EXHIBIT 10.51
--------------------------------------------------
WABASH NATIONAL CORPORATION
AND
THE SUBSIDIARIES OF WABASH NATIONAL CORPORATION
IDENTIFIED ON THE SIGNATURE PAGES HERETO,
AS BORROWERS
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
LOAN AND SECURITY AGREEMENT
Dated: September 23, 2003
$222,100,000
--------------------------------------------------
--------------------------------------------------
--------------------------------------------------
FLEET CAPITAL CORPORATION,
INDIVIDUALLY AND AS AGENT FOR ANY LENDER WHICH IS
OR BECOMES A PARTY HERETO,
NATIONAL CITY COMMERCIAL FINANCE, INC.,
INDIVIDUALLY AND AS SYNDICATION AGENT,
GENERAL ELECTRIC CAPITAL CORPORATION,
INDIVIDUALLY AND AS A DOCUMENTATION AGENT,
WACHOVIA BANK, NATIONAL ASSOCIATION,
INDIVIDUALLY AND AS A DOCUMENTATION AGENT,
FLEET SECURITIES, INC.,
AS ARRANGER, AND
THE ADDITIONAL LENDERS NOW AND FROM
TIME TO TIME PARTY HERETO
TABLE OF CONTENTS
Page
----
SECTION 1. CREDIT FACILITY................................................................... 1
1.1. Loans............................................................................ 1
1.2. Letters of Credit; LC Guaranties................................................. 4
1.3. Term Loan........................................................................ 5
1.4. Borrowing Agent.................................................................. 6
1.5. Alternate Currencies............................................................. 6
1.6. Dollars; Conversion to Dollars................................................... 6
1.7. Judgment Currency; Contractual Currency.......................................... 7
1.8. Common Enterprise................................................................ 8
SECTION 2. INTEREST, FEES AND CHARGES........................................................ 8
2.1. Interest......................................................................... 8
2.2. Computation of Interest and Fees................................................. 9
2.3. Fee Letter....................................................................... 9
2.4. Letter of Credit and LC Guaranty Fees............................................ 9
2.5. Unused Line Fee.................................................................. 10
2.6. Intentionally omitted............................................................ 10
2.7. Audit Fees....................................................................... 11
2.8. Reimbursement of Expenses........................................................ 11
2.9. Bank Charges..................................................................... 12
2.10. Collateral Protection Expenses; Appraisals....................................... 12
2.11. Payment of Charges............................................................... 12
2.12. No Deductions.................................................................... 13
2.13. Joint and Several Obligations.................................................... 13
2.14. Subrogation and Contribution..................................................... 16
SECTION 3. LOAN ADMINISTRATION............................................................... 16
3.1. Manner of Borrowing Revolving Credit Loans/LIBOR Option.......................... 16
3.2. Payments......................................................................... 20
3.3. Mandatory and Optional Prepayments............................................... 21
3.4. Application of Payments and Collections.......................................... 25
3.5. All Loans to Constitute One Obligation........................................... 26
3.6. Loan Account..................................................................... 26
3.7. Statements of Account............................................................ 27
3.8. Increased Costs.................................................................. 27
3.9. Basis for Determining Interest Rate Inadequate................................... 28
3.10. Sharing of Payments, Etc......................................................... 29
SECTION 4. TERM AND TERMINATION.............................................................. 29
4.1. Term of Agreement................................................................ 29
-i-
4.2. Termination...................................................................... 29
SECTION 5. SECURITY INTERESTS................................................................ 30
5.1. Security Interest in Collateral.................................................. 30
5.2. Other Collateral................................................................. 32
5.3. Lien Perfection; Further Assurances.............................................. 33
5.4. Lien on Realty................................................................... 33
SECTION 6. COLLATERAL ADMINISTRATION......................................................... 34
6.1. General.......................................................................... 34
6.2. Administration of Accounts....................................................... 35
6.3. Administration of Inventory...................................................... 37
6.4. Administration of Equipment...................................................... 38
6.5. Payment of Charges............................................................... 38
SECTION 7. REPRESENTATIONS AND WARRANTIES.................................................... 38
7.1. General Representations and Warranties........................................... 38
7.2. Continuous Nature of Representations and Warranties.............................. 47
7.3. Survival of Representations and Warranties....................................... 47
