d
490, 497 (1991).
As set forth below and in the Opening Brief at 19-23, amending the definition of Term Loan
Exposure in the Purported Fourth Amendment had the obvious effect of amending the definition of
Requisite Lenders,
3
and required unanimous affected Lender consent.
C. The Purported Fourth Amendment Had The Effect of Amending The Definition
of Requisite Lenders by Changing the Meaning of Term Loan Exposure.
Defendants set up a straw man, arguing that Plaintiffs' reading of the contracts which gives

2
Requisite Lenders are defined in the Credit Agreement as:
one or more Lenders having or holding Term Loan Exposure, LC Exposure and/or Revolving
Exposure and representing more than 50% of the sum of (i) the aggregate Term Loan Exposure of all
Lenders, (ii) the aggregate LC Exposure of all Lenders and (iii) the aggregate Revolving Exposure of
all Lenders.
(Ehrlich Aff., Ex. 1, 1.1.) "Ehrlich Aff." refers to the Affidavit of Richard Ehrlich, dated August 27, 2012,
submitted in support of Plaintiffs' Motion for Summary Judgment.
3
In any event, the change to the definition of Term Loan Exposure did in fact change the actual language of the
definition of Requisite Lenders because whenever a defined term is utilized, it is as if the full meaning was used in its
place. Indeed, throughout its Opposition, Yucaipa asks the Court to ignore the function of defined terms, which serve as
a drafting convenience utilized by the parties to "set forth exactly what they mean[] in the body of the contract itself."
Quintel Commcns, Inc. v. Fed. Transtel, Inc. 142 F. Supp. 2d 476, 482 (S.D.N.Y. 2001).


6

meaning to the defined terms incorporated in the definition of Requisite Lenders, instead of treating them
as hollow terms renders the Credit Agreement "an unusable morass because . . . unanimous Lender
consent would be required for changes to any one of 33 terms." (Opp. Br. at 3.) This statement is simply
untrue, and it ignores the fact that the proper inquiry is whether any such change has the effect of
amending the definition of Requisite Lenders. It is not a given that any such change would have that
effect.
4
In this instance, however, the change to Term Loan Exposure indisputably had the effect of
changing the definition of Requisite Lenders.
Contrary to Defendants position that the meanings of the embedded terms are irrelevant, the
various defined terms incorporated in the definition of Requisite Lenders are necessary to give the
definition its meaning. Thus, a modification of a term embedded in the definition of Requisite Lenders
that has the effect of amending how Requisite Lenders are defined requires the written consent of all
Lenders who are affected thereby.
There is no dispute that the Purported Fourth Amendment changed the definition of Term Loan
Exposure. (Ehrlich Aff., Ex. 5, 2.1(e).) This change to the definition of Term Loan Exposure had the
effect of amending the definition of Requisite Lenders by permitting the amount of Term Loans purchased
by Defendants to be counted for the purposes of determining the Requisite Lenders whereas under the
Third Amendment they would have been disregarded. Only after the Purported Fourth Amendment
stripped away all restrictions on Defendants ability to both acquire Obligations and to count its Term

4
Defendants make an overly strained argument based on the fact that there are two terms which are specifically
mentioned in Section 10.5(b) as requiring unanimous Lender consent to be amended: Requisite Lenders and Pro Rata
Share. From this, Defendants argue that, "[i]f Plaintiffs' 'embedding' argument were correct, however, Pro Rata Share
would not need to be listed in Section 10.5(b) as one of the terms requiring unanimous Lender consent to modify,
because any amendment to that term would automatically have the 'effect' of amending the definition of Requisite
Lender." (Opp. Br. at 20.) Defendants again forget that a change to the definition of Pro Rata Share may not have any
effect on the definition of Requisite Lenders and also may not affect any of the Lenders. That is, Pro Rata Share
is a term whose application is broader than simply with reference to the definition of Requisite Lender, and its
amendment could, in many circumstances, have no effect on the definition of Requisite Lenders. Because amending the
definition of Pro Rata Share does not necessarily have the effect of amending the definition of Requisite Lenders, the
inclusion of Pro Rata Share in Section 10.5(b)(ix) is not superfluous and does nothing to undermine the argument that
changes to defined terms embedded within the definition of Requisite Lenders, such as Term Loan Exposure, have the
effect of amending the definition of Requisite Lenders and affect Lenders.


7

Loan Exposure and LC Exposure toward the definition of Requisite Lender, could Defendants claim to
have become Requisite Lenders and to control Allied's debt.
5

1. Defendants Could Not Have Become Requisite Lenders Under The Third
Amendment.
Under the Third Amendment, Defendants were permitted to become a "Lender" in name-only. In
addition to limiting the amount and types of Obligations that Defendants were allowed to acquire,
6
the
Third Amendment modified the definition of Term Loan Exposure by adding the prohibition, specific to
Defendants alone, that:
with respect to any provisions of this Agreement relating to the voting rights of
Lenders (including the right of Lenders to consent or take any other action with
respect to any amendment, modification, termination or waiver of any provision
of this Agreement or the other Credit Documents, or consent to any departure by
any Credit Party therefrom), the aggregate outstanding principal amount of the
Term Loans of [Defendants] shall be disregarded for purposes of this definition of
Term Loan Exposure.

(Ehrlich Aff., Ex. 5, 2.1(e) (emphasis added).) Simply translated, under the Third Amendment,
Defendants could buy a limited amount of Term Loans but could never vote them, including vote them in
connection with taking any action to enforce, modify or waive terms of the Credit Agreement. In effect,
any Term Loans purchased by Defendants were neutered. The Purported Fourth Amendment would
reverse the neutering and would give Defendants full rights to acquire Term Loans and vote.
7


5
Defendants argue for the application of the Latin maxim translated as the expression of one is the exclusion of the
other in making the literal argument that only amendments to the terms Requisite Lenders and Pro Rata Share literally
require unanimous Lender consent; however, that maxim is not applicable here since it only applies in a vacuum, where
expression is given as to one term but the contract is otherwise silent as to other terms. Here, the Credit Agreement is
not silent; it expressly says that unanimous consent of all affected Lenders is required to an amendment that has the
effect of amending the definition of Requisite Lender.
6
Under the Third Amendment, Defendants were prohibited from purchasing Revolving Loans or LC Deposits and
were restricted to 25% or $50 million of Term Loan Exposure. (See Ehrlich Aff., Ex. 5, 2.7(c).)
7
The voting rights Defendants agreed to forgo pursuant to the Third Amendment included any right "to consent or take
any other action with respect to any amendment, modification, termination or waiver of any provision of this Agreement
or other Credit Documents, or consent to any departure by any Credit Party therefrom; it being understood and agreed
that [Defendants] shall have no voting rights for all purposes under this Agreement (whether before, during or
after an Insolvency or Liquidation Proceeding) and the other Credit Documents with respect to their Term
Loans." (Ehrlich Aff., Ex. 5 2.7(a), amending Section 10.5 of the Credit Agreement (emphasis added).) In other
words, Defendants was prohibited from having any influence as a Lender.


8

The aforesaid prohibitions in the Third Amendment prevented Defendants from becoming
Requisite Lenders
8
because the amount of Defendants Term Loans could not be counted in the definition
of Term Loan Exposure. Since the term Requisite Lenders is defined to be the holder of more than 50%
of aggregate Term Loan Exposure and certain other loan exposure, and Defendants Term Loans were
expressly disregarded for purposes of the definition of Term Loan Exposure under the Third
Amendment, Defendants could never become Requisite Lenders. Defendants neutered Term Loans
simply did not count. In fact, Defendants admit that [c]hanging the definition of TLE [Term Loan
Exposure] . . . at most . . . affected the identity of who could be the Requisite Lender. (Opp. Br. at 22)
(emphasis in original).
Despite holding a limited amount of neutered Term Loans, with no ability to vote, consent to any
action, or amend the Credit Agreement, Defendants claim that they could have become Requisite Lenders
under the Third Amendment. (Opp. Br. at 21-22.) In continuing with this argument, Defendants assert
that the Third Amendment's definition of Term Loan Exposure "only requires that Defendants' Terms
Loans be disregarded 'with respect to any provision of [the Agreement] relating to the voting rights of
Lenders.'" (Id. at 21.) "Requisite Lender," according to Defendants, is merely an "arithmetic
calculation."
9
(Id.) This is simply not the case.
As noted, the prohibitions in the Third Amendment make clear that the Term Loans held by
Defendants are to be disregarded with respect to any provisions of this Agreement relating to the voting
rights of Lenders. (Ehrlich Aff., Ex. 5, 2.1(e).) The rights from which Defendants were expressly

8
In addition, the Third Amendment gave the Administrative Agent the discretion to exclude Defendants from receiving
documents or participating in meeting with "the Lenders (including with respect to the exercise of rights and remedies
under the Credit Agreement.") (Ehrlich Aff., Ex. 5, 2.6(a).) Defendants cannot seriously claim that they could have
become Requisite Lenders when the Administrative Agent could have precluded them from participating in meetings
with respect to the exercise of the Lenders' rights under the Credit Agreement.
9
If being the "Requisite Lender" was just a matter of arithmetic as Defendants contend, no party would care to dispute
the identity of the Requisite Lender. Rather, as acknowledged by all parties, Requisite Lenders enjoy considerable
control over the Lenders' actions, including the right to enforce or not to enforce the Lenders remedies against Allied,
rights explicitly withheld from Defendants under the Third Amendment.


9

denied under the Third Amendment i.e., to be disregarded from any provision of this Agreement
relating to the voting rights of Lenders are precisely the types of rights vested in the Requisite Lenders
under the Credit Agreement (i.e., the ability to consent to certain amendments, waivers, etc. under Section
10.5(b)).
10
Without this authority and the voting power to back it up, the Requisite Lenders would have no
ability to perform the functions contemplated by the Credit Agreement. Defendants' argument that they
could be Requisite Lenders but not vote is thus disingenuous and overly technical. The entire purpose of
being Requisite Lenders is so you can exercise voting rights associated with more than 50% of the debt in
respect of waivers, consent rights and the like. To be Requisite Lenders in name only, with no ability to
act, improperly elevates form over substance. See, e.g., RM Realty Holdings Corp. v. Moore, 64
A.D.3d 434, 438 (1st Dep't 2009) (discarding alternative interpretation as an exercise in elevating
form over substance that was in contravention of well-settled canons of contract interpretation).
Also, to have a Requisite Lenders who could not actually deliver the requisite votes needed to cause
amendments, waivers and consents to become effective would be an absurd result, and thus is not a
permissible interpretation of the Credit Agreement. See, e.g., Lee v. Marvel Enters., Inc., 386 F. Supp. 2d
235, 244 (S.D.N.Y. 2005) (noting that a court should avoid interpretations that result in an absurdity, an
injustice, or an inequitable or unusual result).
2. Only As A Result of The Purported Fourth Amendment Could
Defendants Claim To Be Requisite Lenders.
If any doubt remains about Defendants inability to become Requisite Lenders under the Third
Amendment, the Court need only look to the Purported Fourth Amendment. If Defendants were truly
permitted to become Requisite Lenders under the Third Amendment, there would be no need for the
Purported Fourth Amendment to rollback the prohibitions on Defendants ability to exercise voting rights.

10
See, e.g., 6.13 Amendments or Waivers of Organizational Documents and Certain Agreements ("No Credit Party
shall . . . agree to any amendment . . . to any of its Organizational Documents . . . without in each case obtaining the
prior written consent of Requisite Lenders . . ."); 8.1 Defaults ("upon any other Event of Default, at the request of (or
with the consent of) Requisite Lenders . . ."); 10.5 Amendments ("no amendment shall be effective . . . without the
written consent of the Requisite Lenders).


10

The Purported Fourth Amendment eliminates these restrictions from the Third Amendment by amending
the definition of Term Loan Exposure specifically to strike the provision disregarding Defendants Term
Loans from the calculation of the definition. (Ehrlich Aff., Ex. 6, 2.1(b).) The Purported Fourth
Amendment also removes the fundamental restriction on Defendants' ability to acquire over 25% of the
outstanding Term Loans and no longer requires Defendants to contribute capital of at least 50% of the
aggregate principal amount of any Term Loans so acquired. (Ehrlich Aff., Ex. 6, 2.7(c), 2.7(e).)
Obviously, the only reason this was all done was because the Third Amendment prevented Defendants
from controlling Allieds debt by acting as Requisite Lenders. The Purported Fourth Amendment itself
puts the lie to Defendants position. (See Opening Br. at 12-13, 17-18.)
D. All Lenders Were Affected By The Purported Fourth Amendment, Which For
The First Time Permitted Defendants To Become Requisite Lenders.
Defendants argue that the Credit Agreement and Third Amendment did not preclude Defendants
from being Requisite Lenders. (Opp. Br. at 22-23.) As set forth in pages 9-11 of Plaintiffs Opening Brief,
a review of the plain terms of the Credit Agreement and Third Amendment shows that nothing could be
further from the truth. The restrictions set forth in these agreements precluded Defendants from ever
becoming the Requisite Lenders.
11

It cannot reasonably be disputed that all Lenders, including Plaintiffs, were affected by the
Purported Fourth Amendment, which for the first time permitted Defendants, Allied's controlling
shareholder, to become Allied's Requisite Lender. Therefore, under Section 10.5(b)(ix), all Lenders

11
Defendants contend that the change to the definition of Eligible Assignee is what allowed Defendants to become the
Requisite Lenders and that this change took place in the Third Amendment where Plaintiffs say unanimous Lender
consent was not needed. It is not correct that the change to Eligible Assignee allowed Defendants to become
Requisite Lenders; all this change allowed Defendants to do was to buy loans, but because the Third Amendment placed
strict restrictions on Defendants ability to both purchase Term Loans and to count those loans as part of the Term Loan
Exposure, and prohibited Defendants from voting these loans, there was no danger that Defendants could ever become
the Requisite Lender. Thus, the Lenders were not affected by the Third Amendment. It was only in the Purported
Fourth Amendment, where these strict restrictions were removed, principally by the amendment to the definition of
Term Loan Exposure, that Defendants were able to become Requisite Lenders and the Lenders were first affected, thus
requiring unanimous Lender consent. The propriety of this amendment was immediately challenged by Plaintiffs, who
requested the Administrative Agent not act on the direction of Defendants. (See Grant Aff. Ex. J.) "Grant Aff." refers
to the Affidavit of Adam K. Grant, dated September 25, 2012, submitted in support of Defendants' Opposition.


11

needed to give their written consent for the Purported Fourth Amendment to become valid. There is no
dispute that such consent was neither sought nor obtained.
12
The Purported Fourth Amendment should
thus be declared null and void.
13

II. DEFENDANTS AFFIRMATIVE DEFENSES FAIL AS A MATTER OF LAW.
A. The Settlement Agreement Forecloses Defendants Res Judicata Defense.
Defendants argue that summary judgment should not be granted because fact discovery is
necessary for its res judicata defense, which is based upon the settlement of the Georgia Action, a case in
which Plaintiffs were not parties. (Opp. Br. at 9-17.) Once again, Defendants improperly seek recourse to
extrinsic evidence in an effort to create an ambiguity where none exists. The Settlement Agreement
which was negotiated and executed by Defendants unequivocally demonstrates that any claims by
Plaintiffs were not dismissed in the Georgia Action.
Under both Georgia and New York law,
14
the Court is to look to the settlement agreement in order
to determine the impact of a consensual dismissal. See, e.g., Brown & Williamson Tobacco Corp. v.
Gault, 280 Ga. 420, 423-24 (2006) (looking to settlement agreement to determine scope of previous
adjudication for res judicata purposes); City of Centerville v. City of Warner Robins, 270 Ga. 183, 186-87

12
Defendants assert that Plaintiffs were aware of the discussions leading up to the Purported Fourth Amendment and
did not object. Plaintiffs disagree with these assertions; however, they are irrelevant. The Credit Documents require the
affirmative written consent of the affected Lenders; there can be no doubt that, even if Plaintiffs knew of the discussions
leading up to the Purported Fourth Amendment, they never consented to such amendment, nor were they even asked to
do so. Further, these alleged actions by Plaintiffs could not create a waiver of Plaintiffs rights. (See Sections II.B, II.C,
infra.)
13
Defendants argue in the alternative that if the amended meaning of Term Loan Exposure did, as Plaintiffs' assert,
have the effect of amending the definition of Requisite Lenders, then only the section that amends the definition of
Term Loan Exposure should be severed from the Purported Fourth Amendment. (Opp. Br. at 23-25.) That result is not
defensible. The clear purpose of the entire Purported Fourth Amendment was to remove all of the restrictions put in
place to prevent Defendants from acquiring any material portion of the Obligations, exercising any rights associated
with those Obligations, or becoming Requisite Lenders. The change to Term Loan Exposure is a key component of this
highly integrated agreement that had a single intent to allow Defendants to control the debt and thus cannot be
severed. See e.g., Rotblut v. Conn. Gen. Life Ins. Co., 226 A.D.2d 617, 617 (2d Dep't 1996); ("As a general rule, a
contract is entire when by its terms, nature, and purpose, it contemplates and intends that each and all of its parts and the
consideration therefore shall be common each to the other and interdependent.")
14
The Settlement Agreement expressly provides that New York law governs the Settlement Agreement. (Grant Aff.,
Ex. I, 18.) Under New York law, the intent of the parties is to be determined, if possible, solely by reference to the
four corners of the agreement. See Triax Capital Advisors, LLC v. Rutter, 83 A.D.3d 490, 493 (1st Dep't 2011).


12

(1998) (interpreting the parties' previous consent order to determine its preclusive effect); Shea v. Am.
Tobacco Co., 73 A.D.3d 730, 732 (2d Dept 2010) (analyzing parties settlement agreement as well as
consent decree to determine the preclusive effect of prior suit); Fabiano v. Philip Morris Inc., 54 A.D.3d
146, 151-52 (1st Dept 2008) (determining preclusive effect based on settlement agreement).
15
Here, the
Settlement Agreement, which required the parties to "dismiss their respective claims in the Action with
prejudice upon the execution of this [Settlement] Agreement" provided the basis of the dismissal of the
Georgia Action. (Grant Aff., Ex. I, 2.)
16

No reading of the Settlement Agreement could lead to the conclusion that CIT was settling any
claims other than its own in the Georgia Action. First, CIT expressly limited the release it gave under the
Settlement Agreement to itself:
This limited release is made solely by CIT and its personal
representatives, successors and assigns on its own behalf and not in a
representative capacity on behalf of any other person and does not
constitute a release by any other person.

(Grant Aff., Ex. I, 1(b).) Next, the parties to the Settlement Agreement, including Defendants here,
made clear that nothing in the Settlement Agreement released any claims belonging to anyone other than
the parties to the Settlement Agreement:
For the avoidance of doubt and notwithstanding anything herein to the
contrary, nothing in this Agreement shall release any claims, actions,
causes of action . . . whatsoever belonging to any person or entity other
than the Parties to this Agreement (and each of their respective personal
representatives, successors and assigns)

15
Defendants cite to Terry v. State Farm Fire & Cas. Ins. Co., 269 Ga. 777 (1998), for the proposition that the Court
should look only to a form stipulation of dismissal filed with the court in Georgia to determine the scope of preclusion
and completely disregard the Settlement Agreement. (Opp. Br. at 13-14.) In Terry, unlike here, there was no written
settlement agreement for the court even to consider. As the authority cited by Plaintiffs indicates, had there been a
settlement agreement, the Georgia courts would have looked to it to determine the preclusive effect of the settlement.
16
Even accepting Defendants strained assertion that this Court is limited to the form stipulation of dismissal to
determine the preclusive effect of CITs settlement, this form stipulation is only between the parties to the Georgia
Action (Plaintiffs were not a party thereto), and CIT signs the dismissal in its individual capacity. (Grant Aff., Ex. F, at
3.) There is no indication on the face of the form stipulation of dismissal that CIT was acting on behalf of anyone other
than itself in settling the Georgia Action (as opposed to the Settlement Agreement which expressly makes clear that CIT
is only settling its own claims).


13


(Grant Aff., Ex. I, 1(d).) Further, as the signature blocks in the Settlement Agreement show, CIT signs,
through its attorneys, only in its individual capacity. (Grant Aff., Ex. I, at 19.)
17

Defendants also argue that Georgia law required that Plaintiffs to appear in the Georgia Action to
attack the judgment either prior to its entry or by subsequent proceedings. (Opp. Br. at 13.)
18
However,
this argument is baseless because Plaintiffs had no reason to attack the judgment since, as demonstrated
above, CIT was only dismissing its own claims and not any claims belonging to Plaintiffs.
Finally, Defendants several times misstate the record of the argument before the Court on their
prior motion to dismiss on res judicata grounds, but the transcript is clear. The Court never said
Defendants had a valid res judicata defense nor that they had the right to discovery on that defense. Once
the Court reviewed the Settlement Agreement, the Defendants motion to dismiss was summarily denied.
(Grant Aff., Ex. M, Tr. at 29:15-30:03.)
19
The unambiguous terms of the Settlement Agreement
demonstrate that Plaintiffs claims have not been released or dismissed. (See Grant Aff., Ex. I, 1(d).) No
amount of discovery will alter these express terms or change the fact that the res judicata affirmative
defense fails as a matter of law.
B. The Credit Agreement's "No Waiver" Provision Precludes Defendants From
Asserting Waiver or Estoppel.
Similarly, Plaintiffs are entitled to summary judgment on Defendants affirmative defenses of

17
Footnote 8 of Defendants Opposition proves Plaintiffs case on this point. (See Opp. Br. at 15 n.8.) Where the
parties to the Settlement Agreement wanted to make it clear that CIT was agreeing to take action in its agency capacity,
they said so specifically. Conversely, as the release provision indicates, where CIT was acting in its individual capacity,
they said so specifically. The parties obviously knew how and when that distinction was to be made and drafted
accordingly.
18
Defendants cannot cite to any Georgia authority to support this proposition, but only to a comment to the Restatement
(2d) of Judgments which, since Defendants cannot cite to a case for this proposition, apparently has never been cited by
any Georgia court.
19
Defendants similarly misstate language in the affidavit of Richard Ehrlich, by claiming that Mr. Ehrlich "admitted
CIT's role as Plaintiffs' agent throughout the Georgia Action." (Opp. Br. at 12.) Defendants omitted Mr. Ehrlich's next
sentence that made clear that any notion that CIT was acting as agent was invalidated by CIT's negotiation and signing
of the Settlement Agreement. ("The aforesaid settlement agreement changed that.") (Grant Aff., Ex. L, 12.) Even
though this extrinsic evidence is irrelevant, it is noteworthy to show how far Defendants stretch to try to save their res
judicata argument.


14

waiver and equitable estoppel because Defendants cannot establish the essential elements of the defense.
See, e.g., Blitman Constr. Corp. v. Ins. Co. of N. Am., 66 N.Y.2d 820, 823 (1985) (reversing denial of
summary judgment where non-moving party could raise no triable issue concerning waiver or estoppel).
These defenses fail in the face of the unambiguous language of Section 10.9 of the Credit Agreement, the
"no waiver" provision, which provides that:
No failure or delay on the part of any Agent or any Lender in the exercise
of any power, right or privilege hereunder or under any other Credit
Document shall impair such power, right or privilege or be construed to be
a waiver of any default or acquiescence therein, nor shall any single or
partial exercise of any such power, right or privilege preclude other or
further exercise thereof or of any other power, right or privilege. . . . Any
forbearance or failure to exercise, and any delay in exercising, any right,
power or remedy hereunder shall not impair any such right, power or
remedy or be construed to be a waiver thereof, nor shall it preclude the
further exercise of any such right, power or remedy.

