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  1. 1. UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE·--···-----·----·----- -------·--·---·--·-·---·--·-··XIn re: Chapter 11ALLIED SYSTEMS HOLDINGS, INC., Case No. 11-.._[_ __,] ([_]) Alleged Debtor.·----------------------·--·------·-·XIn re: Chapter 11ALLIED SYSTEMS, LTD. (L.P.), Case No. 11-[_ __.] ([_j) Alleged Debtor. ------·····--·--·-··-···-··--x AFFIDAVIT OF RICHARD EHRLICH ON BEHALF OF BLACK DIAMOND CLO 2005-1 LTD. PURSUANT TO FEDERAL RULE OF BANKRUPTCY PROCEDURE 1003STATE OF CONNECTICUT) ) ss:COUNTY OF FAIRFIELD ) Richard Ehrlich being duly sworn, deposes and states: 1. I make this affidavit on behalf of Black Diamond CLO 2005-1 Ltd. ("BlackDiamond"), a petitioning creditor in the above-captioned involuntary chapter 11 cases (the"Bankruptcy Cases") filed by Black Diamond and other petitioning creditors against (i) AlliedSystems Holdings, Inc., and (ii) Allied Systems, Ltd. (L.P.) (together, the "Debtors"). I am fullyfamiliar with the facts set forth herein either through my own personal knowledge or through areview of documents related to Black Diamonds claims against the Debtors. If called to testifyin connection with the Bankruptcy Cases, the following would constitute my testimony.
  2. 2. 2. I am a Managing Director of Black Diamond Capital Management, L.L.C., whichthrough its affiliated entities is the investment manager for Black Diamond. Black Diamond hasits principal place of business at 1 Sound Shore Drive, Suite 200, Greenwich, Connecticut 06830.Black Diamond is a creditor of the Debtors based upon its status as a lender under that certainAmended and Restated First Lien Secured Super-Priority Debtor in Possession and Exit Creditand Guaranty Agreement dated as of March 30, 2007 by and among Allied Holdings, Inc. andAllied Systems, Ltd. (L.P.), as borrowers, certain subsidiaries of borrowers, as subsidiaryguarantors, various lenders, Goldman Sachs Credit Partners L.P., as lead arranger andsyndication agent, and The CIT Group/Business Credit, Inc., as administrative and collateralagent (as amended, restated, modified, or supplemented from time to time, the "First Lien CreditAgreement"). The First Lien Credit Agreement 3. Pursuant to the First Lien Credit Agreement, various lenders committed to extendterm loans, revolving loans, and synthetic letters of credit to the Debtors in the amount of$315 million. Due to the accrual of interest and fees, the current outstanding aggregate amountof the Obligations (as defined in the First Lien Credit Agreement) is approximately $296.4million. A copy of the First Lien Credit Agreement will be annexed to a declaration in supportof a statement contemporaneously filed by the petitioning creditors. 4. Pursuant to the First Lien Credit Agreement, the lenders commitments underterm loans, revolving loans, and synthetic letters of credit were evidenced by promissory notes.The claims of Black Diamond and other petitioning creditors derive from these notes. 5. The Obligations are secured by first priority liens in substantially all of theDebtors assets, including, but not limited to accounts, chattel paper, general intangibles, goods, 2
  3. 3. instruments, insurance, intellectual property, investment related property, letter of credit rights,money, receivables, and commercial tort claims. The Obligations are guaranteed by affiliates ofthe Debtors. The Assignments 6. By virtue of the execution of an assignment and assumption agreement, BlackDiamond received an unconditional transfer and assignment of certain amounts of loans owed bythe Debtors under the First Lien Credit Agreement (the "Assigned Claims"). Redacted copies ofthe assignment documentation are attached as Exhibit A. 7. The Assigned Claims were not assigned to Black Diamond for the purposes ofcommencing the Bankruptcy Cases. 8. As of the date hereof, Black Diamond holds Obligations in the aggregate principalamount of at least $4.5 million, together with all accrued and unpaid interest (including defaultinterest), fees and expenses calculated in accordance with the Credit Agreement.Dated: May //~ 2012 Greenwich, ConnecticutSworn t51 and subscribed before meThis // "dayofMay, 2012 711~~ Notary Public r--~~ . 11· r a --- "l Subscrl~d and swam to before me Ulls7rz=-.~ I Notary Public Oalil CommissiOO EJpiiOS: I I 6 I lf l 6 1 y I 1~~~---..---·____.__._.,., 3
  4. 4. EXHIBIT A
  5. 5. ASSIGNMENT AND ASSUMPTION AGREEMENT This Assignment and ent") is dated as of the Effective Date set forth below andis entered into by and (the "Assignor") and Black Diamond CLO 2005-1LTO. (the "Assignee"). Capitalized terms used but not defined herein shall have the meanings given to them in theAmended and Restated First Lien Senior Secured Super-Priority Debtor-in-Possession and Exit Credit and GuarantyAgreement identified below (as it may be amended, supplemented or otherwise modified from time to time, the "CreditAgreement"), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditionsset forth in Annex I attached hereto are hereby agreed to and incorporated herein by reference and made a part of thisAssignment as if set forth herein in full. For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assigneehereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms andConditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplatedbelow, the interest in and to all of the Assignors rights and obligations under the Credit Agreement and any otherdocuments or instruments delivered pursuant thereto that represents the amount and percentage interest identified below ofall of the Assignors outstanding rights and obligations under the respective facilities identified below (including, to the extentincluded in any such facilities, letters of credit, LC Deposits and swingline loans) (the "Assigned Interest"). Such sale andassignment is without recourse to the Assignor and, except as expressly provided in this Assignment and the CreditAgreement, without representation or warranty by the Assignor.1. Assignor:2. Assignee: Black Diamond CLO 2005- I LTD.3. Borrower(s): Allied Holdings, Inc., Allied Systems, LTD (L.P.)4. Administrative Agent: The CIT Group I Business Credit, Inc., as the administrative agent under the Credit Agreement5. Credit Agreement: The $265,000,000.00 Credit Agreement dated as of May 15, 2007 among Allied Holdings, Inc. ("Holdings"), Allied Systems, Ltd. (L.P.) ("Systems"), certain Subsidiaries of Holdings and Systems, as Guarantors, the Lenders parties thereto, Goldman Sachs Credit Partners L.P., as Administrative Agent, The CIT Group/Business Credit, Inc., as Administrative Agent and Collateral Agent and the other agents parties thereto 347264-001