SECTION 8. COVENANTS AND CONTINUING AGREEMENTS............................................ 47
8.1. Affirmative Covenants............................................................ 47
8.2. Negative Covenants............................................................... 53
8.3. Specific Financial Covenants..................................................... 61
SECTION 9. CONDITIONS PRECEDENT.............................................................. 61
9.1. Conditions Precedent to Initial Loans and Other Initial Credit Accommodations.... 61
9.2. Conditions Precedent to all Loans and other Credit Accommodations................ 62
SECTION 10. EVENTS OF DEFAULT; RIGHTS AND REMEDIES ON DEFAULT................................ 63
10.1. Events of Default................................................................ 63
10.2. Acceleration of the Obligations.................................................. 66
10.3. Other Remedies................................................................... 66
10.4. Set Off and Sharing of Payments.................................................. 68
10.5. Remedies Cumulative; No Waiver................................................... 68
SECTION 11. THE AGENT........................................................................ 69
11.1. Authorization and Action......................................................... 69
11.2. Agent's Reliance, Etc............................................................ 69
11.3. Fleet and Affiliates............................................................. 70
11.4. Lender Credit Decision........................................................... 70
11.5. Indemnification.................................................................. 71
11.6. Rights and Remedies to be Exercised by Agent Only................................ 71
-ii-
11.7. Agency Provisions Relating to Collateral......................................... 71
11.8. Agent's Right to Purchase Commitments............................................ 72
11.9. Right of Sale, Assignment, Participations........................................ 72
11.10. Amendment........................................................................ 74
11.11. Resignation of Agent; Appointment of Successor................................... 75
11.12. Audit and Examination Reports; Disclaimer by Lenders............................. 76
11.13. Syndication Agent; Documentation Agents.......................................... 77
11.14. Quebec Security.................................................................. 77
SECTION 12. MISCELLANEOUS.................................................................... 78
12.1. Power of Attorney................................................................ 78
12.2. Indemnity........................................................................ 79
12.3. Sale of Interest................................................................. 80
12.4. Severability..................................................................... 80
12.5. Successors and Assigns........................................................... 80
12.6. Cumulative Effect; Conflict of Terms............................................. 80
12.7. Execution in Counterparts........................................................ 80
12.8. Notice........................................................................... 80
12.9. Consent.......................................................................... 81
12.10. Credit Inquiries................................................................. 82
12.11. Time of Essence.................................................................. 82
12.12. Entire Agreement................................................................. 82
12.13. Interpretation................................................................... 82
12.14. Confidentiality.................................................................. 82
12.15. GOVERNING LAW; CONSENT TO FORUM.................................................. 83
12.16. WAIVERS BY BORROWERS............................................................. 84
12.17. Advertisement.................................................................... 84
12.18. English Language................................................................. 85
-iii-
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT is made as of this 23rd day
of September, 2003, by and among FLEET CAPITAL CORPORATION ("Fleet"), a Rhode
Island corporation with an office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, individually as a Lender, as Agent ("Agent") for itself
and any other financial institution which is or becomes a party hereto (each
such financial institution, including Fleet, is referred to hereinafter
individually as a "Lender" and collectively as the "Lenders"), the LENDERS,
NATIONAL CITY COMMERCIAL FINANCE, INC., individually as a Lender and as
Syndication Agent for Lenders, GENERAL ELECTRIC CAPITAL CORPORATION,
individually as a Lender and as a Documentation Agent for Lenders, WACHOVIA
BANK, NATIONAL ASSOCIATION, individually as a Lender and as a Documentation
Agent for Lenders, FLEET SECURITIES, INC., as arranger ("Arranger"), and each of
WABASH NATIONAL CORPORATION, a Delaware corporation with its chief executive
office and principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Wabash") and EACH SUBSIDIARY OF WABASH THAT IS
IDENTIFIED ON THE SIGNATURE PAGES HERETO AS A BORROWER; Wabash and each such
Subsidiary are hereafter referred to collectively, as "Borrowers" and
individually, as "Borrower". Capitalized terms used in this Agreement have the
meanings assigned to them in Appendix A, General Definitions. Accounting terms
not otherwise specifically defined herein shall be construed in accordance with
GAAP consistently applied.