(Ehrlich Aff., Ex. 1, 10.9.) No waiver" provisions, such as Section 10.9, are uniformly enforced in
New York. Awards.com v. Kinkos, Inc., 42 A.D.3d 178, 188 (1st Dept 2007). As a result of this
provision, even if Plaintiffs consent was necessary to approve the Third Amendment (which it was not),
Plaintiffs' alleged acquiescence therein in no way impairs their right to insist that the Purported Fourth
Amendment be approved by unanimous consent of all affected Lenders. This affirmative defense of
waiver therefore fails as a matter of law.
The "no waiver" provision is equally fatal to Defendants estoppel defense. Equitable estoppel is
imposed by law to prevent the enforcement of rights which would work fraud or injustice upon the party
against whom the rights are enforced where that party has, in justifiable reliance upon the opposing
partys words or conduct, . . . been misled into acting upon the belief that such enforcement would not be
sought. Fundamental Port. Advisors, Inc. v. Toqueville Asset Mgmt., 7 N.Y.3d 96, 106 (2006) (emphasis
added). As a matter of law, a "no waiver" provision, such as Section 10.9, makes any claimed reliance not
justifiable. See Antonini v. Petito, 96 A.D.3d 446, 447 (1st Dept 2012) (finding no merit to waiver and
estoppel defenses and granting summary judgment in light of the agreements no waiver provision);


15

Crossland Sav., FSB v. Loguidice-Chatwal Real Estate Inv. Co., 171 A.D.2d 457, 457 (1st Dept 1991)
(affirming grant of summary judgment where the contract at issue contained a no waiver provision
because estoppel defense was thereby negated by the express terms of the parties unambiguous written
agreements"); see also Weeks Marine, Inc. v. Am. S.S. Owners Mut. Prot. and Indem. Assoc., Inc., No. 08
Civ. 9878, 2011 WL 3796331, at *13 (S.D.N.Y. Aug. 25, 2011) (finding no waiver provision bars the
assertion of an estoppel claim).
C. Even If The No-Waiver Provisions Do Not Apply, Plaintiffs' Failure To Object
To The Third Amendment Has No Relevance.
Even in the absence of Section 10.9, Defendants waiver and estoppel defenses would still fail
because there existed no contractual basis for Plaintiffs to object to the Third Amendment. (See Opening
Br. at 16, 24 n.15.) That is, the unanimous consent provision only applies to the extent language in an
amendment affects the Lenders. (Ehrlich Aff., Ex. 1, 10.5(b).) Unlike the Purported Fourth
Amendment, which permitted Defendants to become Requisite Lenders, the Third Amendment did not
affect Plaintiffs because, just like the Credit Agreement, it continued to preclude Defendants from doing
anything other than acquiring a limited amount of neutered Term Loans. Defendants could not vote their
Term Loans and certainly could not become Requisite Lenders. Therefore, Plaintiffs failure to object to
the Third Amendment could not possibly act as a waiver of Plaintiffs right to object to the Purported
Fourth Amendment, which changed the definition of Requisite Lenders in a way that materially and
adversely affected Plaintiffs by allowing Defendants to become Requisite Lenders.
CONCLUSION
For all the foregoing reasons, Plaintiffs respectfully request that this Court grant the Motion; award
Plaintiffs, pursuant to CPLR 3212, summary judgment; declare the Purported Fourth Amendment null and
void; declare that Defendants are not the Requisite Lenders under the Credit Agreement; and grant
Plaintiffs such other and further relief as is just and proper.


16


Dated: New York, New York
October 9, 2012
Respectfully submitted,

SCHULTE ROTH & ZABEL LLP

By: /s/ Robert J. Ward
Robert J. Ward
Adam Harris

919 Third Avenue
New York, New York 10022
(212) 756-2000

Attorneys for Plaintiffs





EXHIBIT T
KA.sowiTZ, BENSON, ToRRES & FRIEDMAN LLP
DAVID E. ROSS
PARTNER
212-506-1748
DROSS@KASOWITZ.COM
By Hand
The Honorable Charles E. Ramos
New York County Courthouse
60 Centre Street, Room 691
New York, NY 10007
1633 BROADWAY
NEW YORK, NEW YORK 10019-6799
212-506-1700
FACSIMILE: 212-506-1800
October 18,2012
ATLANTA
HOUSTON
NEWARK
SAN FRANCISCO
Re: BCDM Opportunity Fund II, L. P. v. Yucaipa American Alliance Fund I, LP et al.,
(Index No. 650150/2012)
Dear Justice Ramos:
We are counsel to Defendants in the above-captioned action. We write to advise you of a
motion and related Complaint that were filed today, by Allied Systems Holdings, Inc. ("Allied"),
the debtor, in Delaware bankruptcy court. In the Complaint and the related motion, Allied seeks,
among other things, an extension of the bankruptcy stay to any litigation concerning the subject
matter of the bankruptcy complaint, which, if granted, would apply the automatic stay to the
above-captioned action.
For your convenience, enclosed please find the publicly-filed version of both the
Complaint and the Motion Of Debtor Allied Systems Holdings, Inc. for Order Extending the
Automatic Stay to Certain Non-Debtor Third Parties Pursuant to Sections 105 and 262 of the
Bankruptcy Code, without exhibits.
Encls.
cc: Robert J. Ward, Esq.
Adam Harris, Esq.
~ e r e l y ,
, ~ J. r-11
' (
' ~ "" ~
~
David E. Ross \J
EXHIBITU

RLF1 6281453v. 2
Statement of Limitations, Methodology and Disclaimer
Regarding the Debtors Schedules and Statements

Introduction. On May 17, 2012, involuntary petitions were filed against Allied Systems
Holdings, Inc. (Allied Holdings) and its subsidiary Allied Systems, Ltd. (L.P.) (Allied
Systems) under chapter 11 of the United States Code, 11 U.S.C. 101-1532 (the
Bankruptcy Code) in the United States Bankruptcy Court for the District of Delaware (the
Bankruptcy Court). On June 10, 2012,
1
the remaining debtors: Allied Automotive Group,
Inc.; Allied Freight Broker LLC; Allied Systems (Canada) Company; Axis Areta, LLC; Axis
Canada Company; Axis Group, Inc.; Commercial Carriers, Inc.; CT Services, Inc.; Cordin
Transport LLC; F.J. Boutell Driveaway LLC; GACS Incorporated; Logistic Systems, LLC;
Logistic Technology LLC; QAT, Inc.; Transport Support LLC; and Terminal Services LLC
(collectively with Allied Holdings and Allied Systems, the Debtors) filed voluntary petitions
under chapter 11 of the Bankruptcy Code with the Bankruptcy Court and, in connection
therewith, Allied Holdings and Allied Systems consented to the involuntary petitions filed
against them (collectively, the Chapter 11 Cases) on June 11, 2012. Unless otherwise
indicated, this Statement of Limitations, Methodology and Disclaimer Regarding the Debtors
Schedules and Statements (the Statement of Limitations) applies to the Schedules of Assets
and Liabilities (collectively, the Schedules) and the Statements of Financial Affairs
(collectively, the Statements and, together with the Schedules, the Schedules and
Statements) filed by each Debtor in the Bankruptcy Court.

This Statement of Limitations has been prepared pursuant to section 521 of the Bankruptcy
Code, and Rule 1007 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules)
by management of the Debtors with the assistance of its advisors and is unaudited. Therefore,
these Schedules and Statements do no purport to represent financial statements prepared in
accordance with GAAP nor are they intended to fully reconcile to the financial statements
prepared by the Debtors. This Statement of Limitations is incorporated by reference in, and
comprises an integral part of, each Debtors Schedules and Statements, and should be referred to
and reviewed in connection with any review of the Schedules and Statements.

Reservation of Rights. Unlike the consolidated financial statements, the Schedules and
Statements, except where otherwise indicated, reflect the assets and liabilities of each Debtor on a
non-consolidated basis where possible. Although management has made every reasonable effort
to ensure that the Schedules and Statements are as accurate and complete as possible based on
information that was available to them at the time of preparation, subsequent information or
discovery may result in material changes to these Schedules and Statements, and inadvertent
errors or omissions may exist. Because the Schedules and Statements contain unaudited
information, which is subject to further review and potential adjustment, there can be no
assurance that these Schedules and Statements are complete.

1
The petition date for Allied Holdings and Allied Systems is May 17, 2012, while the petition date for the
remaining Debtors is June 10, 2012. However, due to the limitations of the Debtors accounting systems, unless
otherwise identified, all data contained herein is presented as of 12:01 a.m. on June 10, 2012. Accordingly, unless
otherwise indicated, the defined term Petition Date refers to June 10, 2012.

2
RLF1 6281453v. 2

Furthermore, nothing contained in the Schedules and Statements shall constitute a waiver of
rights with respect to the any of the Chapter 11 Cases, including, but not limited to, issues
involving substantive consolidation, equitable subordination and/or causes of action arising
under the provisions of chapter 5 of the Bankruptcy Code and other relevant non-bankruptcy
laws to recover assets or avoid transfers.

Solvency. Given, among other things, the uncertainty surrounding the collection and
ownership of certain assets and the valuation and nature of certain liabilities, to the extent that a
Debtor shows more assets than liabilities, this is not an admission that the Debtor was solvent as
of its respective petition date or at any time prior to its respective petition date. Likewise, to the
extent that a Debtor shows more liabilities than assets, this is not an admission that the Debtor
was insolvent at its respective petition date or any time prior to its respective petition date.

Agreements Subject to Confidentiality. There may be instances within the Schedules and
Statements where certain information has intentionally been revised and/or redacted due to
concerns about the confidential or commercially sensitive nature of certain information or
concerns for the privacy of an individual. The revisions will be limited to only what is necessary
to protect the Debtors or relevant third parties and will provide interested parties with sufficient
information to discern the nature of the listing.

Amendment. Reasonable efforts have been made to prepare and file complete and accurate
Schedules and Statements; however, inadvertent errors or omissions may exist. The Debtors
reserve all rights to amend and/or supplement the Schedules and Statements as may be necessary
and appropriate.

Causes of Action. Despite their reasonable efforts to identify all known assets, the Debtors may
not have set forth all of their causes of action or potential causes of action against third parties as
assets in its Schedules and Statements, including, but not limited to, avoidance actions arising
under chapter 5 of the Bankruptcy Code and actions under other relevant non-bankruptcy laws to
recover assets. The Debtors reserve all of their rights with respect to any claims, causes of action
or avoidance actions they may have and neither this Statement of Limitations nor the Schedules
and Statements shall be deemed a waiver of any such claim, causes of action or avoidance action
or in any way prejudice or impair the assertion of such claims.

Claims Designations. Any failure to designate a claim on the Debtors Schedules and Statements
as disputed, contingent or unliquidated does not constitute an admission by the Debtors
that such amount is not disputed, contingent or unliquidated. The Debtors reserve the
right to dispute any claim reflected on their Schedules or Statements on any grounds, including,
but not limited to, amount, liability or classification, or to otherwise subsequently designate such
claims as disputed, contingent or unliquidated.

Net Book Value of Assets. Unless otherwise indicated, the Debtors assets and liabilities are
shown on the basis of their net book value rather than current market values. As a result,
amounts ultimately realized may vary from net book value and such variance may be material.
Exceptions to this include cash in financial accounts. Attempts to obtain current market

3
RLF1 6281453v. 2
valuations of assets would be prohibitively expensive, unduly burdensome and an inefficient use
of estate assets and, as a result, have not been attempted in connection with the preparation of the
Schedules and Statements.

Book Value and Net Book Value. As used throughout, the term Book Value, may in some
instances be abbreviated as BV. In addition, Net Book Value, may in some instances be
abbreviated as NBV.

Excluded Assets and Liabilities. The Debtors have excluded certain categories of assets and
liabilities from the Schedules and Statements, such as goodwill and deferred gains. Other
immaterial assets and liabilities may also have been excluded.

Foreign Currency. Unless otherwise indicated, all amounts are reflected in U.S. dollars except
for the amounts set forth on the Schedules and Statements of Allied Systems (Canada) Company
and Axis Canada Company, which are reflected in Canadian dollars. Transactions denominated
in foreign currency can be converted to U.S. dollars as of 12:01 a.m. on June 10, 2012.

Insiders. The Debtors have included all payments made by the Debtors over the 12 months
preceding the Petition Date to any individual deemed an insider. The term insider includes
but is not limited to: relatives of the Debtors; general partners of the Debtors or their relatives;
corporations in which the Debtors are an officer, director, or person in control; officers, directors,
and any owner of five percent or more of the voting equity or securities of a corporate Debtor
and their relatives; affiliates of the of the Debtors and insiders of such affiliates; and any
managing agent of the Debtors. 11 U.S.C. 101.

First Day Orders. Pursuant to various first day orders issued by the Court, the Debtors were
authorized to pay certain pre-petition claims, including, without limitation, claims relating to
employee wages and benefit claims, claims for taxes and fees, claims of shippers, warehousemen
and lien claimants (the First Day Orders). Accordingly, the claims listed in the Schedules and
Statements may not reflect amounts paid pursuant to the First Day Orders as they were unpaid as
of the Petition Date. To the extent claims listed on the Schedules and Statements have been or are
subsequently paid pursuant to an order of the Bankruptcy Court (including the First Day Orders),
the Debtors reserve all rights to amend or supplement their Schedules and Statements as may be
necessary and appropriate.

Unliquidated Values as Zero. Certain unknown and/or unliquidated values are reflected as
$0.00.

SOFA 14. The Debtors lease a limited amount of equipment and/or real property used in former
or current operations. Any such leases or contracts are set forth in Schedule G. The property
subject to any such leases or contracts is not reflected in either Schedule A or Schedule B as
either owned property or assets of the Debtors, and neither is the property subject to any such
leases or contracts reflected in the Statements as property or assets of third-parties within the
control of the Debtors.


4
RLF1 6281453v. 2
Schedules, Generally. Attachment or exhibit pages for certain schedules are included in the sum
of continuation pages as may be required.

Schedule D Creditors Holding Secured Claims. Except as otherwise agreed pursuant to a
stipulation or agreed order or general order entered by the Bankruptcy Court, the Debtors reserve
their rights to dispute or challenge the validity, perfection or immunity from avoidance of any
lien purported to be granted or perfected in any specific asset to a creditor listed on Schedule D.
Moreover, although the Debtors may have scheduled claims of various creditors as secured
claims, the Debtors reserve all rights to dispute or challenge the secured nature of any such
creditors claim or the characterization of the structure of any such transaction or any document
or instrument (including, without limitation, any intercreditor agreement) related to such
creditors claim. The descriptions provided in Schedule D are intended only to be a summary.
Reference to the applicable loan or security agreements and related documents is necessary for a
complete description of the collateral and the nature, extent and priority of any liens. Nothing in
this Statement of Limitations or the Schedules and Statements shall be deemed a modification or
interpretation of the terms of such agreements.

Schedule E Creditors Holding Unsecured Priority Claims. Although the Debtors may have
scheduled claims of various creditors as priority claims, the Debtors reserve all rights to dispute
or challenge the priority of any such creditors claim.

Schedule F Creditors Holding Unsecured Nonpriority Claims. The claims listed in Schedule F
arose or were incurred on various dates. In certain instances, the date on which a claim arose is
an open issue of fact. Although reasonable efforts have been made to identify the date of
incurrence of each claim, determination of each date upon which each claim in Schedule F was
incurred or arose would be unduly burdensome and cost prohibitive and, therefore, the Debtors
may not list a date for each claim listed on Schedule F. Intercompany receivables accumulate
from the beginning of time; thus, no date is listed for these payments. Also, due to their
voluminous nature, the Debtors have excluded certain workers' compensation claims that are
below the self-insured retention limits of the Debtors' workers' compensation insurance coverage
and that are being administered in the ordinary course by a third-party administrator.

Schedule G Executory Contracts. Although reasonable efforts have been made to ensure the
accuracy of Schedule G, inadvertent errors, omissions or overinclusion may have occurred. The
Debtors hereby reserve all of their rights to dispute the validity, status or enforceability of any
contract or other agreement set forth in Schedule G that may have expired or may have been
modified, amended and supplemented from time to time by various amendments, restatements,
waivers, estoppel certificates, letters and other documents, instruments and agreements which
may not be listed therein. Also, except for inadvertent errors and omissions or as otherwise
indicated in this Statement of Limitations, Schedule G contains all of the Debtors executory
contracts and agreements as of the Petition Dates. It is possible that some of the contracts or
agreements listed on Schedule G have expired or otherwise terminated pursuant to their terms
since the commencement of the Chapter 11 Cases. The presence of a contract or agreement on
Schedule G does not constitute an admission by the Debtors that such contract or agreement is an
executory contract or unexpired lease.


5
RLF1 6281453v. 2
In some cases, the same supplier or provider may appear multiple times in Schedule G. This
multiple listing is to reflect distinct agreements between the Debtors and such supplier or
provider.

Certain of the leases and contracts listed on Schedule G may contain certain renewal options,
guarantees of payment, options to purchase, rights of first refusal and other miscellaneous rights.
Such rights, powers, duties and obligations are not set forth separately on Schedule G. In
addition, the Debtors may have entered into various other types of agreements in the ordinary
course of its business, such as easements, right of way, subordination, nondisturbance and
attornment agreements, supplemental agreements, amendments/letter agreements and title
agreements. Such documents are also not set forth in Schedule G.

Also, certain of the agreements listed on Schedule G may be in the nature of conditional sales
agreements or secured financings. The Debtors reserve all of their rights to dispute or challenge
the characterization of the structure of any transaction, or any document or instrument
(including, without limitation, any intercreditor agreement) related to a creditors claim. Further,
certain of the executory agreements may not have been memorialized and could be subject to
dispute.

Finally, the Debtors have only listed insurance policies that provide the Debtors with coverage
for current year on Schedule G. Due to the sheer number of insurance policies covering prior
periods, the Debtors have not included same. Further, given the complex nature of the Debtors'
insurance coverage and cross-coverage issues as between certain Debtors, the Debtors have
listed all of the insurance policies in effect for the current year on Schedule G for each of the
Debtors.



STATEMENT OF FINANCIAL AFFAIRS
B7 (Official Form 7) (04/10)
In re Case No.
Debtor
UNITED STATES BANKRUPTCY COURT
Allied Systems Holdings, Inc. 12-11564
DISTRICT OF DELAWARE
This statement is to be completed by every debtor. Spouses filing a joint petition may file a single statement on which the information for
both spouses is combined. If the case is filed under chapter 12 or chapter 13, a married debtor must furnish information for both spouses
whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed. An individual debtor engaged in
business as a sole proprietor, partner, family farmer, or self-employed professional, should provide the information requested on this
statement concerning all such activities as well as the individuals personal affairs. To indicate payments, transfers and the like to minor
children, state the childs initials and the name and address of the childs parent or guardian, such as A.B., a minor child, by John Doe,
guardian. Do not disclose the childs name. See, 11 U.S.C. 112 and Fed.R.Bankr.P. 1007(m).

Questions 1 - 18 are to be completed by all debtors. Debtors that are or have been in business, as defined below, also must complete
Questions 19 - 25. If the answer to an applicable question is "None," mark the box labeled "None." If additional space is needed for
the answer to any question, use and attach a separate sheet properly identified with the case name, case number (if known), and the
number of the question.


Definitions

In business. A debtor is in business for the purpose of this form if the debtor is a corporation or partnership. An individual debtor is in
business for the purpose of this form if the debtor is or has been, within the six years immediately proceding the filing of this bankruptcy
case, any of the following: an officer, director, managing executive, or owner of 5 percent or more of the voting or equity securities of a
corporation; a partner, other than a limited partner, of a partnership; a sole proprietor or self-employed full-time or part-time. An individual
debtor also may be in business for the purpose of this form if the debtor engages in a trade, business, or other activity, other than as an
employee, to supplement income from the debtors primary employment.

Insider. The term insider includes but is not limited to: relatives of the debtor; general partners of the debtor and their relatives:
corporations of which the debtor is an officer, director, or person in control; officers, directors, and any owner of 5 percent or more of the
voting or equity securities of a corporate debtor and their relatives; affiliates of the debtor and insiders of such affiliates; any managing agent
of the debtor. 11 U.S.C. 101.