  6. 6. 6. Assigned Interest: Aggregate Amount of Amount of Percentage Assigned of Commitment/Loans/LC Commitment/Loans/LC Comm itment/Loans/LC -loFacility Assigned Deposits for all Lenders Deposits Assigned Deposits Synthetic LC USD USD-CommitmentTerm Loan USD Effective Date: - 7. Notice and Wire Instructions:Notices: Notices: Black Diamond CLO 2005- I LTD. Fax: Contact: Black Diamond Closers Email: Wire Instructions: Wire Instructions: Currency: USD Currency: USD Bank: U.S. Bank ABA#: Account#: Account Name: Corporate Trust Structured Finance FFC: Black Diamond CLO 2005- I - Acct: 1076027384 Attn: Reference: Allied Holdings 1st Lien (5/07) 347264-001 2
  7. 7. The terms set forth in this Assignment are hereby agreed to: ASSIGNOR Assignor By: Name: Title: ASSIGNEE BLACK DIAMOND CLO 2005-1 LTD., as Assignee By: Black Diamond CLO 2005-1 Adviser L.L.C., as lts Collateral Manager 347264. 001
  8. 8. The terms set forth in this Assignment are hereby agreed to: ASSIGNOR Title: Closer/Agent ASSIGNEE BLACK DIAMOND CLO 2005-1 LTD., as Assignee By: Black Diamond CLO 2005-1 Adviser L.L.C., as Its Collateral Manager By: Name: Title: 347264.001 3
  9. 9. Consented to and Accepted:THE CIT GROUP I BUSINESS CREDIT, INC., as AdministrativeAgentBy:Name; -::.). ~tJo~Title: ff>Consented to:ALLIED HOLDINGS, INC.By:Name:Title:ALLIED SYSTEMS, LTD (L.P.)By:Name:Title: 347264-001 4
  10. 10. ANNEX 1 STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION AGREEMENT 1. Representations and Warranties. 1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the AssignedInterest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full powerand authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate thetransactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements (as defined herein),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 deliveredpursuant thereto, other than this Assignment (herein collectively the "Credit Documents"), or any collateral thereunder, (iii)the financial condition ofthe Company, any of its Subsidiaries or Affiliates or any other Person obligated in respect of anyCredit Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any otherPerson of any of their respective obligations under any Credit Document. 1.2 Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken allaction necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and tobecome a Lender under the Credit Agreement, (ii) it meets all requirements of an Eligible Assignee under the CreditAgreement, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement and, to theextent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the CreditAgreement and such other documents and information as it has deemed appropriate to make its own credit analysis anddecision to enter into this Assignment and to purchase the Assigned Interest on the basis of which it has made such analysisand decision, and (v) if it is a Non US Lender, attached to the Assignment is any documentation required to be deliveredby it pursuant to the terms ofthe Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) itwill, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on suchdocuments and information as it shall deem appropriate at that time, continue to make its own credit decisions in taking ornot taking action under the Credit Documents, and (ii) it will perform in accordance with their terms all of the obligationswhich by the terms of the Credit Documents are required to be performed by it as a Lender. 2. Payments. All payments with respect to the Assigned Interests shall be made on the Effective Date as follows: 2.1 With respect to Assigned Interests for Term Loans, unless notice to the contrary is delivered to the Lender from theAdministrative Agent, payment to the Assignor by the Assignee in respect of the Assigned Interest shall include suchcompensation to the Assignor as may be agreed upon by the Assignor and the Assignee with respect to all unpaid interestwhich has accrued on the Assigned Interest to but excluding the Effective Date. On and after the applicable Effective Date,the Assignee shall be entitled to receive all interest paid or payable with respect to the Assigned Interest, whether suchinterest accrued before or after the Effective Date. 2.2 With respect to Assigned Interests for Revolving Loans and LC Commitments and LC Deposits, from andafter the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (includingpayments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excludingthe Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date. 3. General Provisions. This Assignment shall be binding upon, and inure to the benefit of, the parties hereto and theirrespective successors and assigns. This Assignment may be executed in any number of counterparts, which together shall 347264-001 5
  11. 11. constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment by telecopy shall beeffective as delivery of a manually executed counterpart ofthis Assignment. This Assignment shall be governed by, andconstrued in accordance with, the internal laws of the State of New York without regard to conflict of laws principlesthereof. 347264-001 6