SECTION 1. CREDIT FACILITY
Subject to the terms and conditions of, and in reliance upon
the representations and warranties made in, this Agreement and the other Loan
Documents, Lenders agree to make a Total Credit Facility of up to $222,100,000
available to Borrowers upon a Borrower's request therefor, as follows:
1.1. Loans.
1.1.1. Revolving Credit Loans. Each Lender agrees, severally
and not jointly, for so long as no Default or Event of Default exists,
to make Revolving Credit Loans to Borrowers from time to time during
the period from the date hereof to but not including the last day of
the Term, as requested by Borrowers in the manner set forth in Section
1.4 and subsection 3.1.1 hereof, up to a maximum principal amount at
any time outstanding equal to the lesser of (i) such Lender's Revolving
Loan Commitment minus the product of such Lender's Revolving Loan
Percentage and the sum of the Dollar Equivalent of the LC Amount and LC
Obligations minus the product of such Lender's Revolving Loan
Percentage and reserves, if any and (ii) the product of (a) such
Lender's Revolving Loan Percentage and (b) an amount equal to the sum
of the Borrowing Base at such time minus the sum of the Dollar
Equivalent of the LC Amount and LC Obligations minus reserves, if any.
Agent shall have the right to establish reserves in such amounts, and
with respect to such matters as Agent shall deem necessary or
appropriate in its reasonable credit judgment, against the
-1-
amount of Revolving Credit Loans which Borrowers may otherwise request
under this subsection 1.1.1 including without limitation with respect
to (i) price adjustments, damages, unearned discounts, returned
products or other matters for which credit memoranda are issued in the
ordinary course of a Borrower's business; (ii) potential dilution
related to Accounts; (iii) shrinkage, spoilage and obsolescence of
Inventory; (iv) slow moving Inventory; (v) other sums chargeable
against a Borrower's Loan Account as Revolving Credit Loans under any
section of this Agreement; (vi) amounts owing by a Borrower to any
Person to the extent secured by a Lien on, or trust over, any Property
of such Borrower, including without limitation Prior Claims; (vii)
amounts owing by a Borrower in connection with Product Obligations and
relating to currency exchange rate risk; (viii) the Rebuild Reserve and
(ix) such other specific events, conditions or contingencies as to
which Agent, in its reasonable credit judgment as is customary for
asset based facilities of this type, determines reserves should be
established from time to time hereunder. The reserves in place as of
the Closing Date shall be equal to $92,500 in the aggregate.
Notwithstanding the foregoing, Agent shall not establish any reserves
in respect of any matters relating to any items of Collateral that have
been taken into account in determining Eligible Inventory, Eligible
Trailer Inventory, Eligible ▇▇▇▇ and Hold Inventory or Eligible
Accounts, as applicable. The Revolving Credit Loans shall be repayable
in accordance with the terms of the Revolving Notes and as set forth in
subsection 3.2.1, and shall be secured by, among other things, all of
the Collateral.
1.1.2. Overadvances. Insofar as a Borrower may request and
Agent or Majority Lenders (as provided below) may be willing in their
sole and absolute discretion to make Revolving Credit Loans to such
Borrower at a time when the unpaid balance of Revolving Credit Loans
plus the sum of the Dollar Equivalent of the LC Amount plus the Dollar
Equivalent of the amount of LC Obligations that have not been
reimbursed by Borrowers or funded with a Revolving Credit Loan, plus
reserves, exceeds, or would exceed with the making of any such
Revolving Credit Loan, the Borrowing Base (such Loan or Loans being
herein referred to individually as an "Overadvance" and collectively,
as "Overadvances"), Agent shall enter such Overadvances as debits in
the Loan Account. All Overadvances shall be repaid on demand, shall be
secured by the Collateral and shall bear interest as provided in this
Agreement for Revolving Credit Loans generally. Any Overadvance made
pursuant to the terms hereof shall be made by all Lenders ratably in
accordance with their respective Revolving Loan Percentages.