(if known)
None
State the gross amount of income the debtor has received from employment, trade, or profession, or from operation of the debtor's
business, including part-time activities either as an employee or in independent trade or business, from the beginning of this calendar year
to the date this case was commenced. State also the gross amounts received during the two years immediately preceding this calendar
year. (A debtor that maintains, or has maintained, financial records on the basis of a fiscal rather than a calendar year may report fiscal year
income. Identify the beginning and ending dates of the debtor's fiscal year.) If a joint petition is filed, state income for each spouse
separately. (Married debtors filing under chapter 12 or chapter 13 must state income of both spouses whether or not a joint petition is filed,
unless the spouses are separated and a joint petition is not filed.)
AMOUNT SOURCE
1. Income from employment or operation of business
$ 0.00 Revenue (01/01/2010 - 12/31/2010)
$ 0.00 Revenue (01/01/2011 - 12/31/2011)
$ 0.00 Revenue (01/01/2012 - 06/10/2012)
Page 1 of 11
STATEMENT OF FINANCIAL AFFAIRS
In re Case No. Allied Systems Holdings, Inc. 12-11564
None
State the amount of income received by the debtor other than from employment, trade, profession, or operation of the debtors business
during the two years immediately preceding the commencement of this case. Give particulars. If a joint petition is filed, state income for
each spouse separately. (Married debtors filing under chapter 12 or chapter 13 must state income for each spouse whether or not a joint
petition is filed, unless the spouses are separated and a joint petition is not filed.)
AMOUNT SOURCE
2. Income other than from employment or operation of business
$6,665,138.28 Investment income (01/01/2010 - 12/31/2010)
$ 0.00 Gain/(loss) on sale of assets (01/01/2010 - 12/31/2010)
$ 0.00 Investment income (01/01/2011 - 12/31/2011)
$ 0.00 Gain/(loss) on sale of assets (01/01/2011 - 12/31/2011)
$ 3,953.65 Investment income (01/01/2012 - 06/10/2012)
$ 0.00 Gain/(loss) on sale of assets (01/01/2012 - 06/10/2012)
None
Complete a. or b., as appropriate, and c.
a. Individual or joint debtor(s) with primarily consumer debts: List all payments on loans, installment purchases of goods or services, and
other debts to any creditor made within 90 days immediately preceding the commencement of this case unless the aggregate value of all
property that constitutes or is affected by such transfer is less than $600. Indicate with an asterisk (*) any payments that were made to a
creditor on account of a domestic support obligation or as part of an alternative repayment schedule under a plan by an approved nonprofit
budgeting and creditor counseling agency. (Married debtors filing under chapter 12 or chapter 13 must include payments by either or both
spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.)
X
NAME AND ADDRESS OF CREDITORS
DATES OF
PAYMENTS AMOUNT PAID
AMOUNT STILL
OWING
3. Payment to creditors
None
b. Debtor whose debts are not primarily consumer debts: List each payment or other transfer to any creditor made within 90 days
immediately preceding the commencement of the case unless the aggregate value of all property\that constitutes or is affected by such
transfer is less than $5,850*. If the debtor is an individual, indicate with an asterisk (*) any payments that were made to a creditor on
account of a domestic support obligation or as part of an alternative repayment schedule under a plan by an approved nonprofit budgeting
and credit counseling agency. (Married debtors filing under chapter 12 or chapter 13 must include payments and other transfers by either or
both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.)
NAMES AND ADDRESS OF CREDITOR
DATES OF
PAYMENTS/
TRANSFERS
AMOUNT PAID
OR VALUE OF
TRANSFERS
AMOUNT STILL
OWING
Please See Exhibit for SOFA 3b
None
c. All debtors: List all payments made within one year immediately preceding the commencement of this case to or for the benefit of
creditors who are or were insiders. (Married debtors filing under chapter 12 or chapter 13 must include payments by either or both spouses
whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.)
NAMES AND ADDRESS OF CREDITOR AND
RELATIONSHIP TO DEBTOR
DATES OF
PAYMENT AMOUNT PAID
AMOUNT STILL
OWING
See SOFA 3c Exhibit
* Amount subject to adjustment on 4/01/13, and every three years thereafter with respect to cases commenced on or after the date of adjustment.
Page 2 of 11
STATEMENT OF FINANCIAL AFFAIRS
In re Case No. Allied Systems Holdings, Inc. 12-11564
None
a. List all suits and administrative proceedings to which the debtor is or was a party within one year immediately preceding the filing of this
bankruptcy case. (Married debtors filing under chapter 12 or chapter 13 must include information concerning either or both spouses whether
or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.)
CAPTION OF SUIT
AND CASE NUMBER
NATURE OF
PROCEEDING
COURT OR AGENCY
AND LOCATION
STATUS OR
DISPOSITION
4. Suits and administrative proceedings, executions, garnishments and attachments
See Exhibit SOFA 4a
None
b. Describe all property that has been attached, garnished or seized under any legal or equitable process within one year immediately
preceding the commencement of this case. (Married debtors filing under chapter 12 or chapter 13 must include information concerning
property of either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.)
X
NAME AND ADDRESS OF
PERSON FOR WHOSE BENEFIT
PROPERTY WAS SEIZED DATE OF SEIZURE
DESCRIPTION AND VALUE OF
PROPERTY
None
List all property that has been repossessed by a creditor, sold at a foreclosure sale, transferred through a deed in lieu of foreclosure or
returned to the seller, within one year immediately preceding the commencement of this case. (Married debtors filing under chapter 12 or
chapter 13 must include information concerning property of either or both spouses whether or not a joint petition is filed, unless the spouses
are separated and a joint petition is not filed.)
X
NAME AND ADDRESS OF
CREDITOR OR SELLER
DATE OF REPOSSESSION,
FORECLOSURE SALE,
TRANSFER OF RETURN
DESCRIPTION AND VALUE OF
PROPERTY
5. Repossessions, foreclosures and returns
None
a. Describe any assignment of property for the benefit of creditors made within 120 days immediately preceding the commencement of this
case. (Married debtors filing under chapter 12 or chapter 13 must include any assignment by either or both spouses whether or not a joint
petition is filed, unless the spouses are separated and a joint petition is not filed.)
X
NAME AND ADDRESS OF
ASSIGNEE DATE OF ASSIGNMENT
TERMS OF ASSIGNMENT OR
SETTLEMENT
6. Assignments and receiverships
None
b. List all property which has been in the hands of a custodian, receiver, or court-appointed official within one year immediately preceding
the commencement of this case. (Married debtors filing under chapter 12 or chapter 13 must include information concerning property of
either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.)
X
NAME AND ADDRESS OF
CUSTODIAN
NAME AND LOCATION OF
COURT CASE TITLE & NUMBER
DATE OF
ORDER
DESCRIPTION AND VALUE OF
PROPERTY
Page 3 of 11
STATEMENT OF FINANCIAL AFFAIRS
In re Case No. Allied Systems Holdings, Inc. 12-11564
None
List all gifts or charitable contributions made within one year immediately preceding the commencement of this case except ordinary and
usual gifts to family members aggregating less than $200 in value per individual family member and charitable contributions aggregating
less than $100 per recipient. (Married debtors filing under chapter 12 or chapter 13 must include gifts or contributions by either or both
spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.)
NAME AND ADDRESS OF PERSON OR
ORGANIZATION
RELATIONSHIP TO
DEBTOR, IF ANY DATE OF GIFT
DESCRIPTION AND VALUE OF
GIFT
7. Gifts
Jacqueline, Inc.
6845 S. Constance Ave.
Chicago, IL 60649
01/19/2012 Charitable Contribution
$100,000.00
Teamsters Local 299
2741 Trumbell Ave.
Detroit, MI 48216
06/23/2011 Charitable Contribution
$770.00
None
List all losses from fire, theft, other casualty or gambling within one year immediately preceding the commencement of this case or since
the commencement of this case. (Married debtors filing under chapter 12 or chapter 13 must include losses by either or both spouses
whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.)
X
DESCRIPTION AND VALUE OF PROPERTY
DESCRIPTION OF CIRCUMSTANCE AND, IF LOSS
WAS COVERED IN WHOLE OR IN PART BY
INSURANCE, GIVE PARTICULARS DATE OF LOSS
8. Losses
None
List all payments made or property transferred by or on behalf of the debtor to any persons, including attorneys, for consultation concerning
debt consolidation, relief under the bankruptcy law or preparation of a petition in bankruptcy within one year immediately preceding the
commencement of this case.
NAME AND ADDRESS OF PAYEE
DATE OF PAYMENT,
NAME OF PAYER
IF OTHER THAN DEBTOR
AMOUNT OF MONEY OR DESCRIPTION
AND VALUE OF PROPERTY
9. Payments related to debt counseling or bankruptcy
Richards, Layton & Finger, P.A.
One Rodney Square
920 North King Street
Wilmington, DE 19801
05/23/2012
06/06/2012
$50,000.00
$35,000.00
Rothschild
1251 Avenue of the Americas
51st Floor
New York, NY 10020
06/08/2012 $150,000.00
Rust Consulting/Omni Bankruptcy
5955 DeSoto Avenue, Suite #100
Woodland Hills, CA 91367
06/06/2012
06/08/2012
$20,000.00
$6,109.55
Sitrick Brincko Group
1840 Century Park East
Suite 800
Los Angeles, CA 90067-2109
06/06/2012
06/08/2012
$25,000.00
$25,000.00
Troutman Sanders LLP
600 Peachtree Street, NE Suite 520
Atlanta, GA 30308
Prepetition $623,529.00
Page 4 of 11
STATEMENT OF FINANCIAL AFFAIRS
In re Case No. Allied Systems Holdings, Inc. 12-11564
None
a. List all other property, other than property transferred in the ordinary course of the business or financial affairs of the debtor, transferred
either absolutely or as security within two years immediately preceding the commencement of this case. (Married debtors filing under
chapter 12 or chapter 13 must include transfers by either or both spouses whether or not a joint petition is filed, unless the spouses are
separated and a joint petition is not filed.)
X
NAME AND ADDRESS OF TRANSFERREE,
RELATIONSHIP TO DEBTOR DATE
DESCRIBE PROPERTY TRANSFERRED
AND VALUE RECEIVED
10. Other transfers
None
b. List all property transferred by the debtor within ten years immediately preceding the commencement of this case to a self-settled trust or
similar device of which the debtor is a beneficiary.
X
NAME OF TRUST OR OTHER
DEVICE
DATE(S) OF
TRANSFER(S)
AMOUNT OF MONEY OR DESCRIPTION AND VALUE OF
PROPERTY OR DEBTOR'S INTEREST IN PROPERTY
None
List all financial accounts and instruments held in the name of the debtor or for the benefit of the debtor which were closed, sold, or
otherwise transferred within one year immediately preceding the commencement of this case. Include checking, savings, or other financial
accounts, certificates of deposit, or other instruments; shares and share accounts held in banks, credit unions, pension funds, cooperatives,
associations, brokerage houses and other financial institutions. (Married debtors filing under chapter 12 or chapter 13 must include
information concerning accounts or instruments held by or for either or both spouses whether or not a joint petition is filed, unless the
spouses are separated and a joint petition is not filed.)
X
NAME AND ADDRESS OF
INSTITUTION
TYPE OF ACCOUNT, LAST FOUR
DIGITS OF ACCOUNT NUMBER, AND
AMOUNT OF FINAL BALANCE
AMOUNT AND DATE OF SALE OR
CLOSING
11. Closed financial records
None
List each safe deposit or other box or depository in which the debtor has or had securities, cash, or other valuables within one year
immediately preceding the commencement of this case. (Married debtors filing under chapter 12 or chapter 13 must include boxes or
depositories of either or both spouses whether or not a joint petition is filed, unless the spouses are separated and a joint petition is not
filed.)
X
NAME AND ADDRESS OF BANK
OR OTHER DEPOSITORY
NAME AND ADDRESSES OF
THOSE WITH ACCESS TO THE
BOX OR DEPOSITORY DESCRIPTION OF CONTENTS
DATE OF
TRANSFER OR
SURRENDER,
IF ANY
12. Safe deposit boxes
None
List all setoffs made by any creditor, including a bank, against a debt or deposit of the debtor within 90 days preceding the commencement
of this case. (Married debtors filing under chapter 12 or chapter 13 must include information concerning either or both spouses whether or
not a joint petition is filed, unless the spouses are separated and a joint petition is not filed.)
X
NAME AND ADDRESS OF CREDITOR
DATE OF
SETOFF AMOUNT OF SETOFF
13. Setoffs
Page 5 of 11
STATEMENT OF FINANCIAL AFFAIRS
In re Case No. Allied Systems Holdings, Inc. 12-11564
None
List all property owned by another person that the debtor holds or controls.
NAME AND ADDRESS OF OWNER DESCRIPTION AND VALUE OF PROPERTY LOCATION OF PROPERTY
14. Property held for another person
Vehicles hauled/stored in the ordinary course of business.
None
If debtor has moved within three years immediately preceding the commencement of this case, list all premises which the debtor occupied
during that period and vacated prior to the commencement of this case. If a joint petition is filed, report also any separate address of either
spouse.
X
ADDRESS NAME USED DATE OF OCCUPANCY
15. Prior address of debtor
None
If the debtor resides or resided in a community property state, commonwealth, or territory (including Alaska, Arizona, California, Idaho,
Louisiana, Nevada, New Mexico, Puerto Rico, Texas, Washington, or Wisconsin) within eight years immediately preceding the
commencement of the case, identify the name of the debtors spouse and of any former spouse who resides or resided with the debtor in
the community property state.
X
NAME
16. Spouses and Former Spouses
None
For the purpose of this question, the following definitions apply:
"Environmental Law" means any federal, state, or local statute or regulation regulating pollution, contamination, releases of hazardous or
toxic substances, wastes or material into the air, land, soil, surface water, groundwater, or other medium, including, but not limited to,
statutes or regulations regulating the cleanup of these substances, wastes, or material.
"Site" means any location, facility, or property as defined under any Environmental Law, whether or not presently or formerly owned or
operated by the debtor, including, but not limited to, disposal sites.
"Hazardous Material" means anything defined as a hazardous waste, hazardous substance, toxic substance,
hazardous material, pollutant, or contaminant or similar term under an Environmental Law.
X
17. Environmental Information
None
a. List the name and address of every site for which the debtor has received notice in writing by a governmental unit that it may be liable or
potentially liable under or in violation of an Environmental Law. Indicate the governmental unit, the date of the notice, and, if known, the
Environmental Law:
X
SITE NAME AND ADDRESS
NAME AND ADDRESS OF
GOVERNMENTAL UNIT DATE OF NOTICE ENVIRONMENTAL LAW
Page 6 of 11
STATEMENT OF FINANCIAL AFFAIRS
In re Case No. Allied Systems Holdings, Inc. 12-11564
None
b. List the name and address of every site for which the debtor provided notice to a governmental unit of a release of Hazardous Material.
Indicate the governmental unit to which the notice was sent and the date of the notice.
X
SITE NAME AND ADDRESS
NAME AND ADDRESS OF
GOVERNMENTAL UNIT DATE OF NOTICE ENVIRONMENTAL LAW
None
c. List all judicial or administrative proceedings, including settlements or orders, under any Environmental Law with respect to which the
debtor is or was a party. Indicate the name and address of the governmental unit that is or was a party to the proceeding, and the docket
number.
X
NAME AND ADDRESS OF GOVERNMENTAL
UNIT
DOCKET
NUMBER STATUS OR DISPOSITION
None
a. If the debtor is an individual, list the names, addresses, taxpayer identification numbers, nature of the businesses, and beginning and
ending dates of all businesses in which the debtor was an officer, director, partner, or managing executive of a corporation, partner in a
partnership, sole proprietor, or was self-employed in a trade, profession, or other activity either full- or part-time within six years immediately
preceding the commencement of this case, or in which the debtor owned 5 percent or more of the voting or equity securities within six years
immediately preceding the commencement of this case.
If the debtor is a partnership, list the names, addresses, taxpayer identification numbers, nature of the businesses, and beginning and
ending dates of all businesses in which the debtor was a partner or owned 5 percent or more of the voting or equity securities, within six
years immediately preceding the commencement of this case.
If the debtor is a corporation, list the names, addresses, taxpayer identification numbers, nature of the businesses, and beginning and
ending dates of all businesses in which the debtor was a partner or owned 5 percent or more of the voting or equity securities within six
years immediately preceding the commencement of this case.
NAME AND ADDRESS
LAST FOUR DIGITS
OF SOC. SEC.
NO./COMPLETE EIN
OR OTHER
TAXPAYER I.D. NO. NATURE OF BUSINESS
BEGINNING AND ENDING
DATES OF OPERATION
18. Nature, location, and name of business
AH Industries Inc.
2302 Parklake Drive, Bldg. 15, Ste. 600
Atlanta, GA 30345
(formerly 100% Owned)
898210760
Canadian Business
Number
Administration 1989 - 2008
Allied Automotive Group, Inc.
2302 Parklake Drive, Bldg. 15, Ste. 600
Atlanta, GA 30345
100% Ownership
58-2201081 Vehicle Transportation 1995 - Current
Axis Group, Inc.
2302 Parklake Drive, Bldg. 15, Ste. 600
Atlanta, GA 30345
100% Ownership
58-2204628 Automotive Logistic
Solutions
1995 - Current
Haul Insurance Limited
2302 Parklake Drive, Bldg. 15, Ste. 600
Atlanta, GA 30345
100% Ownership
58-2292798 Captive Insurance
Company
1997 - Current
Page 7 of 11
STATEMENT OF FINANCIAL AFFAIRS
In re Case No. Allied Systems Holdings, Inc. 12-11564
None
b. Identify any business listed in response to subdivision a., above, that is "single asset real estate" as defined in 11 U.S.C. 101.
X
NAME ADDRESS
The following questions are to be completed by every debtor that is a corporation or partnership and by any individual debtor who is or
has been, within six years immediately preceding the commencement of this case, any of the following: an officer, director, managing
executive, or owner of more than 5 percent of the voting or equity securities of a corporation; a partner, other than a limited partner, of a
partnership, a sole proprietor, or self-employed in a trade, profession, or other activity, either full- or part-time.
(An individual or joint debtor should complete this portion of the statement only if the debtor is or has been in business, as defined
above, within six years immediately preceding the commencement of this case. A debtor who has not been in business within those six
years should go directly to the signature page.)
None
a. List all bookkeepers and accountants who within two years immediately preceding the filing of this bankruptcy case kept or supervised
the keeping of books of account and records of the debtor.
NAME AND ADDRESS DATES SERVICES RENDERED
19. Books, records and financial statements
Vingenzo Pagliarulo
2302 Parklake Drive
Building 15, Suite 600
Atlanta, GA 30345
06/01/2011 - 05/25/2012
Jacqueline Deese
2302 Parklake Drive
Building 15, Suite 600
Atlanta, GA 30345
06/11/2010 - 05/14/2011
Lorraine Chilvers
2302 Parklake Drive
Building 15, Suite 600
Atlanta, GA 30345
05/16/2012 - Current
Scott Macaulay
2302 Parklake Drive
Building 15, Suite 600
Atlanta, GA 30345
06/11/2010 - Current
None
b. List all firms or individuals who within two years immediately preceding the filing of this bankruptcy case have audited the books of
account and records, or prepared a financial statement of the debtor.
NAME ADDRESS DATES SERVICES RENDERED
Grant Thornton 1100 Peachtree Street NE
Suite 1200
Atlanta, GA 30309
Various Dates
Page 8 of 11
STATEMENT OF FINANCIAL AFFAIRS
In re Case No. Allied Systems Holdings, Inc. 12-11564
None
c. List all firms or individuals who at the time of the commencement of this case were in possession of the books of account and records of
the debtor. If any of the books of account and records are not available, explain.
NAME ADDRESS
Deloitte Tax LLP 191 Peachtree Street NE, Suite 2000
Atlanta, Georgia 30303
Grant Thornton 1100 Peachtree Street NE, Suite 1200
Atlanta, GA 30309
PWC 10 Tenth Street, Suite 1400
Atlanta, GA 30309-3851
None
d. List all financial institutions, creditors and other parties, including mercantile and trade agencies, to whom a financial statement was
issued by the debtor within two years immediately preceding the commencement of this case.
NAME AND ADDRESS DATE ISSUED
The Debtor and its related companies have issued numerous financial statements in the recent past. Because they routinely supply them to
various parties they do not maintain a list.
None
a. List the dates of the last two inventories taken of your property, the name of the person who supervised the taking of each inventory, and
the dollar amount and basis of each inventory.
X
DATE OF INVENTORY INVENTORY SUPERVISOR
DOLLAR AMOUNT OF INVENTORY
(SPECIFY COST, MARKET OR
OTHER BASIS)
20. Inventories
None
b. List the name and address of the person having possession of the records of each of the inventories reported in a., above.
X
DATE OF INVENTORY NAME AND ADDRESS OF CUSTODIAN OF INVENTORY RECORDS
None
a. If the debtor is a partnership, list the nature and percentage of partnership interest of each member of the partnership.
X
NAME AND ADDRESS NATURE OF INTEREST PERCENTAGE OF INTEREST
21. Current Partners, Officers, Directors and Shareholders
Page 9 of 11
STATEMENT OF FINANCIAL AFFAIRS
In re Case No. Allied Systems Holdings, Inc. 12-11564
None
b. If the debtor is a corporation, list all officers and directors of the corporation, and each stockholder who directly or indirectly owns,
controls, or holds 5 percent or more of the voting or equity securities of the corporation.
NAME AND ADDRESS TITLE
NATURE AND PERCENTAGE OF
STOCK OWNERSHIP
Brian Cullen
Duff & Phelps Securities, LLC
10100 Santa Monica Blvd.
Suite 1100
Los Angeles, CA 90067
Director
Derex Walker
Yucaipa Companies
9130 West Sunset Blvd.
Los Angeles, CA 90069
Director
Ira Tochner
Yucaipa Companies
9130 West Sunset Blvd.
Los Angeles, CA 90069
Director
Jeff Pelletier
Yucaipa Companies
9130 West Sunset Blvd.
Los Angeles, CA 90069
Director
John F. Blount
2302 Parklake Drive
Building 15, Suite 600
Atlanta, GA 30345
Chief Administrative Officer, General
Counsel, Secretary Senior Vice-President
Mark Gendregske
2302 Parklake Drive
Building 15, Suite 600
Atlanta, GA 30345
President, Chief Executive Officer, Director
Scott Macaulay
2302 Parklake Drive
Building 15, Suite 600
Atlanta, GA 30345
Chief Financial Officer - Senior Vice-
President Treasurer - Assistant Secretary
Gerlach & Co.
c/o Citibank N.A.
Custody, IC&D Lockbox
P.O. Box 7247-7057
Philadelphia, PA 19170-7057
Shareholder 6.08%
The Sea Port Group LLC
Profit Sharing Plan
360 Madison Ave. Fl. 22
New York, NY 10017-7111
Shareholder 8.35%
Yucaipa American Alliance Fund I LP
9130 W Sunset Blvd.
W Hollywood, CA 90069
Shareholder 37.24%
Yucaipa American Alliance Parallel Fund I LP
9130 W Sunset Blvd.
W Hollywood, CA 90069
Shareholder 26.10%
None
a. If the debtor is a partnership, list each member who withdrew from the partnership within one year immediately preceding the
commencement of this case.
X
NAME ADDRESS DATE OF WITHDRAWAL
22. Former partners, officers, directors and shareholders
Page 10 of 11
STATEMENT OF FINANCIAL AFFAIRS
In re Case No. Allied Systems Holdings, Inc. 12-11564
None
b. If the debtor is a corporation, list all officers, or directors whose relationship with the corporation terminated within one year immediately
preceding the commencement of this case.
NAME AND ADDRESS TITLE DATE OF TERMINATION
John L. Harrington
5252 Main Street
Pleasant Prairie, WI 53158
Officer September, 2011
None
If the debtor is a partnership or corporation, list all withdrawals or distributions credited or given to an insider, including compensation in any
form, bonuses, loans, stock redemptions, options exercised and any other perquisite during one year immediately preceding the
commencement of this case.
NAME AND ADDRESS OF RECIPIENT,
RELATIONSHIP TO DEBTOR DATE AND PURPOSE OF WITHDRAWAL
AMOUNT OF MONEY OR
DESCRIPTION AND VALUE OF
PROPERTY
23. Withdrawals from a partnership or distributions by a corporation
See SOFA 3c Exhibit
None
If the debtor is a corporation, list the name and federal taxpayer identification number of the parent corporation of any consolidated group for
tax purposes of which the debtor has been a member at any time within six years immediately preceding the commencement of the case.
X
NAME OF PARENT CORPORATION TAXPAYER IDENTIFICATION NUMBER (EIN)
24. Tax Consolidation Group
None
If the debtor is not an individual, list the name and federal taxpayer identification number of any pension fund to which the debtor, as an
employer, has been responsible for contributing at any time within six years immediately preceding the commencement of the case.
NAME OF PENSION FUND
TAXPAYER
IDENTIFICATION
NUMBER (EIN)
25. Pension Funds
Allied Defined Benefit Pension Plan 58-0360550
Allied 401(k) Retirement Plan 58-0360550
Page 11 of 11

STATEMENT OF FINANCIAL AFFAIRS

EXHIBIT 3b

PAYMENTS TO CREDITORS
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 3b - Payment to creditors
Vendor Vendor Address Address Address Pymnt Date Pymnt Amount
Accuval Associates Incorporated 10218 N. Port Washington Road Mequon, WI 53092 3/30/2012 30,000.00 $
Accuval Associates Incorporated 10218 N. Port Washington Road Mequon, WI 53092 4/20/2012 33,482.18 $
ADP Inc. P.O. Box 9001006 File # 00030-F79105 Louisville, KY 40290-1006 3/23/2012 635.25 $
ADP Inc. P.O. Box 9001006 File # 00030-F79105 Louisville, KY 40290-1006 3/23/2012 4,078.00 $
ADP Inc. P.O. Box 9001006 File # 00030-F79105 Louisville, KY 40290-1006 4/23/2012 4,002.40 $
ADP Inc. P.O. Box 9001006 File # 00030-F79105 Louisville, KY 40290-1006 4/23/2012 635.25 $
ADP Inc. P.O. Box 9001006 File # 00030-F79105 Louisville, KY 40290-1006 5/30/2012 593.25 $
ADP Inc. P.O. Box 9001006 File # 00030-F79105 Louisville, KY 40290-1006 5/30/2012 4,011.00 $
ADP Inc. P.O. Box 0500 Carol Stream, IL 60132-0500 3/14/2012 38,238.43 $
ADP Inc. P.O. Box 0500 Carol Stream, IL 60132-0500 3/15/2012 357.85 $
ADP Inc. P.O. Box 0500 Carol Stream, IL 60132-0500 3/29/2012 36,985.61 $
ADP Inc. P.O. Box 0500 Carol Stream, IL 60132-0500 4/12/2012 37,256.41 $
ADP Inc. P.O. Box 0500 Carol Stream, IL 60132-0500 4/19/2012 1,235.90 $
ADP Inc. P.O. Box 0500 Carol Stream, IL 60132-0500 4/27/2012 37,226.00 $
ADP Inc. P.O. Box 0500 Carol Stream, IL 60132-0500 5/14/2012 36,969.90 $
ADP Inc. P.O. Box 0500 Carol Stream, IL 60132-0500 5/30/2012 36,679.56 $
ADP Inc. P.O. Box 0500 Carol Stream, IL 60132-0500 6/7/2012 19,091.25 $
Alston & Bird P.O. Box 933124 Atlanta, GA 31193-3124 6/7/2012 1,960.00 $
Alston & Bird P.O. Box 933124 Atlanta, GA 31193-3124 4/20/2012 2,065.44 $
Anx Ebusiness Dept 77399 Po Box 77000 Detroit, MI 48277-0399 4/3/2012 2,771.60 $
Anx Ebusiness Dept 77399 Po Box 77000 Detroit, MI 48277-0399 5/1/2012 3,100.60 $
AT & T - 5080 P. O. Box 5080 Carol Stream, IL 60197-5080 3/29/2012 206.09 $
AT & T - 5080 P. O. Box 5080 Carol Stream, IL 60197-5080 3/29/2012 2,148.32 $
AT &T - 5019 P.O. Box 5019 Carol Stream, IL 60197-5080 3/19/2012 4,993.65 $
At&T - 5019 P.O. Box 5019 Carol Stream, IL 60197-5080 4/3/2012 15,659.33 $
At&T - 5019 P.O. Box 5019 Carol Stream, IL 60197-5080 4/18/2012 4,993.65 $
At&T - 5019 P.O. Box 5019 Carol Stream, IL 60197-5080 4/25/2012 11,655.03 $
At&T - 5019 P.O. Box 5019 Carol Stream, IL 60197-5080 5/17/2012 5,058.56 $
At&T - 5019 P.O. Box 5019 Carol Stream, IL 60197-5080 6/4/2012 13,802.00 $
AT&T - 105262 P.O. Box 105262 Atlanta, GA 30348-5262 4/3/2012 187.95 $
AT &T - 105262 P.O. Box 105262 Atlanta, GA 30348-5262 5/1/2012 173.89 $
AT &T - 5091 P.O. Box 5091 Carol Stream, IL 60197-5091 3/30/2012 56,212.96 $
AT &T - 5091 P.O. Box 5091 Carol Stream, IL 60197-5091 4/18/2012 52,363.03 $
AT &T - 5091 P.O. Box 5091 Carol Stream, IL 60197-5091 5/9/2012 48,428.93 $
AT &T Enterprises Canada Co. P.O. Box 9773 Stn A Toronto, ON M5W 1R6 5/21/2012 121.00 $
AT&T Mobility P.O. Box 6463 Carol Stream, IL 60197-6463 3/16/2012 607.41 $
AT&T Mobility P.O. Box 6463 Carol Stream, IL 60197-6463 4/18/2012 607.21 $
AT&T Mobility P.O. Box 6463 Carol Stream, IL 60197-6463 5/17/2012 607.61 $
Axiom Staffing Group 11660 Alpharetta Hwy Suite 760 Roswell, GA 30076 4/5/2012 1,540.00 $
Axiom Staffing Group 11660 Alpharetta Hwy Suite 760 Roswell, GA 30076 4/10/2012 200.00 $
Page 1 of 6
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 3b - Payment to creditors
Vendor Vendor Address Address Address Pymnt Date Pymnt Amount
Brian Cullen Chanin Capital Partners 11150 Santa Monica Blvd Los Angeles, CA 90025 4/2/2012 12,500.00 $
Chaplain Darin M Dees 38803 Talbot Line W St. Thomas, ON N5P 3T2 5/22/2012 315.32 $
Chaplain Don Maxey P.O. Box 2161 Riverview, MI 48193 3/16/2012 81.63 $
Chaplain Don Maxey P.O. Box 2161 Riverview, MI 48193 4/18/2012 130.51 $
Chaplain Don Maxey P.O. Box 2161 Riverview, MI 48193 5/9/2012 123.29 $
Chaplain Donald Crane 35 Tisbury Court Scotch Plains, NJ 07076 3/16/2012 164.75 $
Chaplain Donald Crane 35 Tisbury Court Scotch Plains, NJ 07076 4/23/2012 225.25 $
Chaplain Len Thomas 308-3055 Tomken Road Mississauga, ON L4Y 3X9 4/11/2012 158.45 $
Chaplain Len Thomas 308-3055 Tomken Road Mississauga, ON L4Y 3X9 5/9/2012 158.45 $
Chaplain Thomas D. Crisp 6836 Montrose Avenue N. Jacksonville, FL 32210-1128 3/16/2012 364.81 $
Chaplain Thomas D. Crisp 6836 Montrose Avenue N. Jacksonville, FL 32210-1128 4/5/2012 371.21 $
Chaplain William George 4524 Mt. Eden Road Shelbyville, KY 40065 3/16/2012 72.54 $
Chaplain William George 4524 Mt. Eden Road Shelbyville, KY 40065 3/29/2012 71.99 $
Chaplain William George 4524 Mt. Eden Road Shelbyville, KY 40065 4/18/2012 64.15 $
Chaplain William George 4524 Mt. Eden Road Shelbyville, KY 40065 5/9/2012 82.04 $
Corporation Service Company P. O. Box 13397 Philadelphia, PA 19101-3397 3/23/2012 305.55 $
Deloitte Financial Advisory Services Llp Po Box 2062 Carol Stream, IL 60132-2062 3/15/2012 20,000.00 $
Deloitte Management Services Lp 5140 Yonge Street Suite 1700 Toronto, ON M2N 6L7 3/21/2012 12,270.75 $
Deloitte Tax Llp Po Box 2079 Carol Stream, IL 60132-2079 3/21/2012 52,290.00 $
Derex Walker C/O Yucaipa Company 9130 W Sunset Boulevard Los Angeles, CA 90069 3/26/2012 3,269.40 $
Directv P.O. Box 60036 Los Angeles, CA 90069-0036 4/3/2012 48.99 $
Directv P.O. Box 60036 Los Angeles, CA 90069-0036 5/1/2012 48.99 $
Emcor Services P.O. Box 945617 Atlanta, GA 30394-5617 5/31/2012 354.00 $
Family Support Registry P.O. Box 1800 Case # 99-12872-5/253193774 Carrollton, GA 30112-1800 3/16/2012 333.50 $
Family Support Registry P.O. Box 1800 Case # 99-12872-5/253193774 Carrollton, GA 30112-1800 4/2/2012 333.50 $
Family Support Registry P.O. Box 1800 Case # 99-12872-5/253193774 Carrollton, GA 30112-1800 4/13/2012 333.50 $
Family Support Registry P.O. Box 1800 Case # 99-12872-5/253193774 Carrollton, GA 30112-1800 4/30/2012 333.50 $
Family Support Registry P.O. Box 1800 Case # 99-12872-5/253193774 Carrollton, GA 30112-1800 5/15/2012 333.50 $
Family Support Registry P.O. Box 1800 Case # 99-12872-5/253193774 Carrollton, GA 30112-1800 5/31/2012 333.50 $
Fred Lemon And Associates, Inc 327 Dahlonega Hwy Suite 1703-B Cumming, GA 30040 4/2/2012 3,450.00 $
Fred Lemon And Associates, Inc 327 Dahlonega Hwy Suite 1703-B Cumming, GA 30040 5/1/2012 3,450.00 $
Fred Lemon And Associates, Inc 327 Dahlonega Hwy Suite 1703-B Cumming, GA 30040 6/8/2012 3,450.00 $
Frontier Telephone P.O. Box 20550 Rochester, NY 14602-0550 3/16/2012 231.41 $
Frontier Telephone P.O. Box 20550 Rochester, NY 14602-0550 4/5/2012 233.22 $
Frontier Telephone P.O. Box 20550 Rochester, NY 14602-0550 5/9/2012 216.34 $
Global Link Communications, Inc. 3448 Progress Drive Suite A Bensalem, PA 19020 4/18/2012 992.50 $
Granite Telecommunications P.O. Box 983119 Client# 311 Boston, MA 02298-3119 4/18/2012 97.34 $
Granite Telecommunications P.O. Box 983119 Client# 311 Boston, MA 02298-3119 5/9/2012 4,731.60 $
Grant Thornton Llp P.O. Box 532019 Atlanta, GA 30353-2019 6/8/2012 50,000.00 $
Grant Thornton Llp P.O. Box 532019 Atlanta, GA 30353-2019 4/3/2012 50,000.00 $
Grant Thornton Llp P.O. Box 532019 Atlanta, GA 30353-2019 4/20/2012 50,000.00 $
Grant Thornton Llp P.O. Box 532019 Atlanta, GA 30353-2019 5/23/2012 50,000.00 $
Page 2 of 6
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 3b - Payment to creditors
Vendor Vendor Address Address Address Pymnt Date Pymnt Amount
Grant Thornton Llp P.O. Box 532019 Atlanta, GA 30353-2019 6/1/2012 50,000.00 $
Gxs P.O. Box 640371 Pittsburg, PA 15264-0371 3/19/2012 400.00 $
Gxs P.O. Box 640371 Pittsburg, PA 15264-0371 4/23/2012 400.00 $
Gxs P.O. Box 640371 Pittsburg, PA 15264-0371 5/15/2012 400.00 $
H2 Outsourcing, Ltd 2870 Peachtree Road Ste, 458 Atlanta, GA 30305 3/15/2012 1,688.70 $
H2 Outsourcing, Ltd 2870 Peachtree Road Ste, 458 Atlanta, GA 30305 3/21/2012 1,688.70 $
H2 Outsourcing, Ltd 2870 Peachtree Road Ste, 458 Atlanta, GA 30305 3/27/2012 1,662.05 $
H2 Outsourcing, Ltd 2870 Peachtree Road Ste, 458 Atlanta, GA 30305 4/3/2012 1,793.38 $
H2 Outsourcing, Ltd 2870 Peachtree Road Ste, 458 Atlanta, GA 30305 4/10/2012 1,662.05 $
H2 Outsourcing, Ltd 2870 Peachtree Road Ste, 458 Atlanta, GA 30305 4/19/2012 1,767.50 $
H2 Outsourcing, Ltd 2870 Peachtree Road Ste, 458 Atlanta, GA 30305 4/23/2012 1,662.05 $
H2 Outsourcing, Ltd 2870 Peachtree Road Ste, 458 Atlanta, GA 30305 5/1/2012 2,155.88 $
H2 Outsourcing, Ltd 2870 Peachtree Road Ste, 458 Atlanta, GA 30305 5/8/2012 1,925.00 $
H2 Outsourcing, Ltd 2870 Peachtree Road Ste, 458 Atlanta, GA 30305 5/15/2012 1,843.38 $
H2 Outsourcing, Ltd 2870 Peachtree Road Ste, 458 Atlanta, GA 30305 5/22/2012 1,925.00 $
H2 Outsourcing, Ltd 2870 Peachtree Road Ste, 458 Atlanta, GA 30305 5/25/2012 1,925.00 $
Ibm Corp Pnc Bank-Atl Lockbox Ibm Corp- Lock Box 534151 College Park, GA 30349 3/15/2012 257,072.14 $
Ibm Corp Pnc Bank-Atl Lockbox Ibm Corp- Lock Box 534151 College Park, GA 30349 3/30/2012 257,072.14 $
Ibm Corp Pnc Bank-Atl Lockbox Ibm Corp- Lock Box 534151 College Park, GA 30349 4/13/2012 258,053.59 $
Ibm Corp Pnc Bank-Atl Lockbox Ibm Corp- Lock Box 534151 College Park, GA 30349 4/30/2012 258,053.59 $
Ibm Corp Pnc Bank-Atl Lockbox Ibm Corp- Lock Box 534151 College Park, GA 30349 5/16/2012 270,772.50 $
Ibm Corp Pnc Bank-Atl Lockbox Ibm Corp- Lock Box 534151 College Park, GA 30349 5/31/2012 270,772.50 $
Infinite Conferencing Inc P.O. Box 836 Short Hills, NJ 07078 3/19/2012 1,083.23 $
Infinite Conferencing Inc P.O. Box 836 Short Hills, NJ 07078 4/18/2012 1,015.09 $
Kleinschmidt, Inc. P.O. Box 7158 Deerfield, IL 60015-7158 4/3/2012 877.45 $
Kleinschmidt, Inc. P.O. Box 7158 Deerfield, IL 60015-7158 5/1/2012 922.06 $
Kleinschmidt, Inc. P.O. Box 7158 Deerfield, IL 60015-7158 5/31/2012 951.93 $
Lenczner, Slaght, Royce, Smith, 130 Adelaide Streed Suite 2600 Toronto, ON M5H 3P5 4/27/2012 409.83 $
Maclean-Riggins Inc 2381 Ventura Road Se Smyrna, GA 30080 3/21/2012 1,050.00 $
Momentum Systems 41 Twosome Drive Suite 9 Moorestown, NJ 08057 3/28/2012 7,816.30 $
Nex Gen Communications P.O. Box 3073 Cumming, GA 30028 5/2/2012 4,563.00 $
Ogletree, Deakins, Nash, Smoak & Stewart P.O. Box 89 Columbia, SC 29202 6/7/2012 43,531.68 $
Peoplenet Communications Corps P.O. Box 1450 Nw 5489 Minneapolis, MN 55485-5489 3/19/2012 643.67 $
Peoplenet Communications Corps P.O. Box 1450 Nw 5489 Minneapolis, MN 55485-5489 4/18/2012 643.67 $
Portfolio Evaluations Inc 15 Independence Blvd 4Th Floor Warren, NJ 07059 4/23/2012 1,125.00 $
Portfolio Evaluations Inc 15 Independence Blvd 4Th Floor Warren, NJ 07059 4/23/2012 1,125.00 $
Postage By Phone Reserve Account Cmrs - Pb #0166 Citibank Lockbox Ops New Castle, DE 19720 3/20/2012 2,000.00 $
Postage By Phone Reserve Account Cmrs - Pb #0166 Citibank Lockbox Ops New Castle, DE 19720 3/22/2012 2,000.00 $
Postage By Phone Reserve Account Cmrs - Pb #0166 Citibank Lockbox Ops New Castle, DE 19720 4/3/2012 2,000.00 $
Postage By Phone Reserve Account Cmrs - Pb #0166 Citibank Lockbox Ops New Castle, DE 19720 5/22/2012 2,000.00 $
Ppi Northlake Llc 165 Township Line Road Suite 1500 Jenkintown, PA 19046 3/22/2012 81,076.05 $
Ppi Northlake Llc 165 Township Line Road Suite 1500 Jenkintown, PA 19046 4/17/2012 81,044.32 $
Page 3 of 6
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 3b - Payment to creditors
Vendor Vendor Address Address Address Pymnt Date Pymnt Amount
Pricewaterhousecoopers Llp P. O. Box 932011 Atlanta, GA 31193-2011 3/23/2012 14,884.00 $
Pricewaterhousecoopers Llp P. O. Box 932011 Atlanta, GA 31193-2011 4/3/2012 20,000.00 $
Pricewaterhousecoopers Llp P. O. Box 932011 Atlanta, GA 31193-2011 4/23/2012 14,216.90 $
Pricewaterhousecoopers Llp P. O. Box 932011 Atlanta, GA 31193-2011 5/23/2012 25,000.00 $
Pricewaterhousecoopers Llp P. O. Box 932011 Atlanta, GA 31193-2011 6/1/2012 49,797.98 $
Pricewaterhousecoopers Llp P. O. Box 932011 Atlanta, GA 31193-2011 6/8/2012 99,797.98 $
Principal Life Insurance Group Xx Des Moines, IA 50392-0001 3/22/2012 9,010.02 $
Principal Life Insurance Group Xx Des Moines, IA 50392-0001 4/2/2012 9,134.73 $
Principal Life Insurance Group Xx Des Moines, IA 50392-0001 4/16/2012 9,134.73 $
Principal Life Insurance Group Xx Des Moines, IA 50392-0001 5/7/2012 9,134.73 $
Principal Life Insurance Group Xx Des Moines, IA 50392-0001 5/21/2012 9,234.73 $
Principal Life Insurance Group Xx Des Moines, IA 50392-0001 6/4/2012 9,369.71 $
Richards Layton & Finger 920 North King Street One Rodney Square Wilmington, DE 19801 5/24/2012 50,000.00 $
Richards Layton & Finger 920 North King Street One Rodney Square Wilmington, DE 19801 6/8/2012 35,000.00 $
Ricoh Canada Inc. 5520 Explorer Drive 3Rd Floor Mississauga, ON L4W 5L1 5/2/2012 15,197.13 $
Ricoh Canada Inc. 5520 Explorer Drive 3Rd Floor Mississauga, ON L4W 5L1 5/18/2012 261.35 $
Ricoh Production Print Solutions P.O. Box 644225 Pittsburgh, PA 15264-4225 3/21/2012 2,018.18 $
Ricoh Production Print Solutions P.O. Box 644225 Pittsburgh, PA 15264-4225 3/21/2012 11,165.79 $
Rogers Wireless, Inc. P.O. Box 9100 Don Mills, ON M3C 3P9 3/16/2012 346.02 $
Rogers Wireless, Inc. P.O. Box 9100 Don Mills, ONM3C 3P9 4/18/2012 327.06 $
Rogers Wireless, Inc. P.O. Box 9100 Don Mills, ON M3C 3P9 5/14/2012 322.74 $
Rothschild Inc 1251 Avenue Of The Americas 51St Floor New York, NY 10020 6/8/2012 150,000.00 $
Rust Consulting 625 Marquette Avenue Suite 880 Minneapolis, MN 55402-2469 6/8/2012 20,000.00 $
Rust Consulting 625 Marquette Avenue Suite 880 Minneapolis, MN 55402-2469 6/8/2012 6,109.55 $
Sharp Business Systems Of Georgia Dept 1212 Po Box 121212 Dallas, TX 75312-1212 3/21/2012 376.86 $
Sharp Business Systems Of Georgia Dept 1212 Po Box 121212 Dallas, TX 75312-1212 5/29/2012 648.86 $
Simple Benefit Plans & Communication 1745 North Brown Road Lawrenceville, GA 30043 3/12/2012 14,030.20 $
Simple Benefit Plans & Communication 1745 North Brown Road Lawrenceville, GA 30043 4/12/2012 13,527.05 $
Simple Benefit Plans & Communication 1745 North Brown Road Lawrenceville, GA 30043 5/9/2012 13,652.50 $
Simple Benefit Plans & Communication 1745 North Brown Road Lawrenceville, GA 30043 6/6/2012 13,471.75 $
Sitrick And Company 1840 Century Park East Suite 800 Los Angeles, CA 90067-2109 6/8/2012 25,000.00 $
Sitrick And Company 1840 Century Park East Suite 800 Los Angeles, CA 90067-2109 6/8/2012 25,000.00 $
Softmart P.O. Box 8500 -52288 Philadelphia, PA 19178-2288 5/24/2012 27,900.18 $
Sunlife Financial P.O. Box 7247-7184 Philadelphia, PA 19170-7184 4/11/2012 7,933.08 $
Sunlife Financial P.O. Box 7247-7184 Philadelphia, PA 19170-7184 5/3/2012 7,815.13 $
Swerdlin & Company 5901 Peachtree-Dunwoody Rd. Bldg. B Ste. 170 Atlanta, GA 30328 3/23/2012 4,743.00 $
Swerdlin & Company 5901 Peachtree-Dunwoody Rd. Bldg. B Ste. 170 Atlanta, GA 30328 3/23/2012 12,750.00 $
Swerdlin & Company 5901 Peachtree-Dunwoody Rd. Bldg. B Ste. 170 Atlanta, GA 30328 4/23/2012 3,213.00 $
Swerdlin & Company 5901 Peachtree-Dunwoody Rd. Bldg. B Ste. 170 Atlanta, GA 30328 4/23/2012 377.00 $
Swerdlin & Company 5901 Peachtree-Dunwoody Rd. Bldg. B Ste. 170 Atlanta, GA 30328 5/10/2012 377.00 $
Swerdlin & Company 5901 Peachtree-Dunwoody Rd. Bldg. B Ste. 170 Atlanta, GA 30328 5/18/2012 8,964.00 $
Swerdlin & Company 5901 Peachtree-Dunwoody Rd. Bldg. B Ste. 170 Atlanta, GA 30328 3/19/2012 9,010.02 $
Page 4 of 6
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 3b - Payment to creditors
Vendor Vendor Address Address Address Pymnt Date Pymnt Amount
Swerdlin & Company 5901 Peachtree-Dunwoody Rd. Bldg. B Ste. 170 Atlanta, GA 30328 3/20/2012 7,488.51 $
Swerdlin & Company 5901 Peachtree-Dunwoody Rd. Bldg. B Ste. 170 Atlanta, GA 30328 4/12/2012 5,525.91 $
Swerdlin & Company 5901 Peachtree-Dunwoody Rd. Bldg. B Ste. 170 Atlanta, GA 30328 4/18/2012 3,525.40 $
Swerdlin & Company 5901 Peachtree-Dunwoody Rd. Bldg. B Ste. 170 Atlanta, GA 30328 5/8/2012 5,958.62 $
Swerdlin & Company 5901 Peachtree-Dunwoody Rd. Bldg. B Ste. 170 Atlanta, GA 30328 5/21/2012 3,880.63 $
Swerdlin & Company 5901 Peachtree-Dunwoody Rd. Bldg. B Ste. 170 Atlanta, GA 30328 6/8/2012 3,173.00 $
The Hartford 200 Hopmeadow St Simsbury, CT 06089 3/16/2012 1,115.39 $
The Hartford 200 Hopmeadow St Simsbury, CT 06089 3/20/2012 780.77 $
The Hartford 200 Hopmeadow St Simsbury, CT 06089 3/28/2012 780.77 $
The Hartford 200 Hopmeadow St Simsbury, CT 06089 4/3/2012 780.77 $
The Hartford 200 Hopmeadow St Simsbury, CT 06089 4/10/2012 446.15 $
The Hartford Life Insurance Companies P.O. Box 8500-3690 Philadelphia, PA 19173-3690 4/11/2012 9,117.99 $
The Hartford Life Insurance Companies P.O. Box 8500-3690 Philadelphia, PA 19173-3690 5/3/2012 258.00 $
The Hartford Life Insurance Companies P.O. Box 8500-3690 Philadelphia, PA 19173-3690 5/3/2012 17.61 $
The Hartford Life Insurance Companies P.O. Box 8500-3690 Philadelphia, PA 19173-3690 5/3/2012 8,861.64 $
The Partners Group 3575 Piedmont Road Bldg 15 Suite 900 Atlanta, GA 30305 3/12/2012 1,500.00 $
Troutman, Sanders Llp P.O. Box 933652 Atlanta, GA 31193-3652 3/30/2012 105,190.92 $
Troutman, Sanders Llp P.O. Box 933652 Atlanta, GA 31193-3652 4/30/2012 129,418.55 $
Troutman, Sanders Llp P.O. Box 933652 Atlanta, GA 31193-3652 5/21/2012 200,000.00 $
Troutman, Sanders Llp P.O. Box 933652 Atlanta, GA 31193-3652 5/31/2012 163,060.15 $
Troutman, Sanders Llp P.O. Box 933652 Atlanta, GA 31193-3652 5/31/2012 100,000.00 $
Troutman, Sanders Llp P.O. Box 933652 Atlanta, GA 31193-3652 6/8/2012 100,000.00 $
Truescreen Inc P. O. Box 1675 Southampton, PA 18966 4/5/2012 50.00 $
Truescreen Inc P. O. Box 1675 Southampton, PA 18966 5/30/2012 137.50 $
Truescreen Inc P. O. Box 1675 Southampton, PA 18966 6/4/2012 35.75 $
Truescreen Inc P. O. Box 1675 Southampton, PA 18966 6/5/2012 75.00 $
Tydan It 6201 Tanak Cove Austin, TX 78749 5/14/2012 1,843.75 $
U.S. Trustee P.O. Box 70937 Charlotte, NC 28272 4/20/2012 13,000.00 $
U.S. Trustee P.O. Box 70937 Charlotte, NC 28272 4/20/2012 325.00 $
United Healthcare Insurance Company 22703 Network Place Chicago, IL 60673-1227 4/11/2012 157,926.94 $
United Healthcare Insurance Company 22703 Network Place Chicago, IL 60673-1227 5/3/2012 159,329.95 $
United Parcel Service P.O. Box 7247-0244 Philadelphia, PA 19170-0001 3/19/2012 3,489.19 $
United Parcel Service P.O. Box 7247-0244 Philadelphia, PA 19170-0001 3/27/2012 969.89 $
United Parcel Service P.O. Box 7247-0244 Philadelphia, PA 19170-0001 4/4/2012 952.39 $
United Parcel Service P.O. Box 7247-0244 Philadelphia, PA 19170-0001 4/9/2012 1,140.66 $
United Parcel Service P.O. Box 7247-0244 Philadelphia, PA 19170-0001 4/19/2012 576.79 $
United Parcel Service P.O. Box 7247-0244 Philadelphia, PA 19170-0001 4/24/2012 628.42 $
United Parcel Service P.O. Box 7247-0244 Philadelphia, PA 19170-0001 4/30/2012 663.42 $
United Parcel Service P.O. Box 7247-0244 Philadelphia, PA 19170-0001 5/7/2012 1,537.98 $
United Parcel Service P.O. Box 7247-0244 Philadelphia, PA 19170-0001 5/17/2012 1,367.38 $
United Parcel Service P.O. Box 7247-0244 Philadelphia, PA 19170-0001 5/22/2012 824.63 $
United Parcel Service P.O. Box 7247-0244 Philadelphia, PA 19170-0001 6/1/2012 578.92 $
Page 5 of 6
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 3b - Payment to creditors
Vendor Vendor Address Address Address Pymnt Date Pymnt Amount
United Parcel Service P.O. Box 7247-0244 Philadelphia, PA 19170-0001 6/5/2012 819.17 $
United Parcel Service P.O. Box 7247-0244 Philadelphia, PA 19170-0001 6/11/2012 995.41 $
Unitedhealth Group 450 Columbus Blvd Hartford, CT 06103 3/14/2012 433.05 $
Unitedhealth Group 450 Columbus Blvd Hartford, CT 06103 4/11/2012 209.32 $
Unum Life Insurance Co Of America - Port Disability Services 2211 Congress Street Portland, ME 04122-2150 4/6/2012 41.21 $
Unum Life Insurance Co Of America - Port Disability Services 2211 Congress Street Portland, ME 04122-2150 5/8/2012 41.21 $
Wells Fargo Bank, Na 1525 West Wt Harris Blvd Mac: D1116-058 Charlotte, NC 28262-8522 5/16/2012 631,160.00 $
Page 6 of 6