Overadvances in the aggregate amount of $5,000,000 or less may, unless
a Default or Event of Default has occurred and is continuing (other
than a Default or an Event of Default caused by the existence or making
of such Overadvance), be made in the sole and absolute discretion of
Agent. Overadvances in an aggregate amount of more than $5,000,000 but
less than $7,500,000 may, unless a Default or an Event of Default has
occurred and is continuing (other than a Default or Event of Default
caused by the existence or making of such Overadvance), be made in the
sole and absolute discretion of the Majority Lenders. Overadvances in
an aggregate amount of $7,500,000 or more and Overadvances to be made
after the occurrence and during the continuation of a
-2-
Default or an Event of Default (other than a Default or Event of
Default caused by the existence or making of such Overadvance) shall
require the consent of all Lenders. The foregoing notwithstanding, in
no event, unless otherwise consented to by all Lenders, (w) shall any
Overadvances be outstanding for more than thirty (30) consecutive days,
(x) after all outstanding Overadvances have been repaid, shall Agent or
Lenders make any additional Overadvances unless sixty (60) days or more
have expired since the last date on which any Overadvances were
outstanding, (y) shall Overadvances be outstanding for more than sixty
(60) days within any one hundred eighty day (180) period or (z) shall
Agent make Revolving Credit Loans on behalf of Lenders under this
subsection 1.1.2 to the extent such Revolving Credit Loans would cause
a Lender's share of the Revolving Credit Loans to exceed such Lender's
Revolving Loan Commitment minus such Lender's Revolving Loan Percentage
of the sum of the Dollar Equivalent of the LC Amount and the LC
Obligations.
1.1.3. Use of Proceeds. The Revolving Credit Loans shall be
used solely for (i) the satisfaction of existing Indebtedness of
Borrowers, (ii) the payment of fees and expenses associated with the
transactions contemplated hereby, (iii) Borrowers' general operating
capital needs (including Capital Expenditures permitted hereunder) in a
manner consistent with the provisions of this Agreement and all
applicable laws, (iv) the funding of Permitted Acquisitions and (v)
other purposes permitted under this Agreement.
1.1.4. Swingline Loans. In order to reduce the frequency of
transfers of funds from Lenders to Agent for making Revolving Credit
Loans and for so long as no Default or Event of Default exists, Agent
shall be permitted (but not required) to make Revolving Credit Loans to
Borrowers upon request by Borrowers (such Revolving Credit Loans to be
designated as "Swingline Loans") provided that the aggregate amount of
Swingline Loans outstanding at any time will not (i) exceed
$10,000,000; (ii) when added to the principal amount of Agent's other
Revolving Credit Loans then outstanding plus Agent's Revolving Loan
Percentage of the sum of the Dollar Equivalent of the LC Amount and the
LC Obligations, exceed Agent's Revolving Credit Commitment; or (iii)
when added to the principal amount of all other Revolving Credit Loans
then outstanding plus the sum of the Dollar Equivalent of the LC Amount
and the LC Obligations plus reserves, exceed the Borrowing Base. Within
the foregoing limits, each Borrower may borrow, repay and reborrow
Swingline Loans. All Swingline Loans shall be treated as Revolving
Credit Loans for purposes of this Agreement, except that (a) all
Swingline Loans shall be Base Rate Revolving Portions and (b)
notwithstanding anything herein to the contrary (other than as set
forth in the next succeeding sentence), all principal and interest paid
with respect to Swingline Loans shall be for the sole account of Agent
in its capacity as the lender of Swingline Loans. Notwithstanding the
foregoing, not more than 2 Business Days after (1) Lenders receive
notice from Agent that a Swingline Loan has been advanced in respect of
a drawing under a Letter of Credit or LC Guaranty or (2) in any other
circumstance, demand is made by Agent during the continuance of an
Event
-3-
of Default, each Lender shall irrevocably and unconditionally purchase
and receive from Agent, without recourse or warranty from Agent, an
undivided interest and participation in each Swingline Loan to the
extent of such Lender's Revolving Loan Percentage thereof, by paying to
Agent, in same day funds, an amount equal to such Lender's Revolving
Loan Percentage of such Swingline Loan. Swingline Loans will be settled
between the Agent and the Lenders in the manner set forth in subsection
3.1.3.