STATEMENT OF FINANCIAL AFFAIRS

EXHIBIT 3c

PAYMENTS TO INSIDERS
Allied Systems Holdings, Inc., et al.
Case No. 12-11564
SOFA 3c - Payments to creditors (insiders)
Name Description Check # Check Date Amount
John Blount Car Allowance 100379563 6/15/2011 350.00 $
John Blount Airfare 9001118 6/24/2011 1,800.40 $
John Blount Hotel 9001118 6/24/2011 396.74 $
John Blount Meals 9001118 6/24/2011 233.87 $
John Blount Other 9001118 6/24/2011 51.95 $
John Blount Phone 100383358 6/30/2011 146.92 $
John Blount Car Allowance 100383358 6/30/2011 350.00 $
John Blount Other 100386104 7/15/2011 15.00 $
John Blount Phone 100386104 7/15/2011 202.46 $
John Blount Car Allowance 100386104 7/15/2011 350.00 $
John Blount Airfare 9001121 7/20/2011 1,564.80 $
John Blount Hotel 9001121 7/20/2011 18.72 $
John Blount Meals 9001121 7/20/2011 38.90 $
John Blount Other 9001121 7/20/2011 185.03 $
John Blount Car Rental 9001121 7/20/2011 107.86 $
John Blount Car Allowance 100388681 7/29/2011 350.00 $
John Blount Car Allowance 100390795 8/15/2011 350.00 $
John Blount Airfare 100393160 8/31/2011 353.40 $
John Blount Phone 100393160 8/31/2011 209.76 $
John Blount Car Allowance 100393160 8/31/2011 350.00 $
John Blount Bonus 9001129 9/1/2011 266,048.64 $
John Blount Airfare 100396578 9/15/2011 1,080.33 $
John Blount Hotel 100396578 9/15/2011 464.55 $
John Blount Meals 100396578 9/15/2011 317.74 $
John Blount Other 100396578 9/15/2011 191.00 $
John Blount Car Rental 100396578 9/15/2011 193.08 $
John Blount Car Allowance 100396578 9/15/2011 350.00 $
John Blount Airfare 100399233 9/30/2011 2,736.76 $
John Blount Hotel 100399233 9/30/2011 572.93 $
John Blount Meals 100399233 9/30/2011 171.39 $
John Blount Other 100399233 9/30/2011 170.00 $
John Blount Car Rental 100399233 9/30/2011 193.08 $
John Blount Car Allowance 100399233 9/30/2011 350.00 $
John Blount Airfare 100401772 10/14/2011 1,648.85 $
John Blount Hotel 100401772 10/14/2011 493.57 $
John Blount Meals 100401772 10/14/2011 356.67 $
John Blount Other 100401772 10/14/2011 11.47 $
John Blount Car Rental 100401772 10/14/2011 (193.08) $
John Blount Car Allowance 100401772 10/14/2011 350.00 $
John Blount Airfare 100404208 10/31/2011 1,703.80 $
John Blount Phone 100404208 10/31/2011 357.86 $
John Blount Car Allowance 100404208 10/31/2011 350.00 $
John Blount Hotel 100407998 11/15/2011 1,199.26 $
John Blount Meals 100407998 11/15/2011 320.13 $
John Blount Other 100407998 11/15/2011 172.95 $
Page 1 of 7
Allied Systems Holdings, Inc., et al.
Case No. 12-11564
SOFA 3c - Payments to creditors (insiders)
Name Description Check # Check Date Amount
John Blount Phone 100407998 11/15/2011 206.41 $
John Blount Car Allowance 100407998 11/15/2011 350.00 $
John Blount Car Allowance 100409905 11/30/2011 350.00 $
John Blount Airfare 100413266 12/15/2011 1,966.80 $
John Blount Hotel 100413266 12/15/2011 378.19 $
John Blount Meals 100413266 12/15/2011 121.97 $
John Blount Other 100413266 12/15/2011 313.00 $
John Blount Phone 100413266 12/15/2011 208.86 $
John Blount Car Rental 100413266 12/15/2011 124.28 $
John Blount Car Allowance 100413266 12/15/2011 350.00 $
John Blount Hotel 100415646 12/30/2011 7.68 $
John Blount Phone 100415646 12/30/2011 138.41 $
John Blount Car Allowance 100415646 12/30/2011 350.00 $
John Blount Car Allowance 100418605 1/13/2012 350.00 $
John Blount Airfare 9001147 1/17/2012 2,908.98 $
John Blount Hotel 9001147 1/17/2012 8.40 $
John Blount Meals 9001147 1/17/2012 295.49 $
John Blount Other 9001147 1/17/2012 592.00 $
John Blount Phone 9001147 1/17/2012 206.61 $
John Blount Car Allowance 100421939 1/31/2012 350.00 $
John Blount Airfare 100424581 2/15/2012 1,207.37 $
John Blount Hotel 100424581 2/15/2012 286.74 $
John Blount Meals 100424581 2/15/2012 19.25 $
John Blount Other 100424581 2/15/2012 123.95 $
John Blount Phone 100424581 2/15/2012 196.91 $
John Blount Car Allowance 100424581 2/15/2012 350.00 $
John Blount Car Allowance 100426540 2/29/2012 350.00 $
John Blount Airfare 100428843 3/15/2012 3,461.35 $
John Blount Hotel 100428843 3/15/2012 555.04 $
John Blount Meals 100428843 3/15/2012 699.40 $
John Blount Other 100428843 3/15/2012 62.92 $
John Blount Car Allowance 100428843 3/15/2012 350.00 $
John Blount Car Allowance 100431001 3/30/2012 350.00 $
John Blount Car Allowance 100433583 4/13/2012 350.00 $
John Blount Hotel 100433583 4/13/2012 525.32 $
John Blount Meals 100433583 4/13/2012 114.22 $
John Blount Other 100433583 4/13/2012 16.89 $
John Blount Car Allowance 100435843 4/30/2012 350.00 $
John Blount Airfare 9001154 5/15/2012 6,686.64 $
John Blount Hotel 9001154 5/15/2012 919.11 $
John Blount Meals 9001154 5/15/2012 129.72 $
John Blount Other 9001154 5/15/2012 747.60 $
John Blount Phone 9001154 5/15/2012 517.33 $
John Blount Car Allowance 100438098 5/15/2012 350.00 $
John Blount Car Allowance 100441339 5/31/2012 350.00 $
Page 2 of 7
Allied Systems Holdings, Inc., et al.
Case No. 12-11564
SOFA 3c - Payments to creditors (insiders)
Name Description Check # Check Date Amount
John Blount Salary Various Various 300,000.00 $
615,683.63 $
Brian Cullen Director Fees 900030918 7/5/2011 12,500.00 $
Brian Cullen Director Fees 900031039 10/3/2011 12,500.00 $
Brian Cullen Director Fees 900031175 1/3/2012 12,500.00 $
Brian Cullen Director Fees 900031297 4/2/2012 12,500.00 $
50,000.00 $
Mark J. Gendregske Airfare 9001115 6/7/2011 1,178.20 $
Mark J. Gendregske Hotel 9001115 6/7/2011 46.14 $
Mark J. Gendregske Meals 9001115 6/7/2011 195.10 $
Mark J. Gendregske Other 9001115 6/7/2011 573.40 $
Mark J. Gendregske Phone 9001115 6/7/2011 197.10 $
Mark J. Gendregske Car Allowance 100379564 6/15/2011 500.00 $
Mark J. Gendregske Airfare 9001116 6/22/2011 2,166.10 $
Mark J. Gendregske Hotel 9001116 6/22/2011 36.99 $
Mark J. Gendregske Meals 9001116 6/22/2011 245.83 $
Mark J. Gendregske Other 9001116 6/22/2011 95.10 $
Mark J. Gendregske Airfare 9001120 6/30/2011 274.00 $
Mark J. Gendregske Hotel 9001120 6/30/2011 381.89 $
Mark J. Gendregske Meals 9001120 6/30/2011 817.26 $
Mark J. Gendregske Other 9001120 6/30/2011 472.14 $
Mark J. Gendregske Car Rental 9001120 6/30/2011 95.50 $
Mark J. Gendregske Car Allowance 100383359 6/30/2011 500.00 $
Mark J. Gendregske Car Allowance 100386105 7/15/2011 500.00 $
Mark J. Gendregske Airfare 9001122 7/21/2011 652.00 $
Mark J. Gendregske Hotel 9001122 7/21/2011 76.02 $
Mark J. Gendregske Meals 9001122 7/21/2011 400.71 $
Mark J. Gendregske Other 9001122 7/21/2011 805.19 $
Mark J. Gendregske Phone 9001122 7/21/2011 160.50 $
Mark J. Gendregske Airfare 9001123 7/22/2011 418.80 $
Mark J. Gendregske Meals 9001123 7/22/2011 288.03 $
Mark J. Gendregske Other 9001123 7/22/2011 5.00 $
Mark J. Gendregske Car Allowance 100388682 7/29/2011 500.00 $
Mark J. Gendregske Airfare 9001126 8/5/2011 416.00 $
Mark J. Gendregske Hotel 9001126 8/5/2011 41.22 $
Mark J. Gendregske Meals 9001126 8/5/2011 500.32 $
Mark J. Gendregske Other 9001126 8/5/2011 341.00 $
Mark J. Gendregske Car Allowance 100390796 8/15/2011 500.00 $
Mark J. Gendregske Airfare 9001127 8/17/2011 407.50 $
Mark J. Gendregske Hotel 9001127 8/17/2011 261.49 $
Mark J. Gendregske Meals 9001127 8/17/2011 215.75 $
Mark J. Gendregske Other 9001127 8/17/2011 1,129.60 $
Mark J. Gendregske Phone 9001127 8/17/2011 203.12 $
Mark J. Gendregske Car Allowance 100393161 8/31/2011 500.00 $
Mark J. Gendregske Bonus 3004201 9/1/2011 532,097.28 $
John Blount - Total
Brian Cullen - Total
Page 3 of 7
Allied Systems Holdings, Inc., et al.
Case No. 12-11564
SOFA 3c - Payments to creditors (insiders)
Name Description Check # Check Date Amount
Mark J. Gendregske Airfare 9001134 9/7/2011 2,036.65 $
Mark J. Gendregske Hotel 9001134 9/7/2011 106.98 $
Mark J. Gendregske Meals 9001134 9/7/2011 3,492.20 $
Mark J. Gendregske Other 9001134 9/7/2011 20.00 $
Mark J. Gendregske Car Allowance 100396579 9/15/2011 500.00 $
Mark J. Gendregske Airfare 9001135 9/20/2011 1,585.80 $
Mark J. Gendregske Hotel 9001135 9/20/2011 884.87 $
Mark J. Gendregske Meals 9001135 9/20/2011 295.62 $
Mark J. Gendregske Other 9001135 9/20/2011 288.00 $
Mark J. Gendregske Phone 9001135 9/20/2011 192.97 $
Mark J. Gendregske Airfare 9001137 9/22/2011 2,995.20 $
Mark J. Gendregske Hotel 9001137 9/22/2011 333.90 $
Mark J. Gendregske Meals 9001137 9/22/2011 118.67 $
Mark J. Gendregske Other 9001137 9/22/2011 488.10 $
Mark J. Gendregske Car Rental 9001137 9/22/2011 139.90 $
Mark J. Gendregske Car Allowance 100399234 9/30/2011 500.00 $
Mark J. Gendregske Airfare 9001138 10/6/2011 1,263.50 $
Mark J. Gendregske Hotel 9001138 10/6/2011 2,020.21 $
Mark J. Gendregske Meals 9001138 10/6/2011 2,758.44 $
Mark J. Gendregske Other 9001138 10/6/2011 504.46 $
Mark J. Gendregske Airfare 9001140 10/14/2011 2,443.82 $
Mark J. Gendregske Hotel 9001140 10/14/2011 200.01 $
Mark J. Gendregske Meals 9001140 10/14/2011 443.42 $
Mark J. Gendregske Other 9001140 10/14/2011 99.00 $
Mark J. Gendregske Phone 9001140 10/14/2011 281.14 $
Mark J. Gendregske Car Allowance 100401773 10/14/2011 500.00 $
Mark J. Gendregske Airfare 9001141 10/28/2011 1,906.73 $
Mark J. Gendregske Hotel 9001142 10/28/2011 602.34 $
Mark J. Gendregske Hotel 9001141 10/28/2011 898.18 $
Mark J. Gendregske Meals 9001142 10/28/2011 449.55 $
Mark J. Gendregske Meals 9001141 10/28/2011 2,880.01 $
Mark J. Gendregske Other 9001142 10/28/2011 70.55 $
Mark J. Gendregske Other 9001141 10/28/2011 409.75 $
Mark J. Gendregske Car Rental 9001141 10/28/2011 306.45 $
Mark J. Gendregske Car Allowance 100404209 10/31/2011 500.00 $
Mark J. Gendregske Airfare 9001143 11/10/2011 1,103.40 $
Mark J. Gendregske Hotel 9001143 11/10/2011 262.07 $
Mark J. Gendregske Meals 9001143 11/10/2011 1,069.99 $
Mark J. Gendregske Other 9001143 11/10/2011 154.00 $
Mark J. Gendregske Phone 9001143 11/10/2011 271.54 $
Mark J. Gendregske Car Allowance 100407999 11/15/2011 500.00 $
Mark J. Gendregske Car Allowance 100409906 11/30/2011 500.00 $
Mark J. Gendregske Airfare 9001144 12/8/2011 2,915.40 $
Mark J. Gendregske Hotel 9001144 12/8/2011 74.97 $
Mark J. Gendregske Meals 9001144 12/8/2011 2,054.19 $
Page 4 of 7
Allied Systems Holdings, Inc., et al.
Case No. 12-11564
SOFA 3c - Payments to creditors (insiders)
Name Description Check # Check Date Amount
Mark J. Gendregske Other 9001144 12/8/2011 1,025.94 $
Mark J. Gendregske Phone 9001144 12/8/2011 173.72 $
Mark J. Gendregske Car Allowance 100413267 12/15/2011 500.00 $
Mark J. Gendregske Hotel 9001145 12/20/2011 54.51 $
Mark J. Gendregske Meals 9001145 12/20/2011 2,305.75 $
Mark J. Gendregske Other 9001145 12/20/2011 354.70 $
Mark J. Gendregske Car Allowance 100415647 12/30/2011 500.00 $
Mark J. Gendregske Airfare 9001146 1/11/2012 230.20 $
Mark J. Gendregske Hotel 9001146 1/11/2012 10.23 $
Mark J. Gendregske Meals 9001146 1/11/2012 1,240.79 $
Mark J. Gendregske Other 9001146 1/11/2012 484.00 $
Mark J. Gendregske Phone 9001146 1/11/2012 170.99 $
Mark J. Gendregske Car Allowance 100418606 1/13/2012 500.00 $
Mark J. Gendregske Airfare 9001148 1/17/2012 1,548.80 $
Mark J. Gendregske Hotel 9001148 1/17/2012 660.28 $
Mark J. Gendregske Meals 9001148 1/17/2012 94.40 $
Mark J. Gendregske Other 9001148 1/17/2012 76.00 $
Mark J. Gendregske Apartment Rent 4273 1/23/2012 118.97 $
Mark J. Gendregske Apartment Rent 4274 1/23/2012 3,450.00 $
Mark J. Gendregske Airfare 9001149 1/27/2012 503.00 $
Mark J. Gendregske Hotel 9001149 1/27/2012 455.64 $
Mark J. Gendregske Meals 9001149 1/27/2012 861.95 $
Mark J. Gendregske Other 9001149 1/27/2012 32.00 $
Mark J. Gendregske Car Allowance 100421940 1/31/2012 500.00 $
Mark J. Gendregske Apartment Rent 4283 2/7/2012 500.00 $
Mark J. Gendregske Car Allowance 100424582 2/15/2012 500.00 $
Mark J. Gendregske Airfare 9001151 2/20/2012 3,630.80 $
Mark J. Gendregske Hotel 9001151 2/20/2012 22.50 $
Mark J. Gendregske Meals 9001151 2/20/2012 502.23 $
Mark J. Gendregske Other 9001151 2/20/2012 72.60 $
Mark J. Gendregske Phone 9001151 2/20/2012 178.03 $
Mark J. Gendregske Hotel 9001152 2/21/2012 567.99 $
Mark J. Gendregske Meals 9001152 2/21/2012 615.72 $
Mark J. Gendregske Other 9001152 2/21/2012 554.00 $
Mark J. Gendregske Car Allowance 100426541 2/29/2012 500.00 $
Mark J. Gendregske Apartment Rent 4299 3/2/2012 3,450.00 $
Mark J. Gendregske Car Allowance 100428844 3/15/2012 500.00 $
Mark J. Gendregske Hotel 100428844 3/15/2012 171.22 $
Mark J. Gendregske Meals 100428844 3/15/2012 1,114.27 $
Mark J. Gendregske Other 100428844 3/15/2012 25.99 $
Mark J. Gendregske Car Allowance 100431002 3/30/2012 500.00 $
Mark J. Gendregske Apartment Rent 4318 4/2/2012 3,450.00 $
Mark J. Gendregske Airfare 100433584 4/13/2012 2,639.59 $
Mark J. Gendregske Hotel 100433584 4/13/2012 576.83 $
Mark J. Gendregske Meals 100433584 4/13/2012 47.23 $
Page 5 of 7
Allied Systems Holdings, Inc., et al.
Case No. 12-11564
SOFA 3c - Payments to creditors (insiders)
Name Description Check # Check Date Amount
Mark J. Gendregske Other 100433584 4/13/2012 266.00 $
Mark J. Gendregske Car Allowance 100433584 4/13/2012 500.00 $
Mark J. Gendregske Airfare 100435844 4/30/2012 431.80 $
Mark J. Gendregske Hotel 100435844 4/30/2012 505.37 $
Mark J. Gendregske Meals 100435844 4/30/2012 1,148.95 $
Mark J. Gendregske Other 100435844 4/30/2012 1,710.43 $
Mark J. Gendregske Car Allowance 100435844 4/30/2012 500.00 $
Mark J. Gendregske Apartment Rent 4332 5/1/2012 3,450.00 $
Mark J. Gendregske Airfare 9001156 5/15/2012 1,448.20 $
Mark J. Gendregske Airfare 9001155 5/15/2012 2,799.35 $
Mark J. Gendregske Meals 9001156 5/15/2012 466.88 $
Mark J. Gendregske Meals 9001155 5/15/2012 738.13 $
Mark J. Gendregske Other 9001156 5/15/2012 298.43 $
Mark J. Gendregske Other 9001155 5/15/2012 361.02 $
Mark J. Gendregske Phone 9001155 5/15/2012 530.60 $
Mark J. Gendregske Phone 9001156 5/15/2012 850.58 $
Mark J. Gendregske Car Allowance 100438099 5/15/2012 500.00 $
Mark J. Gendregske Airfare 9001157 5/16/2012 608.20 $
Mark J. Gendregske Hotel 9001157 5/16/2012 253.00 $
Mark J. Gendregske Other 9001157 5/16/2012 80.51 $
Mark J. Gendregske Airfare 9001159 5/22/2012 399.60 $
Mark J. Gendregske Meals 9001159 5/22/2012 380.66 $
Mark J. Gendregske Other 9001159 5/22/2012 143.28 $
Mark J. Gendregske Car Allowance 100441340 5/31/2012 500.00 $
Mark J. Gendregske Apartment Rent 4360 6/8/2012 3,450.00 $
Mark J. Gendregske Salary Various Various 600,000.00 $
1,247,908.12 $
Scott D. Macaulay Car Allowance 100379558 6/15/2011 325.00 $
Scott D. Macaulay Phone 9001119 6/28/2011 259.98 $
Scott D. Macaulay Car Allowance 100383353 6/30/2011 325.00 $
Scott D. Macaulay Car Allowance 100386099 7/15/2011 325.00 $
Scott D. Macaulay Meals 9001124 7/25/2011 90.32 $
Scott D. Macaulay Other 9001124 7/25/2011 1,379.75 $
Scott D. Macaulay Car Allowance 100388676 7/29/2011 325.00 $
Scott D. Macaulay Car Allowance 100390790 8/15/2011 325.00 $
Scott D. Macaulay Car Allowance 100393155 8/31/2011 325.00 $
Scott D. Macaulay Phone 100393155 8/31/2011 129.99 $
Scott D. Macaulay Bonus 9001128 9/1/2011 186,700.80 $
Scott D. Macaulay Phone 100396573 9/15/2011 129.99 $
Scott D. Macaulay Car Allowance 100396573 9/15/2011 325.00 $
Scott D. Macaulay Car Allowance 100399228 9/30/2011 325.00 $
Scott D. Macaulay Car Allowance 100401767 10/14/2011 325.00 $
Scott D. Macaulay Car Allowance 100404203 10/31/2011 325.00 $
Scott D. Macaulay Car Allowance 100407993 11/15/2011 325.00 $
Scott D. Macaulay Car Allowance 100409900 11/30/2011 325.00 $
Mark J. Gendregske - Total
Page 6 of 7
Allied Systems Holdings, Inc., et al.
Case No. 12-11564
SOFA 3c - Payments to creditors (insiders)
Name Description Check # Check Date Amount
Scott D. Macaulay Phone 100409900 11/30/2011 159.98 $
Scott D. Macaulay Phone 100413261 12/15/2011 116.99 $
Scott D. Macaulay Car Allowance 100413261 12/15/2011 325.00 $
Scott D. Macaulay Car Allowance 100415641 12/30/2011 325.00 $
Scott D. Macaulay Car Allowance 100418600 1/13/2012 325.00 $
Scott D. Macaulay Car Allowance 100421934 1/31/2012 325.00 $
Scott D. Macaulay Airfare 100424576 2/15/2012 329.40 $
Scott D. Macaulay Other 100424576 2/15/2012 92.21 $
Scott D. Macaulay Phone 100424576 2/15/2012 233.98 $
Scott D. Macaulay Car Allowance 100424576 2/15/2012 325.00 $
Scott D. Macaulay Car Allowance 100426535 2/29/2012 325.00 $
Scott D. Macaulay Car Allowance 100428838 3/15/2012 325.00 $
Scott D. Macaulay Car Allowance 100430996 3/30/2012 325.00 $
Scott D. Macaulay Other 9001153 4/11/2012 10.00 $
Scott D. Macaulay Phone 9001153 4/11/2012 257.42 $
Scott D. Macaulay Car Allowance 100433578 4/13/2012 325.00 $
Scott D. Macaulay Car Allowance 100435838 4/30/2012 325.00 $
Scott D. Macaulay Car Allowance 100438093 5/15/2012 325.00 $
Scott D. Macaulay Airfare 9001158 5/18/2012 1,051.60 $
Scott D. Macaulay Meals 9001158 5/18/2012 34.77 $
Scott D. Macaulay Other 9001158 5/18/2012 32.00 $
Scott D. Macaulay Car Allowance 100441334 5/31/2012 325.00 $
Scott D. Macaulay Salary Various Various 212,500.08 $
410,984.26 $
Derex Walker Travel Reimbursement 900031007 9/7/2011 1,668.61 $
Derex Walker Travel Reimbursement 900031009 9/12/2011 1,850.51 $
Derex Walker Travel Reimbursement 900031023 9/20/2011 3,651.75 $
Derex Walker Travel Reimbursement 900031027 9/23/2011 590.36 $
Derex Walker Travel Reimbursement 900031073 10/18/2011 95.00 $
Derex Walker Travel Reimbursement 900031093 11/2/2011 158.31 $
Derex Walker Travel Reimbursement 900031117 11/21/2011 1,837.20 $
Derex Walker Travel Reimbursement 900031127 11/28/2011 5,224.74 $
Derex Walker Travel Reimbursement 900031214 1/27/2012 5,541.46 $
Derex Walker Travel Reimbursement 900031292 3/26/2012 3,269.40 $
23,887.34 $
2,348,463.35 $
Scott D. Macaulay - Total
Payments to Creditors (Insiders) - Grand Total
Derex Walker - Total
Page 7 of 7
STATEMENT OF FINANCIAL AFFAIRS

EXHIBIT 4a

SUITS AND ADMINISTRATIVE PROCEEDINGS
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 4a - Suits and administrative proceedings, executions, garnishments and attachments
Case Title Court Case No. Nature of Claim Status
Aliled Holdings, Inc., Axis Group, Inc., and AX
International, Ltd. v. Richard Cox
N.D.Ga. Bankr. 07-bk-06244-CRM Breach of Contract On appeal
Allied Systems Holdings, Inc. v. T. Michael
Riggs, IEP Carhaul LLC, Jack Cooper Transport
Copmany, Inc., and Active Carhaul Acquisition,
Inc. v. The Yucaipa Companies, LLC and Mark
J. Gendregske
Superior Court of Cobb
County, State of Georgia
CV-09-1-10536-48 Business Tort Pending
Allied Systems Holdings, Inc., Yucaipa
American Alliance Fund I, LP, and Yucaipa
American Alliance (Parallel) Fund I, LP v. The
CIT Group/Business Credit, Inc.
Superior Court of Fulton
County, State of Georgia
2009CV177574 Breach of Contract Settled
Carl Atupem v. Brian Butrick Superior Court of Middlesex
County, Commonwealth of
Massachusetts
10-3914-D Auto Liability Pending
Central States, Southeast and Southwest Areas
Pension Fund, and Howard McDougall v. Allied
Systems Holdings, Inc.
N.D.Ill. 11-cv-1748 ERISA/Breach of
contract
Settled.
Donald Smodic and Dory Smodic v. Robert E.
Hummel, Allied Systems, Ltd. and Allied
Holdings, Inc.
Court of Common Pleas of
Westmoreland County,
Pennsylvania
07CI11107 Auto Liability Pending
Downey Surgical Clinic, Inc. and Tarzana
Surgery Center, Inc. v. Ingenix, Inc. et. al.
C.D.Cal. CV 09-05457 PSG ERISA class action Pending
Felix Jimenez v. Allied Systems, Ltd., Allied
Holdings, Inc., Norbert Mason et al.
Superior Court of New Jersey,
Law Division: Bergen County
BER L 5198 09 Auto Liability Settled
Glenn Madewell v. Allied Systems Holdings, Inc.
d/b/a Allied Systems, Ltd.; Allied Automotive
Group, Inc. d/b/a Allied Systems, Ltd.
Circuit Court of Jefferson
County, State of Alabama
01-CV-2010-
904113.00
Breach of Contract Settled
Page 1 of 17
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 4a - Suits and administrative proceedings, executions, garnishments and attachments
Case Title Court Case No. Nature of Claim Status
Irma Zwirn, Lizett Garcia v. Larry E. Noyes,
Allied Holdings, Inc.
Superior Court of the State of
California, for the County of
Los Angeles - East District
KC057960 Auto Liability Settled
Irma Zwirz, Lizett Garcia v. Larry E. Noyes,
Allied Holdings, Inc.
Superior Court of the State of
California, for the County of
Los Angeles - East District
KC057960 Auto Liability Pending
James Jones v. Allied Systems Holdings, Inc. EEOC EOC# 28E-2012-
00025
Discrimination Pending
James Jones v. Allied Systems Holdings, Inc. Missouri Department of Civil
Rights
MDCR# E-09/11-
39810
Discrimination Pending
Janice Bolton & Emily Trebat v. Carlos Nery,
Allied Systems, Ltd., Allied Holdings, Inc. and
American International Group, Inc.
Superior Court of Middlesex
County, Commonwealth of
Massachusetts
08-3911 Auto Liability Settled
John Orth v. Allied Systems Holdings, Inc. D.Minn. Case No. 0:12-cv-
00023-JNE-JJG
Discrimination Pending
Ju Y. Kim v. Phillip Lee Thompson, et al. Superior Court of Bergen
County, NJ
BER L 6050-11 Auto Liability Settled
Juan Garcia-Serrano, Personal Representative
of the Estate of Ruben Garcia v. Robert
McKnight, Allied Systems Holdings, Inc.,
Georgia Allied Systems LP d/b/a Allied Systems
Ltd.
Circuit Court of the Twentieth
Judicial Circuit in and for Lee
County, FL
11-CA-001081 Auto Liability Pending
Luke Thomas v. National Union Fire Insurance
Co. of Pittsburgh, PA, Allied Systems Holdings,
Inc. and Ralph Peterson
21st Judicial Court for the
Parish of Tangipaho, State of
Louisiana
2010-2092 Auto Liability Settled
Michael E. McClain v. Kristine R. Bramlett et al.
v. Allied Systems, Ltd. And Michael E. McClain
Circuit Court of Morgan
County, AL
CV-2011-900404 Auto Liability Pending
PJC Logistics, LLC v. AAA Cooper
Transportation, Inc. et al.
D.Minn. 0:11-cv-02550-
DWF-SER
Patent infringement
class action
Dismissed
Page 2 of 17
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 4a - Suits and administrative proceedings, executions, garnishments and attachments
Case Title Court Case No. Nature of Claim Status
Richard Cox v. Allied Holdings, Inc. et al. 11th Cir. Court Appeals 12-12051-E Breach of Contract Pending
Russell Andrew Morgan v. David Richard
Fuentes and Allied Systems Holdings, Inc.
Circuit Court of the Thirteenth
Judicial Ciruict in and for
Hillsborough County, Florida
2011-CA-009899 Auto Liability Settled
Sarah Flynn et al. v. Allied Systems, Ltd. et al. Boone Circuit Court,
Commonwealth of Kentucky
09-CI-00759 Auto Liability Pending
Tammy Roszell v. James E. Carothers, Allied
Systems, Ltd., Allied Systems Holdings, Inc.,
and the Insurance Company of the State of
Pennsylvania
Superior Court of Douglas
County, State of Georgia
10CV03-124 Auto Liability Pending
Teamsters Health & Welfare Fund of
Philadelphia & Vicinity and Teamsters Pension
Fund of Philadelphia & Vicinity v. Allied Systems
Holdings, Inc., Allied Automotive Group, Inc.
D.N.J. 10-6540 (JEI) (JS) ERISA Dismissed.
Traci Bazala Willett and Brian Willett v. Allied
Systems Holdings, Inc., Allied Automotive
Group, Inc, Allied Systems, Ltd.(LP.) d/b/a Allied
Systems, Limited Partnership, and Dwan Darryl
Pyrtle
Chatham County, NC General
Court of Justice, Superior
Court Division
12-CVS-160 Auto Liability Pending
Adams Randall Florida Judges of
Compensation Claims -
Lakeland
Not Avalable Workers
Compensation
Closed
Aldredge Ricky Texas Division of Workers
Compensation-Dallas
Not Avalable Workers
Compensation
Closed
Alexander Douglas TN Workers Compensation
Division - 20th Judicial District
123362011 Workers
Compensation
Pending
Page 3 of 17
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 4a - Suits and administrative proceedings, executions, garnishments and attachments
Case Title Court Case No. Nature of Claim Status
Allen Dale Minnesota Workers
Compensation Division
10122745 Workers
Compensation
Pending
Anna Richard NY Workers Compesnation
Board - Buffalo District Office
G0033491 Workers
Compensation
Pending
Argento Charles NJ Division of Workers
Compensation - Burlington
Not Avalable Workers
Compensation
Closed
Bartolini Dominic Division of Workers
Compensation - Bergen
NJ2010075817 Workers
Compensation
Pending
Bartolini,Dominic NJ Division of Workers
Compensation
2002-9936 Workers
Compensation
Pending
Beschorner Steven Division of Workers
Compensation - Anaheim
ADJ6639369 Workers
Compensation
Pending
Birdzell Roderick Division of Workers
Compensation - Anaheim
ADJ6662230 Workers
Compensation
Pending
Borgwardt Donald Wisconsin Workers
Compensation Division - Dane
Not Avalable Workers
Compensation
Closed
Bouie Michael Louisiana Workforce
Commission - District 8
07-03909 Workers
Compensation
Dismsised
Bowen William T Municipal court of Kettering,
Ohio
78017131 Workers
Compensation
Pending
Bratch Dana The Industrial Commission of
Ohio - Cuyahoga
8848836 Workers
Compensation
Closed
Brewer Alphus Florida Judges of
Compensation Claims -
Jacksonville
Not Avalable Workers
Compensation
Closed
Brown Lenworth NJ Division of Workers
Compensation - Monmouth
NJ2010120619 Workers
Compensation
Pending
Cano Joe Kentucky Department of
Workers Claims
2007-90610 Workers
Compensation
Pending
Caple Michael Kentucky Office of Workers
Compensation - Jefferson
Not Avalable Workers
Compensation
Closed
Page 4 of 17
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 4a - Suits and administrative proceedings, executions, garnishments and attachments
Case Title Court Case No. Nature of Claim Status
Carlotta Joseph The Industrial Commission of
Ohio - Hamilton
8810809 Workers
Compensation
Pending
Casesi Steve NJ Division of Workers
Compensation - Bergen
Not Avalable Workers
Compensation
Closed
Cass John Indiana Workers
Compensation Board
Not Avalable Workers
Compensation
Closed
Castro Robert Division of Workers
Compensation - Marina Del
Rey
ADJ8648309 Workers
Compensation
Pending
Cedeno,Franklin NJ Division of Workers
Compensation
2005-36955 Workers
Compensation
Closed
Christian Gary Division of Workers
Compensation - Union
NJ2011154283 Workers
Compensation
Pending
Cirullo Raymond A Florida Judges of
Compensation Claims - W.
Palm Beach
Not Avalable Workers
Compensation
Closed
Clark Robert Maryland Workers
Compensation Commission -
Baltimore
B705523 Workers
Compensation
Closed
Connor Dennis MA Department of Industrial
Accidents - Fall River
Not Avalable Workers
Compensation
Closed
Corley Henry Florida Judges of
Compensation Claims -
Jacksonville
Not Avalable Workers
Compensation
Closed
Cousin Melvin Lamont TN Workers Compensation
Division - 20th Judicial District
N/A Workers
Compensation
Pending
Coy,Harry NJ Division of Workers
Compensation
2007-16744 Workers
Compensation
Settled
Crumbley Jerry Missouri Division of Workers
Compensation
11074424 Workers
Compensation
Pending
Cullum James The Industrial Commission of
Ohio - Hamilton
8850181 Workers
Compensation
Pending
Page 5 of 17
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 4a - Suits and administrative proceedings, executions, garnishments and attachments
Case Title Court Case No. Nature of Claim Status
Cupo Frank Division of Workers
Compensation - Passaic
201014380 Workers
Compensation
Pending
Cupo Frank Division of Workers
Compensation - Passaic
NJ2010061518 Workers
Compensation
Pending
Cupo Frank Division of Workers
Compensation - Passaic
NJ2011174081 Workers
Compensation
Pending
Davis-Collins Timeka L Judges of Compensation
Claims - Daytona Beach
N/A Workers
Compensation
Pending
De Jesus Richard Division of Workers
Compensation - Ocean
Not Available Workers
Compensation
Pending
Deguida Dominick NJ Division of Workers
Compensation - Monmouth
Not Available Workers
Compensation
Pending
Deguida Dominick NJ Division of Workers
Compensation - Monmouth
NJ2010048051 Workers
Compensation
Pending
Deguida,Joseph NJ Division of Workers
Compensation
2005-24610 Workers
Compensation
Settled
Delisi Benjamin NJ Division of Workers
Compensation - Monmouth
2010035496 Workers
Compensation
Pending
Delisi Benjamin NJ Division of Workers
Compensation - Monmouth
2010044981 Workers
Compensation
Pending
Desteoglu Sarkis NJ Division of Workers
Compensation - Essex
NJ2010119357 Workers
Compensation
Pending
Dewberry Danny Texas Division of Workers
Compensation-Dallas
11123294 Workers
Compensation
Closed
Dibble Robert Wisconsin Workers
Compensation Division -
Milwaukee
Wisconsin Workers
Compensation
Closed
Diclementi Joseph Not Available Not Avalable Workers
Compensation
Closed
Dilone Yanco NJ Division of Workers
Compensation - Passaic
Not Avalable Workers
Compensation
Closed
Dinnocenzo Paul MA Department of Industrial
Accidents - Suffolk
Not Avalable Workers
Compensation
Closed
Page 6 of 17
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 4a - Suits and administrative proceedings, executions, garnishments and attachments
Case Title Court Case No. Nature of Claim Status
Downs Harvey Kentucky Office of Workers
Compensation - Jefferson
200774501 Workers
Compensation
Closed
Dubois James Office of Workers
Compensation - New Castle
1320177 Workers
Compensation
Pending
Dunn Daniel Division of Workers
Compensation - Hudson
NJ2010045794 Workers
Compensation
Pending
Ellam Scott WC Div - Hartford Bridgeport 4 Workers
Compensation
Closed
Ellerby Clark TN Workers Compensation
Division - 20th Judicial District
273362008 Workers
Compensation
Pending
Ely George The Industrial Commission of
Ohio - Drake
Not Avalable Workers
Compensation
Closed
Erickson,David K NJ Division of Workers
Compensation
1996-13557 &
1996-13586
Workers
Compensation
Pending
Falisiewicz Walter NJ Division of Workers
Compensation - Monmouth
NJ2010075421 Workers
Compensation
Closed
Ferguson Steven Michigan Workers
Compensation Board of
Magistrates
Not Avalable Workers
Compensation
Closed
Fitzgerald Kenneth NJ Division of Workers
Compensation - Monmouth
NJ2010090727 Workers
Compensation
Pending
Fitzgerald Kenneth NJ Division of Workers
Compensation - Freehold
2012-8889 Workers
Compensation
Pending
Fladhammer Eric Wisconsin Workers
Compensation Division - Dane
Not Avalable Workers
Compensation
Closed
Ford Charlie Not Available Not Available Workers
Compensation
Pending
Foster Tommy TN Workers Compensation
Division - 20th Judicial District
Not Avalable Workers
Compensation
Closed
Page 7 of 17
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 4a - Suits and administrative proceedings, executions, garnishments and attachments
Case Title Court Case No. Nature of Claim Status
Foster Tommy TN Workers Compensation
Division - 20th Judicial District
Not Avalable Workers
Compensation
Closed
Frazier Randall Indiana Workers
Compensation Board - District
1
Not Avalable Workers
Compensation
Closed
Gaines Tommy TN Workers Compensation
Division - 20th Judicial District
345142009 Workers
Compensation
Pending
Galvin Michael Illinois Workers Compensation
Commision -Cook
11fWC009767 Workers
Compensation
Closed
Glover Jesse L Illinois Workers Compensation
Commision -Cook
11WC019544 Workers
Compensation
Pending
Gonzalez Jose Judges of Compensation
Claims - Miami
N/A Workers
Compensation
Pending
Goss Sandy Not Available Not Avalable Workers
Compensation
Closed
Graham Latesa Florida Judges of
Compensation Claims -
Jacksonville
Not Avalable Workers
Compensation
Closed
Grant Victor NJ Division of Workers
Compensation - Essex
NJ2011151317 Workers
Compensation
Pending
Green Lyman Division of Workers
Compensation - Bergen
201112847 Workers
Compensation
Pending
Green Lyman Division of Workers
Compensation - Bergen
NJ2010049009 Workers
Compensation
Pending
Green Lyman Division of Workers
Compensation - Bergen
NJ2011154284 Workers
Compensation
Pending
Green,Lyman NJ Division of Workers
Compensation
2006-34961 Workers
Compensation
Closed
Page 8 of 17
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 4a - Suits and administrative proceedings, executions, garnishments and attachments
Case Title Court Case No. Nature of Claim Status
Greig Richard NJ Division of Workers
Compensation - Somerset
2371703 Workers
Compensation
Closed
Hall John Judges of Compensation
Claims - Jacksonville
N/A Workers
Compensation
Pending
Hall Michael Iowa Division of Workers
Claims - Polk
10112404 Workers
Compensation
Pending
Harris James NC Industrial Commission 797970 Workers
Compensation
Closed
Hatton Billy The Industrial Commission of
Ohio - Franklin
6891843 Workers
Compensation
Closed
Hermanson Dan Wisconsin Workers
Compensation Division - Dane
2010028036 Workers
Compensation
Closed
Hinds Nick NY Workers Compesnation
Board - Buffalo District Office
G0039984 Workers
Compensation
Pending
Hopfer Robert NY Workers Compesnation
Board - Buffalo District Office
G0244755 Workers
Compensation
Closed
Hopps David Michigan Workers
Compensation Board of
Magistrates
Not Avalable Workers
Compensation
Closed
Hrinko Bruce NJ Division of Workers
Compensation - Morris
200920214 Workers
Compensation
Closed
Hrinko Bruce NJ Division of Workers
Compensation - Morris
2010044980 Workers
Compensation
Closed
Hulme Steve NY Workers Compesnation
Board - Buffalo District Office
80804402 Workers
Compensation
Pending
Hunt Billy Kentucky Office of Workers
Compensation -Warren
Not Avalable Workers
Compensation
Closed
Illingsworth Robert Maryland Workers
Compensation Commission -
Baltimore
N/A Workers
Compensation
Pending
Page 9 of 17
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 4a - Suits and administrative proceedings, executions, garnishments and attachments
Case Title Court Case No. Nature of Claim Status
Jackson Dennis TN Workers Compensation
Division - 20th Judicial District
1025192010 Workers
Compensation
Pending
James Lovett NJ Division of Workers
Compensation
2004-1445 Workers
Compensation
Closed
Johnston Greg The Industrial Commission of
Ohio - Franklin
9812590 Workers
Compensation
Closed
Kidd Michael Kentucky Department of
Workers Claims
Unknown at this timWorkers
Compensation
Pending
Kiss Ferenc Florida Judges of
Compensation Claims -
Jacksonville
Not Avalable Workers
Compensation
Closed
Koch Mike NY Workers Compesnation
Board - Buffalo District Office
80605973 Workers
Compensation
Closed
Koziorowski Walter Illinois Workers Compensation
Commision -Cook
11WC13543 Workers
Compensation
Pending
Kreger Alan Wisconsin Workers
Compensation Division - Rock
2011000247 Workers
Compensation
Closed
Kroes Calvin Wisconsin Workers
Compensation Division -
Madison
Not Available Workers
Compensation
Pending
Lackie Michael NY Workers Compesnation
Board - Buffalo District Office
G0034466 Workers
Compensation
Pending
Lammy Leroy NJ Division of Workers
Compensation - Essex
Not Available Workers
Compensation
Pending
Lammy Leroy Not Available Not Available Workers
Compensation
Pending
Lammy Leroy NJ Division of Workers
Compensation - Somerset
Not Avalable Workers
Compensation
Closed
Page 10 of 17
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 4a - Suits and administrative proceedings, executions, garnishments and attachments
Case Title Court Case No. Nature of Claim Status
Lane Ronnie Illinois Workers Compensation
Commision -Champaign
10WC046070 Workers
Compensation
Closed
Larry Lester UNASSIGNED ADJ7814359 Workers
Compensation
Pending
Lauder Waseca D Michigan Workers
Compensation Board of
Magistrates
Not Avalable Workers
Compensation
Closed
Lee Richard Division of Workers
Compensation -Oakland
ADJ4396599 Workers
Compensation
Pending
Lee Robert Division of Workers
Compensation - Essex
200826109 Workers
Compensation
Pending
Lentz Gary Ohio Court of Common
Appeals District D
6802867 Workers
Compensation
Pending
Locke John R Michigan Workers
Compensation Board of
Magistrates
n/a -MI claim Workers
Compensation
Pending
Madera Luis NJ Division of Workers
Compensation - Bergen
Not Avalable Workers
Compensation
Closed
Madewell Glenn Not Available Workers
Compensation
Closed
Mannasmith Bruce Not Available Not Available Workers
Compensation
Pending
Marcum Jerry W Alabama Workers
Compensation Division -
Jefferson
ALCV09521 Workers
Compensation
Closed
Marcum Waverly Indiana Workers
Compensation Board - District
1
985302 Workers
Compensation
Pending
Maronas Francisco Florida Judges of
Compensation Claims - Ft.
Lauderdale
Not Avalable Workers
Compensation
Closed
Page 11 of 17
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 4a - Suits and administrative proceedings, executions, garnishments and attachments
Case Title Court Case No. Nature of Claim Status
Maronas Francisco Florida Judges of
Compensation Claims
04-033195AMK Workers
Compensation
Closed
Maronas Francisco J Florida Judges of
Compensation Claims
04-031610KSP Workers
Compensation
Closed
Martin Robert NJ Division of Workers
Compensation - Monmouth
NJ2010123864 Workers
Compensation
Pending
Martin Robert L NJ Division of Workers
Compensation - Monmouth
20074529 Workers
Compensation
Pending
Martin Terry NC Industrial Commission X24342 Workers
Compensation
Pending
Mazza Sergio Division of Workers
Compensation - Ocean
NJ2011201070 Workers
Compensation
Pending
Mccullough Terry Michigan Workers
Compensation Board of
Magistrates
Workers
Compensation
Pending
Mcdonald Larry T Not Available Not Available Workers
Compensation
Pending
Mckoy,Jerome NJ Division of Workers
Compensation
2004-15143 Workers
Compensation
Closed
Mclaurin Lemual B Illinois Workers Compensation
Commision -Cook
07WC19574 Workers
Compensation
Pending
Melkonian Jack Division of Workers
Compensation - Long Beach
ADJ6875413 Workers
Compensation
Pending
Miller Mark E TN Workers Compensation
Division - 20th Judicial District
10804021 Workers
Compensation
Closed
Mir Tauqeer Division of Workers
Compensation - Bergen
NJ2010113760 Workers
Compensation
Pending
Morgan George Florida Judges of
Compensation Claims -
Tampa
Not Avalable Workers
Compensation
Closed
Page 12 of 17
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 4a - Suits and administrative proceedings, executions, garnishments and attachments
Case Title Court Case No. Nature of Claim Status
Morse Timothy Not Available Not Avalable Workers
Compensation
Closed
Mosley Donald Florida Judges of
Compensation Claims -
Jacksonville
11-009381RJH Workers
Compensation
Closed
Mousseau Nicholas Division of Workers
Compensation - Hudson
Not Available Workers
Compensation
Pending
Nardo,Luis Florida Judges of
Compensation Claims
99-001757SMS Workers
Compensation
Closed
Nash Robbie Wisconsin Workers
Compensation Division -
Madison
Not Available Workers
Compensation
Pending
Nelson Ryan California Division of Workers
Compensation - Pomona
ADJ6479192POM Workers
Compensation
Closed
Nestorick David Division of Workers
Compensation - Newark
2011-22348 Workers
Compensation
Pending
Noyes Larry Division of Workers
Compensation - Long Beach
ADJ7593598 Workers
Compensation
Pending
Owenby Gordon Florida Judges of
Compensation Claims -
Jacksonville
Not Avalable Workers
Compensation
Closed
Palacios Fredi NJ Division of Workers
Compensation - Essex
NJ2011247716 Workers
Compensation
Pending
Peltier James Division of Workers
Compensation - Los Angeles
ANA407064 Workers
Compensation
Pending
Peltier James California Division of Workers
Compensation - Los Angeles
ANA407062 Workers
Compensation
Closed
Peralta,Julio NJ Division of Workers
Compensation
2005-19156 Workers
Compensation
Pending
Peters Nicholas NJ Division of Workers
Compensation - Essex
Not Available Workers
Compensation
Pending
Pineda Jorge Division of Workers
Compensation - Passaic
NJ2011182525 Workers
Compensation
Pending
Page 13 of 17
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 4a - Suits and administrative proceedings, executions, garnishments and attachments
Case Title Court Case No. Nature of Claim Status
Pineda Jorge Not Available Not Available Workers
Compensation
Pending
Poindexter Stanley NC Industrial Commission 120990 Workers
Compensation
Pending
Polewczak Richard Division of Workers
Compensation - Middlesex
NJ2012346166 Workers
Compensation
Pending
Polewczak Richard NJ Division of Workers
Compensation
2007-11414 Workers
Compensation
Closed
Ponds L D Division of Workers
Compensation - Anaheim
ADJ261101 Workers
Compensation
Pending
Ponds Ld Division of Workers
Compensation - Anaheim
ADJ3361242 Workers
Compensation
Pending
Ponds Ld Division of Workers
Compensation - Anaheim
ADJ7985251 Workers
Compensation
Pending
Poore Herchel California Division of Workers
Compensation - Riverside
Not Avalable Workers
Compensation
Closed
Pugh Darius Maryland Workers
Compensation Commission -
Baltimore
B748447 Workers
Compensation
Closed
Radick Warren Michigan Workers
Compensation Board of
Magistrates
Not Avalable Workers
Compensation
Closed
Ray Kevin Alaska Workers Compensation
Board - Fairfax
200919001 Workers
Compensation
Closed
Reese Jeffrey Indiana Workers
Compensation Board - District
1
N/A Workers
Compensation
Pending
Rivera Rafael Division of Workers
Compensation - Bergen
NJ2010052191 Workers
Compensation
Pending
Rivera Rafael Division of Workers
Compensation - Union
NJ2011171921 Workers
Compensation
Pending
Page 14 of 17
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 4a - Suits and administrative proceedings, executions, garnishments and attachments
Case Title Court Case No. Nature of Claim Status
Roark Virgil Indiana Workers
Compensation Board - District
1
1011240 Workers
Compensation
Pending
Robinson Lamont Maryland Workers
Compensation Commission -
Baltimore
B692110 Workers
Compensation
Pending
Rodriguez Dennis Michigan Workers
Compensation Board of
Magistrates
Not Avalable Workers
Compensation
Closed
Roediger Jon The Industrial Commission of
Ohio - Franklin
9815931 Workers
Compensation
Pending
Roman Dorian Division of Workers
Compensation - Union
NJ2010113201 Workers
Compensation
Pending
Savage John Michigan Workers
Compensation Board of
Magistrates
Not Avalable Workers
Compensation
Closed
Sciole Michael Florida Judges of
Compensation Claims -
Tampa
Not Avalable Workers
Compensation
Closed
Scott Anthony Not Available 2008024189 Workers
Compensation
Closed
Seraphin Yves NJ Division of Workers
Compensation - Exxex
Not Avalable Workers
Compensation
Closed
Serrano Raul NJ Division of Workers
Compensation - Freehold
2008-14672 Workers
Compensation
Pending
Shannon,Stanley NJ Division of Workers
Compensation
1999-24247 Workers
Compensation
Pending
Shannon,Stanley NJ Division of Workers
Compensation
1999-24299 Workers
Compensation
Pending
Simicevic Louis NY Workers Compesnation
Board - Syracuse District
Office
N/A Workers
Compensation
Pending
Page 15 of 17
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 4a - Suits and administrative proceedings, executions, garnishments and attachments
Case Title Court Case No. Nature of Claim Status
Simicevic Louis NY Workers Compesnation
Board - Syracuse District
Office
G0267639 Workers
Compensation
Closed
Smith David Wisconsin Workers
Compensation Division - Dane
Not Avalable Workers
Compensation
Closed
Smith Paul Minnesota Workers
Compensation Division
5617667 Workers
Compensation
Pending
Smith Richard Not Available W42440 Workers
Compensation
Closed
Soca Fernando Division of Workers
Compensation - Ocean
NJ2011169477 Workers
Compensation
Pending
South James P The Industrial Commission of
Ohio - Franklin
8829495 Workers
Compensation
Pending
Suser Jack Division of Workers
Compensation - Bergen
201012847 Workers
Compensation
Pending
Szabo Steven NJ Division of Workers
Compensation - Bergen
Not Avalable Workers
Compensation
Closed
Trotman Lucien California Division of Workers
Compensation - Los Angeles
ADJ6951226 Workers
Compensation
Closed
Tuttle Frank Judges of Compensation
Claims - Orlando
N/A Workers
Compensation
Pending
Urschel James Division of Workers
Compensation - Burlington
1007272 Workers
Compensation
Pending
Vanmatre Lewis Circuit Court - 6th District 40702009 Workers
Compensation
Pending
Vazzona Micheal NJ Division of Workers
Compensation - Hudson
Not Avalable Workers
Compensation
Closed
Wade Larry TN Workers Compensation
Division - 20th Judicial District
Not Avalable Workers
Compensation
Closed
Wallace,Robert Florida Judges of
Compensation Claims
08-022848WRH Workers
Compensation
Closed
Page 16 of 17
Allied Systems Holdings, Inc.
Case No. 12-11564
SOFA 4a - Suits and administrative proceedings, executions, garnishments and attachments
Case Title Court Case No. Nature of Claim Status
Wanton George Florida Judges of
Compensation Claims -
Tallahassee
Not Avalable Workers
Compensation
Closed
Watkins Robert Kentucky Office of Workers
Compensation -
Not Avalable Workers
Compensation
Closed
Wilkie Jack TN Workers Compensation
Division - 20th Judicial District
977232010 Workers
Compensation
Pending
Williams Ervin Judges of Compensation
Claims - Jacksonville
N/A Workers
Compensation
Pending
Willis Jr Lionel L Virginia Workers
Compensation Commission
2297443 Workers
Compensation
Pending
Wisniewski Dave NY Workers Compesnation
Board - Buffalo District Office
G0135869 Workers
Compensation
Closed
Woodward Dewayne TN Workers Compensation
Division - 20th Judicial District
729372010 Workers
Compensation
Pending
Yonce John Not Available 883160 Workers
Compensation
Closed
Young William NJ Division of Workers
Compensation - Essex
NJ2011207704 Workers
Compensation
Pending
Zerman Lucinda Not Available Not Available Workers
Compensation
Pending
Zigler Thomas Wisconsin Workers
Compensation Division - Dane
2011030157 Workers
Compensation
Closed
Page 17 of 17
B6 Declaration (Official Form 6- Declaration) (12/07)
In re Allied Systems Holdings, Inc. CaseNo. 12-11564
Debtor
DECLARATION CONCERNING DEBTOR'S STATEMENT OF
FINANCIAL AFFAIRS
DECLARATION UNDER PENALTY OF PERJURY ON BEHALF OF A CORPORATION OR PARTNERSHIP
I declare under penalty of perjury that I have read the answers contained in the foregoing statement of fmancial
affairs and any attachments thereto and that they are true and correct to the best of my knowledge, information and
belief.
Date: Signature ~
Scott Macaulay
Chief Financial Officer, Senior Vice-Presi
Assistant Secretary
Allied Systems Holdings, Inc.
__ continuation sheets attached
Penalty for making a false statement: Fine of up to $500,000 or imprisonment for up to 5 years, or both. 18 U.S. C. 152 and 3571
39
07/25/2012
EXHIBITV
Schulte Roth&Zabel LLP
Writer's Direct Number
212.756.2253
VIA EMAIL
Jeffrey W. Kelley, Esq.
Troutman Sanders LLP
600 Peachtree Street, NE Suite 5200
Atlanta, Georgia 30308-2216
919 Third Avenue
New York, NY 10022
212.756.2000
212.593.5955 fax
www.srz.com
July 30, 2012
Writer's E-mail Address
adam.harris@srz.com
Re: In re Allied Systems Holdings, Inc. et al., Case No. 12-11564 (Jointly Administered)(CSS)
Dear Jeff:
As you know, we are counsel for BDCM Opportunity Fund II, LP, Black Diamond CLO
2005-1 Ltd., and Spectrum Investment Partners, L.P. the petitioning creditors (the "Petitioning
Creditors") in the above-captioned bankruptcy cases. We write with the respect to certain
concerns the Petitioning Creditors have regarding the Statements of Financial Affairs ("SOP A")
filed by each of the Debtors on July 25, 2012 [D.I. 263- 290].
As we discussed in our telephone call on Friday morning, prior to July 25th, I was
informed by Robert Klyman, of Latham & Watkins, LLP, counsel for Yucaipa American
Alliance Fund I, LP and Yucaipa American Alliance (Parallel) Fund I, LP (collectively,
"Yucaipa"), that during the twelve month period immediately preceding June 10, 2012, the
"Petition Date" as defined in the SOFA's, the Debtors made payments to or for the benefit of
Yucaipa in the amount of approximately $750,000 (the "Transfer"). According to Mr. Klyman,
the Transfer was made in respect of legal fees and expenses incurred by Yucaipa in connection
with the litigation brought by Yucaipa and the Debtors against The CIT Group/Business Credit,
Inc. ("CIT") in Fulton County, Georgia (the "Georgia Action"). Notwithstanding Mr. Klyman's
representation to me that the Transfer had been made, the Transfer is not included in any of the
Debtors' SOFAs.
Question 3(c), of the standard form Statement of Financial Affairs requires a debtor to
disclose "all payments made within one year immediately preceding the commencement of this
case to or for the benefit of creditors who are or were insiders" (emphasis supplied). Yucaipa
clearly falls within the Bankruptcy Code's definition of "insider" by virtue of, among other
things, its ownership of approximately 70% of the equity of Allied Systems Holdings, Inc. As a
DOC ID-18955579.3
Jeffrey W. Kelley, Esq.
July 30, 2012
Page2
result, the Transfer disclosed by Mr. Klyman should have been disclosed in response to this
Question.
In reviewing the Debtors' SOFA's, however, it appears that the Debtors here took it upon
themselves to ignore the disclosure parameters required by the standard form Statement of
Financial Affairs, and to narrow the scope of such disclosure. More specifically, in the
Statement of Limitations, Methodology and Disclaimer Regarding the Debtors' Schedules and
Statements (a document created by the Debtors; the "Disclaimer") the Debtors chose to reduce
the scope of the required disclosures, and to limit the disclosures of transfers to "insiders" to only
the following:
[all] payments made by the Debtors over the 12 months preceding
the Petition Date to any individual deemed an 'insider.'
As a result of this inappropriate narrowing of the mandated scope of disclosure, it appears
that the Debtors' SOFA's improperly do not disclose payments (i) to "insiders" that are not
individuals (i.e., entities, institutions), and (ii) payments made "for the benefit of' insiders (i.e.,
as opposed to only payments directly to insiders).
We demand that the Debtors immediately provide us with detailed information on all
transfers to or for the benefit of "insiders" that, but for the improper limitation imposed by the
Disclaimer, would have been disclosed had the Debtors actually responded to the standard form
of Question 3(c), including (without limitation) the Transfer.
We will expect to receive the information demanded by no later than Wednesday, August
1st at 4pm EDT. If the Debtors do not timely respond with the required disclosures, we will take
the necessary steps to bring this matter to the attention of the Court.
This letter is without waiver or prejudice to any of our clients' rights or remedies, all of
which are expressly reserved.
Very truly yours,
Adam C. Harris
DOC ID-18955579.3
EXHIBITW
Schneider, Erik
From: Kelley, Jeffrey W. [Jeffrey.Kelley@troutmansanders.com]
Sent: Tuesday, July 31, 2012 11:08 AM
To: Harris, Adam
Cc: Lepore, Victoria
Subject: FW: Allied Systems Holdings Inc. - SOFAs
Attachments: Schedule C additions for Latham and Watkins.xls
10/31/2012
Attached is the itemization. This information will be reflected in a forthcoming amendment to the Allied
Holdings SOFA. JWK