1.1.5. Agent Loans. Upon the occurrence and during the
continuance of an Event of Default, Agent, in its sole discretion, may
make Revolving Credit Loans on behalf of Lenders, in an aggregate
amount not to exceed $5,000,000, if Agent, in its reasonable business
judgment, deems that such Revolving Credit Loans are necessary or
desirable (i) to protect all or any portion of the Collateral, (ii) to
enhance the likelihood, or maximize the amount of, repayment of the
Loans and the other Obligations, or (iii) to pay any other amount
chargeable to any Borrower pursuant to this Agreement, including
without limitation costs, fees and expenses as described in Sections
2.8 and 2.9 (hereinafter, "Agent Loans"); provided, that in no event
shall (a) the maximum principal amount of the Revolving Credit Loans
exceed the aggregate Revolving Loan Commitments and (b) Majority
Lenders may at any time revoke Agent's authorization to make Agent
Loans. Any such revocation must be in writing and shall become
effective prospectively upon Agent's receipt thereof. Each Lender shall
be obligated to advance its Revolving Loan Percentage of each Agent
Loan. If Agent Loans are made pursuant to the preceding sentence, then
(a) the Borrowing Base shall be deemed increased by the amount of such
permitted Agent Loans, but only for so long as Agent allows such Agent
Loans to be outstanding, and (b) all Lenders that have committed to
make Revolving Credit Loans shall be bound to make, or permit to remain
outstanding, such Agent Loans based upon their Revolving Loan
Percentages in accordance with the terms of this Agreement.
1.2. Letters of Credit; LC Guaranties.
1.2.1. Issuance of Letters of Credit and LC Guarantees.
Agent agrees, for so long as no Default or Event of Default exists and
if requested by a Borrower, to (i) issue its, or cause to be issued by
Bank or another Affiliate of Agent, on the date requested by such
Borrower, Letters of Credit (sight drafts only) for the account of a
Borrower or (ii) execute LC Guaranties by which Agent, Bank, or another
Affiliate of Agent, on the date requested by a Borrower, shall guaranty
the payment or performance by a Borrower of its reimbursement
obligations with respect to letters of credit issued for a Borrower's
account by other Persons; provided that (a) the Dollar Equivalent of
the LC Amount shall not exceed $15,000,000 at any time and (b) at no
time will a Letter of Credit or LC Guaranty be issued if doing so could
cause a violation of subsection 1.1.1. No Letter of Credit or LC
Guaranty may have an expiration date (a) after the last day of the
Term, (b) in the case of standby Letters of Credit or LC Guaranties
supporting standby letters of credit, more than 1 year after the
issuance date thereof or (c) in the case of documentary Letters of
Credit or LC
-4-
Guaranties supporting documentary letters of credit, more than 180 days
after the issuance date hereof.
1.2.2. Lender Participation. Immediately upon the issuance
of a Letter of Credit or an LC Guaranty under this Agreement, each
Lender shall be deemed to have irrevocably and unconditionally
purchased and received from Agent, without recourse or warranty, an
undivided interest and participation therein equal to the sum of the
Dollar Equivalent of the applicable LC Amount and the applicable LC
Obligations multiplied by such Lender's Revolving Loan Percentage.
Agent will notify each Lender on a weekly basis, or if determined by
Agent, a more frequent basis, upon presentation to it of a draw under a
Letter of Credit or a demand for payment under a LC Guaranty. On a
weekly basis, or more frequently if requested by Agent, each Lender
shall make payment to Agent in immediately available funds in Dollars,
of an amount equal to such Lender's pro rata share (based on such
Lender's Revolving Loan Percentage) of the amount of any payment made
by Agent in respect to any Letter of Credit or LC Guaranty. The
obligation of each Lender to reimburse Agent under this subsection
1.2.2 shall be unconditional, continuing, irrevocable and absolute,
except in respect of indemnity claims arising out of Agent's willful
misconduct or gross negligence. In the event that any Lender fails to
make payment to Agent of any amount due under this subsection 1.2.2,
Agent shall be entitled to receive, retain and apply against such
obligation the principal and interest otherwise payable to such Lender
hereunder until Agent receives such payment from such Lender or such
obligation is otherwise fully satisfied; provided, however, that
nothing contained in this sentence shall relieve such Lender of its
obligation to reimburse the Agent for such amount in accordance with
this subsection 1.2.2.