From: Kelley, Jeffrey W.
Sent : Monday, July 30, 2012 2: 29 PM
To: adam.harris@srz.com
Cc: 'Lepore, Vict oria'
Subj ect : FW: Allied Syst ems Holdings I nc. - SOFAs

Adam, I told you when you asked me about this last Thursday that I would get the answers and get back
to you. I have learned that there were payments to Latham and Kasowitz in the year prior. These
payments should have been listed in Allied Holdings response to 3(c) but through inadvertence were
not. The Allied Holdings SOFA will be amended to reflect the payments. There was no intent in
responding the 3(c) to limit the response to individuals. I will send you an itemization of the payments
when I receive it from Allied.

Jeff


Jef f r ey W. Kel l ey, Esq. | Trout man Sanders LLP | 600 Peacht ree St NE, Suit e 5200 | At lant a, GA
30308 | Direct : 404 885 3383 | Mobile: 770 329 6509 | Main: 404 885 3000 | Direct Fax: 404 962
6847 | j effrey.kelley@t rout mansanders.com | www.t rout mansanders.com


From: Lepore, Vict oria [ mailt o: Vict oria.Lepore@srz.com]
Sent : Monday, July 30, 2012 12: 40 PM
To: Kelley, Jeffrey W.
Cc: Harris, Adam
Subj ect : Allied Syst ems Holdings I nc. - SOFAs

Please see the attached.

Victoria A. Lepore
212.756.2027
victoria.lepore@srz.com

Schulte Roth & Zabel LLP
919 Third Avenue, New York, NY 10022
212.756.2000 | 212.593.5955 fax



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communication was not intended or written to be used, and cannot be used, for the
purpose of avoiding U.S. federal tax penalties.
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10/31/2012
Name Description Check # Date Amount
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP LEGAL FEES 000004124 6/30/2011 100,000.00 $
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP LEGAL FEES 900031005 9/7/2011 117,321.71 $
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP LEGAL FEES 005958 10/12/2011 200,000.00 $
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP LEGAL FEES 000004233 11/23/2011 100,000.00 $
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP LEGAL FEES 000004243 12/9/2011 75,000.00 $
KASOWITZ, BENSON, TORRES & FRIEDMAN LLP LEGAL FEES 000004247 12/15/2011 75,000.00 $
Total 667,321.71 $
LATHAM & WATKINS LLP LEGAL FEES 000004253 12/27/2011 139,256.33 $
EXHIBIT X


RLF1 6369802v. 1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re:
ALLIED SYSTEMS HOLDINGS, INC., et al.,
1


Debtors.
Chapter 11
Case No. 12-11564 (CSS)
(Jointly Administered)

Re: Docket No. 297
NOTICE OF FILING OF AMENDMENT TO DEBTOR ALLIED SYSTEMS
HOLDINGS, INC.S STATEMENT OF
FINANCIAL AFFAIRS 3(c) - PAYMENTS TO INSIDERS
PLEASE TAKE NOTICE that on July 25, 2012, Allied Systems Holdings, Inc.
(Allied), one of the debtors and debtors in possession in the above-captioned chapter 11 cases
(the Chapter 11 Cases), filed its Statement of Financial Affairs [Docket No. 297] (the
SoFA) with the United States Bankruptcy Court for the District of Delaware (the
Bankruptcy Court).
PLEASE TAKE FURTHER NOTICE that today, Allied filed an amendment to
the SoFA with the Bankruptcy Court, indicating that prior to the filing of the commencement of
the Chapter 11 Cases, Allied made payments to Kasowitz, Benson, Torres & Friedman LLP and
Latham & Watkins LLC (the SoFA 3(c) Amendment). A copy of the SoFA 3(c) Amendment
is attached hereto as Exhibit 1.

1
The Debtors in these cases, along with the federal tax identification number (or Canadian business number
where applicable) for each of the Debtors, are: Allied Systems Holdings, Inc. (58-0360550); Allied Automotive
Group, Inc. (58-2201081); Allied Freight Broker LLC (59-2876864); Allied Systems (Canada) Company (90-
0169283); Allied Systems, Ltd. (L.P.) (58-1710028); Axis Areta, LLC (45-5215545); Axis Canada Company
(875688228); Axis Group, Inc. (58-2204628); Commercial Carriers, Inc. (38-0436930); CT Services, Inc. (38-
2918187); Cordin Transport LLC (38-1985795); F.J. Boutell Driveaway LLC (38-0365100); GACS Incorporated
(58-1944786); Logistic Systems, LLC (45-4241751); Logistic Technology, LLC (45-4242057); QAT, Inc. (59-
2876863); RMX LLC (31-0961359); Transport Support LLC (38-2349563); and Terminal Services LLC (91-
0847582). The location of the Debtors corporate headquarters and the Debtors address for service of process is
2302 Parklake Drive, Bldg. 15, Ste. 600, Atlanta, Georgia 30345.

RLF1 6369802v. 1
- 2 -
PLEASE TAKE FURTHER NOTICE that copies of the SoFA, the SoFA 3(c)
Amendment, and all other documents filed in the Chapter 11 Cases are available free of charge at
www.omnimgt.com/alliedsystems.
Dated: July 31, 2012
Wilmington, Delaware
/s/ Marisa A. Terranova ______________
Mark D. Collins (No. 2981)
Christopher M. Samis (No. 4909)
Marisa A. Terranova (No. 5396)
RICHARDS, LAYTON & FINGER, P.A.
One Rodney Square
920 North King Street
Wilmington, Delaware 19801
Telephone: (302) 651-7700
Facsimile: (302) 651-7701
E-mail: collins@rlf.com
E-mail: samis@rlf.com
E-mail: terranova@rlf.com
-and-

Jeffrey W. Kelley (GA Bar No. 412296)
Ezra H. Cohen (GA Bar No. 173800)
TROUTMAN SANDERS LLP
Bank of America Plaza
600 Peachtree Street, Suite 5200
Atlanta, Georgia 30308-2216
Telephone No.: (404) 885-3000
Facsimile No.: (404) 885-3900
E-Mail: jeffrey.kelley@troutmansanders.com
E-Mail: ezra.cohen@troutmansanders.com

Counsel for Debtors and Debtors-in-Possession




RLF1 6369802v. 1
EXHIBIT 1
AMENDED STATEMENT OF FINANCIAL AFFAIRS

EXHIBIT 3c

PAYMENTS TO INSIDERS
Allied Systems Holdings, Inc., et al.
Case No. 12-11564
SOFA 3c - Payments to creditors (insiders)
Name Description Check # Check Date Amount
John Blount Car Allowance 100379563 6/15/2011 350.00 $
John Blount Airfare 9001118 6/24/2011 1,800.40 $
John Blount Hotel 9001118 6/24/2011 396.74 $
John Blount Meals 9001118 6/24/2011 233.87 $
John Blount Other 9001118 6/24/2011 51.95 $
John Blount Phone 100383358 6/30/2011 146.92 $
John Blount Car Allowance 100383358 6/30/2011 350.00 $
John Blount Other 100386104 7/15/2011 15.00 $
John Blount Phone 100386104 7/15/2011 202.46 $
John Blount Car Allowance 100386104 7/15/2011 350.00 $
John Blount Airfare 9001121 7/20/2011 1,564.80 $
John Blount Hotel 9001121 7/20/2011 18.72 $
John Blount Meals 9001121 7/20/2011 38.90 $
John Blount Other 9001121 7/20/2011 185.03 $
John Blount Car Rental 9001121 7/20/2011 107.86 $
John Blount Car Allowance 100388681 7/29/2011 350.00 $
John Blount Car Allowance 100390795 8/15/2011 350.00 $
John Blount Airfare 100393160 8/31/2011 353.40 $
John Blount Phone 100393160 8/31/2011 209.76 $
John Blount Car Allowance 100393160 8/31/2011 350.00 $
John Blount Bonus 9001129 9/1/2011 266,048.64 $
John Blount Airfare 100396578 9/15/2011 1,080.33 $
John Blount Hotel 100396578 9/15/2011 464.55 $
John Blount Meals 100396578 9/15/2011 317.74 $
John Blount Other 100396578 9/15/2011 191.00 $
John Blount Car Rental 100396578 9/15/2011 193.08 $
John Blount Car Allowance 100396578 9/15/2011 350.00 $
John Blount Airfare 100399233 9/30/2011 2,736.76 $
John Blount Hotel 100399233 9/30/2011 572.93 $
John Blount Meals 100399233 9/30/2011 171.39 $
John Blount Other 100399233 9/30/2011 170.00 $
John Blount Car Rental 100399233 9/30/2011 193.08 $
John Blount Car Allowance 100399233 9/30/2011 350.00 $
John Blount Airfare 100401772 10/14/2011 1,648.85 $
John Blount Hotel 100401772 10/14/2011 493.57 $
John Blount Meals 100401772 10/14/2011 356.67 $
John Blount Other 100401772 10/14/2011 11.47 $
John Blount Car Rental 100401772 10/14/2011 (193.08) $
John Blount Car Allowance 100401772 10/14/2011 350.00 $
John Blount Airfare 100404208 10/31/2011 1,703.80 $
John Blount Phone 100404208 10/31/2011 357.86 $
John Blount Car Allowance 100404208 10/31/2011 350.00 $
John Blount Hotel 100407998 11/15/2011 1,199.26 $
John Blount Meals 100407998 11/15/2011 320.13 $
John Blount Other 100407998 11/15/2011 172.95 $
John Blount Phone 100407998 11/15/2011 206.41 $
John Blount Car Allowance 100407998 11/15/2011 350.00 $
John Blount Car Allowance 100409905 11/30/2011 350.00 $
John Blount Airfare 100413266 12/15/2011 1,966.80 $
John Blount Hotel 100413266 12/15/2011 378.19 $
John Blount Meals 100413266 12/15/2011 121.97 $
John Blount Other 100413266 12/15/2011 313.00 $
Page 1 of 7
Allied Systems Holdings, Inc., et al.
Case No. 12-11564
SOFA 3c - Payments to creditors (insiders)
Name Description Check # Check Date Amount
John Blount Phone 100413266 12/15/2011 208.86 $
John Blount Car Rental 100413266 12/15/2011 124.28 $
John Blount Car Allowance 100413266 12/15/2011 350.00 $
John Blount Hotel 100415646 12/30/2011 7.68 $
John Blount Phone 100415646 12/30/2011 138.41 $
John Blount Car Allowance 100415646 12/30/2011 350.00 $
John Blount Car Allowance 100418605 1/13/2012 350.00 $
John Blount Airfare 9001147 1/17/2012 2,908.98 $
John Blount Hotel 9001147 1/17/2012 8.40 $
John Blount Meals 9001147 1/17/2012 295.49 $
John Blount Other 9001147 1/17/2012 592.00 $
John Blount Phone 9001147 1/17/2012 206.61 $
John Blount Car Allowance 100421939 1/31/2012 350.00 $
John Blount Airfare 100424581 2/15/2012 1,207.37 $
John Blount Hotel 100424581 2/15/2012 286.74 $
John Blount Meals 100424581 2/15/2012 19.25 $
John Blount Other 100424581 2/15/2012 123.95 $
John Blount Phone 100424581 2/15/2012 196.91 $
John Blount Car Allowance 100424581 2/15/2012 350.00 $
John Blount Car Allowance 100426540 2/29/2012 350.00 $
John Blount Airfare 100428843 3/15/2012 3,461.35 $
John Blount Hotel 100428843 3/15/2012 555.04 $
John Blount Meals 100428843 3/15/2012 699.40 $
John Blount Other 100428843 3/15/2012 62.92 $
John Blount Car Allowance 100428843 3/15/2012 350.00 $
John Blount Car Allowance 100431001 3/30/2012 350.00 $
John Blount Car Allowance 100433583 4/13/2012 350.00 $
John Blount Hotel 100433583 4/13/2012 525.32 $
John Blount Meals 100433583 4/13/2012 114.22 $
John Blount Other 100433583 4/13/2012 16.89 $
John Blount Car Allowance 100435843 4/30/2012 350.00 $
John Blount Airfare 9001154 5/15/2012 6,686.64 $
John Blount Hotel 9001154 5/15/2012 919.11 $
John Blount Meals 9001154 5/15/2012 129.72 $
John Blount Other 9001154 5/15/2012 747.60 $
John Blount Phone 9001154 5/15/2012 517.33 $
John Blount Car Allowance 100438098 5/15/2012 350.00 $
John Blount Car Allowance 100441339 5/31/2012 350.00 $
John Blount Salary Various Various 300,000.00 $
615,683.63 $
Brian Cullen Director Fees 900030918 7/5/2011 12,500.00 $
Brian Cullen Director Fees 900031039 10/3/2011 12,500.00 $
Brian Cullen Director Fees 900031175 1/3/2012 12,500.00 $
Brian Cullen Director Fees 900031297 4/2/2012 12,500.00 $
50,000.00 $
Mark J. Gendregske Airfare 9001115 6/7/2011 1,178.20 $
Mark J. Gendregske Hotel 9001115 6/7/2011 46.14 $
Mark J. Gendregske Meals 9001115 6/7/2011 195.10 $
Mark J. Gendregske Other 9001115 6/7/2011 573.40 $
Mark J. Gendregske Phone 9001115 6/7/2011 197.10 $
Mark J. Gendregske Car Allowance 100379564 6/15/2011 500.00 $
Mark J. Gendregske Airfare 9001116 6/22/2011 2,166.10 $
John Blount - Total
Brian Cullen - Total
Page 2 of 7
Allied Systems Holdings, Inc., et al.
Case No. 12-11564
SOFA 3c - Payments to creditors (insiders)
Name Description Check # Check Date Amount
Mark J. Gendregske Hotel 9001116 6/22/2011 36.99 $
Mark J. Gendregske Meals 9001116 6/22/2011 245.83 $
Mark J. Gendregske Other 9001116 6/22/2011 95.10 $
Mark J. Gendregske Airfare 9001120 6/30/2011 274.00 $
Mark J. Gendregske Hotel 9001120 6/30/2011 381.89 $
Mark J. Gendregske Meals 9001120 6/30/2011 817.26 $
Mark J. Gendregske Other 9001120 6/30/2011 472.14 $
Mark J. Gendregske Car Rental 9001120 6/30/2011 95.50 $
Mark J. Gendregske Car Allowance 100383359 6/30/2011 500.00 $
Mark J. Gendregske Car Allowance 100386105 7/15/2011 500.00 $
Mark J. Gendregske Airfare 9001122 7/21/2011 652.00 $
Mark J. Gendregske Hotel 9001122 7/21/2011 76.02 $
Mark J. Gendregske Meals 9001122 7/21/2011 400.71 $
Mark J. Gendregske Other 9001122 7/21/2011 805.19 $
Mark J. Gendregske Phone 9001122 7/21/2011 160.50 $
Mark J. Gendregske Airfare 9001123 7/22/2011 418.80 $
Mark J. Gendregske Meals 9001123 7/22/2011 288.03 $
Mark J. Gendregske Other 9001123 7/22/2011 5.00 $
Mark J. Gendregske Car Allowance 100388682 7/29/2011 500.00 $
Mark J. Gendregske Airfare 9001126 8/5/2011 416.00 $
Mark J. Gendregske Hotel 9001126 8/5/2011 41.22 $
Mark J. Gendregske Meals 9001126 8/5/2011 500.32 $
Mark J. Gendregske Other 9001126 8/5/2011 341.00 $
Mark J. Gendregske Car Allowance 100390796 8/15/2011 500.00 $
Mark J. Gendregske Airfare 9001127 8/17/2011 407.50 $
Mark J. Gendregske Hotel 9001127 8/17/2011 261.49 $
Mark J. Gendregske Meals 9001127 8/17/2011 215.75 $
Mark J. Gendregske Other 9001127 8/17/2011 1,129.60 $
Mark J. Gendregske Phone 9001127 8/17/2011 203.12 $
Mark J. Gendregske Car Allowance 100393161 8/31/2011 500.00 $
Mark J. Gendregske Bonus 3004201 9/1/2011 532,097.28 $
Mark J. Gendregske Airfare 9001134 9/7/2011 2,036.65 $
Mark J. Gendregske Hotel 9001134 9/7/2011 106.98 $
Mark J. Gendregske Meals 9001134 9/7/2011 3,492.20 $
Mark J. Gendregske Other 9001134 9/7/2011 20.00 $
Mark J. Gendregske Car Allowance 100396579 9/15/2011 500.00 $
Mark J. Gendregske Airfare 9001135 9/20/2011 1,585.80 $
Mark J. Gendregske Hotel 9001135 9/20/2011 884.87 $
Mark J. Gendregske Meals 9001135 9/20/2011 295.62 $
Mark J. Gendregske Other 9001135 9/20/2011 288.00 $
Mark J. Gendregske Phone 9001135 9/20/2011 192.97 $
Mark J. Gendregske Airfare 9001137 9/22/2011 2,995.20 $
Mark J. Gendregske Hotel 9001137 9/22/2011 333.90 $
Mark J. Gendregske Meals 9001137 9/22/2011 118.67 $
Mark J. Gendregske Other 9001137 9/22/2011 488.10 $
Mark J. Gendregske Car Rental 9001137 9/22/2011 139.90 $
Mark J. Gendregske Car Allowance 100399234 9/30/2011 500.00 $
Mark J. Gendregske Airfare 9001138 10/6/2011 1,263.50 $
Mark J. Gendregske Hotel 9001138 10/6/2011 2,020.21 $
Mark J. Gendregske Meals 9001138 10/6/2011 2,758.44 $
Mark J. Gendregske Other 9001138 10/6/2011 504.46 $
Mark J. Gendregske Airfare 9001140 10/14/2011 2,443.82 $
Page 3 of 7
Allied Systems Holdings, Inc., et al.
Case No. 12-11564
SOFA 3c - Payments to creditors (insiders)
Name Description Check # Check Date Amount
Mark J. Gendregske Hotel 9001140 10/14/2011 200.01 $
Mark J. Gendregske Meals 9001140 10/14/2011 443.42 $
Mark J. Gendregske Other 9001140 10/14/2011 99.00 $
Mark J. Gendregske Phone 9001140 10/14/2011 281.14 $
Mark J. Gendregske Car Allowance 100401773 10/14/2011 500.00 $
Mark J. Gendregske Airfare 9001141 10/28/2011 1,906.73 $
Mark J. Gendregske Hotel 9001142 10/28/2011 602.34 $
Mark J. Gendregske Hotel 9001141 10/28/2011 898.18 $
Mark J. Gendregske Meals 9001142 10/28/2011 449.55 $
Mark J. Gendregske Meals 9001141 10/28/2011 2,880.01 $
Mark J. Gendregske Other 9001142 10/28/2011 70.55 $
Mark J. Gendregske Other 9001141 10/28/2011 409.75 $
Mark J. Gendregske Car Rental 9001141 10/28/2011 306.45 $
Mark J. Gendregske Car Allowance 100404209 10/31/2011 500.00 $
Mark J. Gendregske Airfare 9001143 11/10/2011 1,103.40 $
Mark J. Gendregske Hotel 9001143 11/10/2011 262.07 $
Mark J. Gendregske Meals 9001143 11/10/2011 1,069.99 $
Mark J. Gendregske Other 9001143 11/10/2011 154.00 $
Mark J. Gendregske Phone 9001143 11/10/2011 271.54 $
Mark J. Gendregske Car Allowance 100407999 11/15/2011 500.00 $
Mark J. Gendregske Car Allowance 100409906 11/30/2011 500.00 $
Mark J. Gendregske Airfare 9001144 12/8/2011 2,915.40 $
Mark J. Gendregske Hotel 9001144 12/8/2011 74.97 $
Mark J. Gendregske Meals 9001144 12/8/2011 2,054.19 $
Mark J. Gendregske Other 9001144 12/8/2011 1,025.94 $
Mark J. Gendregske Phone 9001144 12/8/2011 173.72 $
Mark J. Gendregske Car Allowance 100413267 12/15/2011 500.00 $
Mark J. Gendregske Hotel 9001145 12/20/2011 54.51 $
Mark J. Gendregske Meals 9001145 12/20/2011 2,305.75 $
Mark J. Gendregske Other 9001145 12/20/2011 354.70 $
Mark J. Gendregske Car Allowance 100415647 12/30/2011 500.00 $
Mark J. Gendregske Airfare 9001146 1/11/2012 230.20 $
Mark J. Gendregske Hotel 9001146 1/11/2012 10.23 $
Mark J. Gendregske Meals 9001146 1/11/2012 1,240.79 $
Mark J. Gendregske Other 9001146 1/11/2012 484.00 $
Mark J. Gendregske Phone 9001146 1/11/2012 170.99 $
Mark J. Gendregske Car Allowance 100418606 1/13/2012 500.00 $
Mark J. Gendregske Airfare 9001148 1/17/2012 1,548.80 $
Mark J. Gendregske Hotel 9001148 1/17/2012 660.28 $
Mark J. Gendregske Meals 9001148 1/17/2012 94.40 $
Mark J. Gendregske Other 9001148 1/17/2012 76.00 $
Mark J. Gendregske Apartment Rent 4273 1/23/2012 118.97 $
Mark J. Gendregske Apartment Rent 4274 1/23/2012 3,450.00 $
Mark J. Gendregske Airfare 9001149 1/27/2012 503.00 $
Mark J. Gendregske Hotel 9001149 1/27/2012 455.64 $
Mark J. Gendregske Meals 9001149 1/27/2012 861.95 $
Mark J. Gendregske Other 9001149 1/27/2012 32.00 $
Mark J. Gendregske Car Allowance 100421940 1/31/2012 500.00 $
Mark J. Gendregske Apartment Rent 4283 2/7/2012 500.00 $
Mark J. Gendregske Car Allowance 100424582 2/15/2012 500.00 $
Mark J. Gendregske Airfare 9001151 2/20/2012 3,630.80 $
Mark J. Gendregske Hotel 9001151 2/20/2012 22.50 $
Page 4 of 7
Allied Systems Holdings, Inc., et al.
Case No. 12-11564
SOFA 3c - Payments to creditors (insiders)
Name Description Check # Check Date Amount
Mark J. Gendregske Meals 9001151 2/20/2012 502.23 $
Mark J. Gendregske Other 9001151 2/20/2012 72.60 $
Mark J. Gendregske Phone 9001151 2/20/2012 178.03 $
Mark J. Gendregske Hotel 9001152 2/21/2012 567.99 $
Mark J. Gendregske Meals 9001152 2/21/2012 615.72 $
Mark J. Gendregske Other 9001152 2/21/2012 554.00 $
Mark J. Gendregske Car Allowance 100426541 2/29/2012 500.00 $
Mark J. Gendregske Apartment Rent 4299 3/2/2012 3,450.00 $
Mark J. Gendregske Car Allowance 100428844 3/15/2012 500.00 $
Mark J. Gendregske Hotel 100428844 3/15/2012 171.22 $
Mark J. Gendregske Meals 100428844 3/15/2012 1,114.27 $
Mark J. Gendregske Other 100428844 3/15/2012 25.99 $
Mark J. Gendregske Car Allowance 100431002 3/30/2012 500.00 $
Mark J. Gendregske Apartment Rent 4318 4/2/2012 3,450.00 $
Mark J. Gendregske Airfare 100433584 4/13/2012 2,639.59 $
Mark J. Gendregske Hotel 100433584 4/13/2012 576.83 $
Mark J. Gendregske Meals 100433584 4/13/2012 47.23 $
Mark J. Gendregske Other 100433584 4/13/2012 266.00 $
Mark J. Gendregske Car Allowance 100433584 4/13/2012 500.00 $
Mark J. Gendregske Airfare 100435844 4/30/2012 431.80 $
Mark J. Gendregske Hotel 100435844 4/30/2012 505.37 $
Mark J. Gendregske Meals 100435844 4/30/2012 1,148.95 $
Mark J. Gendregske Other 100435844 4/30/2012 1,710.43 $
Mark J. Gendregske Car Allowance 100435844 4/30/2012 500.00 $
Mark J. Gendregske Apartment Rent 4332 5/1/2012 3,450.00 $
Mark J. Gendregske Airfare 9001156 5/15/2012 1,448.20 $
Mark J. Gendregske Airfare 9001155 5/15/2012 2,799.35 $
Mark J. Gendregske Meals 9001156 5/15/2012 466.88 $
Mark J. Gendregske Meals 9001155 5/15/2012 738.13 $
Mark J. Gendregske Other 9001156 5/15/2012 298.43 $
Mark J. Gendregske Other 9001155 5/15/2012 361.02 $
Mark J. Gendregske Phone 9001155 5/15/2012 530.60 $
Mark J. Gendregske Phone 9001156 5/15/2012 850.58 $
Mark J. Gendregske Car Allowance 100438099 5/15/2012 500.00 $
Mark J. Gendregske Airfare 9001157 5/16/2012 608.20 $
Mark J. Gendregske Hotel 9001157 5/16/2012 253.00 $
Mark J. Gendregske Other 9001157 5/16/2012 80.51 $
Mark J. Gendregske Airfare 9001159 5/22/2012 399.60 $
Mark J. Gendregske Meals 9001159 5/22/2012 380.66 $
Mark J. Gendregske Other 9001159 5/22/2012 143.28 $
Mark J. Gendregske Car Allowance 100441340 5/31/2012 500.00 $
Mark J. Gendregske Apartment Rent 4360 6/8/2012 3,450.00 $
Mark J. Gendregske Salary Various Various 600,000.00 $
1,247,908.12 $
Kasowitz, Benson, Torres & Friedman LLP Legal Fees 000004124 6/30/2011 100,000.00 $
Kasowitz, Benson, Torres & Friedman LLP Legal Fees 900031005 9/7/2011 117,321.71 $
Kasowitz, Benson, Torres & Friedman LLP Legal Fees 005958 10/12/2011 200,000.00 $
Kasowitz, Benson, Torres & Friedman LLP Legal Fees 000004233 11/23/2011 100,000.00 $
Kasowitz, Benson, Torres & Friedman LLP Legal Fees 000004243 12/9/2011 75,000.00 $
Kasowitz, Benson, Torres & Friedman LLP Legal Fees 000004247 12/15/2011 75,000.00 $
667,321.71 $
Mark J. Gendregske - Total
Kasowitz, Benson, Torres & Friedman LLP - Total
Page 5 of 7
Allied Systems Holdings, Inc., et al.
Case No. 12-11564
SOFA 3c - Payments to creditors (insiders)
Name Description Check # Check Date Amount
Latham & Watkins LLP Legal Fees 000004253 12/27/2011 139,256.33 $
139,256.33 $
Scott D. Macaulay Car Allowance 100379558 6/15/2011 325.00 $
Scott D. Macaulay Phone 9001119 6/28/2011 259.98 $
Scott D. Macaulay Car Allowance 100383353 6/30/2011 325.00 $
Scott D. Macaulay Car Allowance 100386099 7/15/2011 325.00 $
Scott D. Macaulay Meals 9001124 7/25/2011 90.32 $
Scott D. Macaulay Other 9001124 7/25/2011 1,379.75 $
Scott D. Macaulay Car Allowance 100388676 7/29/2011 325.00 $
Scott D. Macaulay Car Allowance 100390790 8/15/2011 325.00 $
Scott D. Macaulay Car Allowance 100393155 8/31/2011 325.00 $
Scott D. Macaulay Phone 100393155 8/31/2011 129.99 $
Scott D. Macaulay Bonus 9001128 9/1/2011 186,700.80 $
Scott D. Macaulay Phone 100396573 9/15/2011 129.99 $
Scott D. Macaulay Car Allowance 100396573 9/15/2011 325.00 $
Scott D. Macaulay Car Allowance 100399228 9/30/2011 325.00 $
Scott D. Macaulay Car Allowance 100401767 10/14/2011 325.00 $
Scott D. Macaulay Car Allowance 100404203 10/31/2011 325.00 $
Scott D. Macaulay Car Allowance 100407993 11/15/2011 325.00 $
Scott D. Macaulay Car Allowance 100409900 11/30/2011 325.00 $
Scott D. Macaulay Phone 100409900 11/30/2011 159.98 $
Scott D. Macaulay Phone 100413261 12/15/2011 116.99 $
Scott D. Macaulay Car Allowance 100413261 12/15/2011 325.00 $
Scott D. Macaulay Car Allowance 100415641 12/30/2011 325.00 $
Scott D. Macaulay Car Allowance 100418600 1/13/2012 325.00 $
Scott D. Macaulay Car Allowance 100421934 1/31/2012 325.00 $
Scott D. Macaulay Airfare 100424576 2/15/2012 329.40 $
Scott D. Macaulay Other 100424576 2/15/2012 92.21 $
Scott D. Macaulay Phone 100424576 2/15/2012 233.98 $
Scott D. Macaulay Car Allowance 100424576 2/15/2012 325.00 $
Scott D. Macaulay Car Allowance 100426535 2/29/2012 325.00 $
Scott D. Macaulay Car Allowance 100428838 3/15/2012 325.00 $
Scott D. Macaulay Car Allowance 100430996 3/30/2012 325.00 $
Scott D. Macaulay Other 9001153 4/11/2012 10.00 $
Scott D. Macaulay Phone 9001153 4/11/2012 257.42 $
Scott D. Macaulay Car Allowance 100433578 4/13/2012 325.00 $
Scott D. Macaulay Car Allowance 100435838 4/30/2012 325.00 $
Scott D. Macaulay Car Allowance 100438093 5/15/2012 325.00 $
Scott D. Macaulay Airfare 9001158 5/18/2012 1,051.60 $
Scott D. Macaulay Meals 9001158 5/18/2012 34.77 $
Scott D. Macaulay Other 9001158 5/18/2012 32.00 $
Scott D. Macaulay Car Allowance 100441334 5/31/2012 325.00 $
Scott D. Macaulay Salary Various Various 212,500.08 $
410,984.26 $
Derex Walker Travel Reimbursement 900031007 9/7/2011 1,668.61 $
Derex Walker Travel Reimbursement 900031009 9/12/2011 1,850.51 $
Derex Walker Travel Reimbursement 900031023 9/20/2011 3,651.75 $
Derex Walker Travel Reimbursement 900031027 9/23/2011 590.36 $
Derex Walker Travel Reimbursement 900031073 10/18/2011 95.00 $
Derex Walker Travel Reimbursement 900031093 11/2/2011 158.31 $
Derex Walker Travel Reimbursement 900031117 11/21/2011 1,837.20 $
Derex Walker Travel Reimbursement 900031127 11/28/2011 5,224.74 $
Scott D. Macaulay - Total
Latham & Watkins LLP - Total
Page 6 of 7
Allied Systems Holdings, Inc., et al.
Case No. 12-11564
SOFA 3c - Payments to creditors (insiders)
Name Description Check # Check Date Amount
Derex Walker Travel Reimbursement 900031214 1/27/2012 5,541.46 $
Derex Walker Travel Reimbursement 900031292 3/26/2012 3,269.40 $
23,887.34 $
3,155,041.39 $ Payments to Creditors (Insiders) - Grand Total
Derex Walker - Total
Page 7 of 7
B6 Declaration (Official Form 6- Declaration) (12/07)
In re Allied Systems Holdings, Inc. Case No.. 12-11564
Debtor
DECLARATION CONCERNING DEBTOR'S AMENDED
STATEMENT OF FINANCIAL AFFAIRS
DECLARATION UNDER PENALTY OF PERJURY ON BEHALF OF A CORPORATION OR P ARTNERSIDP
I declare under penalty of perjury that I have read the answers contained in the foregoing statement of fmancial
affairs and any attachments thereto and that they are true and correct to the best of my knowledge, information and
belief.
Date: 7 /3 1/2 0 12
Signatw"e L ~
Scott Macaulay
Chief Financial Officer, Senior Vice-Preside.
_
7
__ continuation sheets attached
Assistant Secretary
Allied Systems Holdings, Inc.
Penalty for making a false statement: Fine of up to $500,000 or imprisonment for up to 5 years, or both. 18 U.S. C. 152 and 3571
EXHIBITY

DOC ID-19184948.3


JOINDER AGREEMENT
THIS JOINDER AGREEMENT (Agreement) is entered into this 25th day of
October, 2012, by BDCM OPPORTUNITY FUND II, LP, BLACK DIAMOND CLO 2005-1
LTD, and SPECTRUM INVESTMENT PARTNERS, L.P., (collectively "Plaintiffs") on the one
hand each of the undersigned First Lien Lenders (collectively the Additional First Lien
Lenders), on the other hand. Plaintiffs and Additional First Lien Lenders may hereinafter be
jointly referred to as Parties and individually as a Party.

RECITALS

WHEREAS on or about January 17, 2012, Plaintiffs filed a civil action in New York
State Supreme Court, Commercial Division, New York County, captioned as BDCM
Opportunity Fund II, LP, Black Diamond CLO 2005-1 LTD, and Spectrum Investment Partners,
L.P., v. Yucaipa American Alliance Fund I, LP and Yucaipa American Alliance (Parallel) Fund
I, L.P., No. 650150/2012 (the Litigation);

WHEREAS Plaintiffs' single cause of action in the Litigation requests a declaratory
judgment to interpret certain provisions of that certain Amended and Restated First Lien Secured
Super-Priority Debtor in Possession and Exit Credit and Guaranty Agreement dated as of May
15, 2007 (the Credit Agreement), including certain provisions contained in the Third
Amendment and Purported Fourth Amendment thereto;

WHEREAS the interests of Additional First Lien Lenders are identical to the interests of
Plaintiffs in the Litigation;

WHEREAS the Parties wish to enter into an agreement to bind themselves to any final
determination rendered in the Litigation;

WHEREAS the Additional First Lien Lenders have consulted with their attorneys and
have determined that being bound to the final determination in the Litigation is in the interest of
promoting judicial economy and avoiding unnecessary duplicative litigation;

NOW, THEREFORE, in consideration of the representations, promises and obligations
contained herein, the Parties hereby agree as follows:

AGREEMENT

1. Each Additional First Lien Lender agrees to be bound by any final determination
rendered in the Litigation, as well as any appeals therefrom.

2. Each Additional First Lien Lender agrees to refrain from assigning or transferring
their rights as Lenders under the Credit Agreement without similarly binding their successors-in-
interest to this Agreement.

DOC ID-19184948.3



3. Each Additional First Lien Lender agrees that Plaintiffs may submit this
Agreement to the Supreme Court of State of New York, County of New York, in connection
with the Litigation, and to the United States Bankruptcy Court for the District of Delaware in
connection with the Chapter 11 cases captioned In re Allied Systems Holdings, Inc., et al. (Case
No. 12-11564).

4. This Agreement may be executed in any number of counterparts, and any
signatures on this agreement transmitted by facsimile or e-mail shall be deemed the equivalent of
originals.

5. The Parties hereby agree that Allied Systems Holdings, Inc. (the Debtor) is an
intended third-party beneficiary of this Agreement and that the Debtor may enforce this
Agreement on its own behalf.


Dated: New York, New York
October 25, 2012

[Signatures follow]




DOC ID-19184948.3

Signature Page to Joinder Agreement
IN WITNESS WHEREOF, each Additional First Lien Lender has executed this Joinder
Agreement as of the date first set forth above.






DOC ID-1 9184948.3
[American Money Management Corporation]
By:
Name:
Title:
Signature Page to Joinder Agreement
'
'
DOC ID-19184948 3
DEL MAR LTD.
By: Q11tl d
Name: David W. Freelove
Title: Director
DEL MAR ASSET MANAGEMENT, LP
By: DEL MAR MANAGEMENT, LLC
P"(ner , aJ,_
By. bJ
Name: David W. Freelove
Title: Managing Member
Signature Page to Joinder Agreement
10/25/2012 THU 14: 01 FAX
DOC ID-19184948.3
MJX ASSET MANAGEMENT LLC, for itself and
as Portfolio Manager on behalf of the following
Additional First Lien Lenders:
By:
Venture II CDO, Limited
Venture III CDO, Limited
Venture IV CDO, Limited
Venture V CDO, Limited
Venture VI CDO, Limited
Venture VII CDO, Limited
Venture VIII CDO, Limited
Venture IX CDO, Limited
Name: Fred Taylor
Title: Managing Directm
Signature Page to Joinder Agreement
1;!]001/001
DOC I D-1 '! 184948.3
Phoenix CLO I, L TO.
By: ING Alternative Asset Management LLC,
as its investment manager
Phoenix CLO II, L TO.
By: ING Alternative Asset Management LLC,
as its investment manager
Phoenix CLO III, LTD.
By: IN Alternative Asset Management LLC,
Signature Page to Joinder Agreement
DOC JD-l916494iU
[Teak Hill! Credit Capital Investments]
By:
Name:
Title:
varKki Chacko
Managing Principal
Cim!it Capitallnvestmenta LLC
On bOOail <:>1

Signature Page to Joinder Agreement
fF&r-FUUr ln:Yest:HletU.J'Aa:tlagOlncnt]
By:
Name:
Title:
Au!llorizetl Signatory
DOC ID-19184948.3
Signature Page to Joinder Agreement