1.2.3. Reimbursement. Notwithstanding anything to the
contrary contained herein, Borrowers, Agent and Lenders hereby agree
that all LC Obligations and all obligations of each Borrower relating
thereto shall be satisfied by the prompt issuance of one or more
Revolving Credit Loans in Dollars that are Base Rate Revolving
Portions, which Borrowers hereby acknowledge are requested and Lenders
hereby agree to fund. In the event that Revolving Credit Loans are not,
for any reason, promptly made to satisfy all then existing LC
Obligations, each Lender hereby agrees to pay to Agent, on demand, an
amount equal to the Dollar Equivalent of such LC Obligations multiplied
by such Lender's Revolving Loan Percentage, and until so paid, such
amount shall be secured by the Collateral and shall bear interest and
be payable at the same rate and in the same manner as Base Rate
Revolving Portions. In no event shall Agent or any Lender make any
Revolving Credit Loan in respect of any Obligation that has already
been satisfied by any Borrower.
1.3. Term Loan.
Each Lender, severally and not jointly, agrees to make a term
loan (collectively, the "Term Loan") to Borrowers on the Closing Date, in the
aggregate principal amount of such Lender's Term Loan Commitment, which shall be
repayable in accordance with the terms of the Term Notes and as set forth in
subsection 3.2.1, and shall be secured by, among other things, all
-5-
of the Collateral. The proceeds of the Term Loan shall be used solely for the
purposes for which the proceeds of the Revolving Credit Loans are authorized to
be used. The aggregate amount of the Term Loan Commitments on the Closing Date
shall be equal to $47,100,000.
1.4. Borrowing Agent.
For ease of administration of this Agreement, each Borrower
other than Wabash hereby appoints Wabash as its borrowing agent hereunder. In
such capacity, Wabash will request all Revolving Credit Loans to be made
pursuant to Section 1.1, will request all Letters of Credit and LC Guaranties to
be issued pursuant to Section 1.2 and will submit all LIBOR Requests with
respect to obtaining any LIBOR Portion pursuant to subsection 3.1.7, converting
any Base Rate Portion into a LIBOR Portion pursuant to subsection 3.1.8 or
continuing any LIBOR Portion into a subsequent Interest Period pursuant to
subsection 3.1.9, in each case pursuant to the procedures set forth in Section
3.1. Notwithstanding anything to the contrary contained in this Agreement, no
Borrower other than Wabash shall be entitled to directly request any Revolving
Credit Loans, Letters of Credit or LC Guaranties or to submit any LIBOR Requests
hereunder and such requests shall be directed through Wabash, as borrowing agent
hereunder, for any requesting Borrower. The proceeds of all Revolving Credit
Loans made hereunder shall be advanced to or at the direction of Wabash and used
solely for the purposes described in subsection 1.1.3.
1.5. Alternate Currencies.
After the Closing Date, Borrowers may request that Letters of
Credit and/or LC Guaranties be issued in any lawful currency other than Dollars
that is at such time freely traded in the offshore interbank foreign exchange
and foreign deposit market in which Bank customarily funds loans in currencies
other than Dollars, by means of a written request received by Agent at least 7
Business Days prior to the issuance date for the Letter of Credit or LC
Guaranty. Agent may accept or reject such request in the exercise of its sole
discretion and shall promptly inform Borrowers thereof. If Agent accepts any
such request, the currency designated shall be referred to as an "Agreed
Alternate Currency". Notwithstanding the foregoing, any otherwise Agreed
Alternate Currency shall automatically cease being an Agreed Alternate Currency
at such time that, in Agent's determination, such currency could not reasonably
be converted by Agent into Dollars within 3 Business Days. Upon any draw upon a
Letter of Credit or LC Guaranty, the amount of such draw shall be immediately
converted into Dollars in the manner provided in Section 1.6. All reserves
against Availability relating to the LC Amount or LC Obligations shall be
adjusted at a frequency determined by Agent (but no less frequently than
monthly) on the basis of a ▇▇▇▇-to-market conversion completed in the manner set
forth in Section 1.6.
1.6. Dollars; Conversion to Dollars.
Unless otherwise specifically set forth in this Agreement, all
monetary amounts shall be in Dollars. All valuations or computations of monetary
amounts set forth in this Agreement shall include the Dollar Equivalent of
amounts designated in Canadian Dollars or any Agreed Alternate Currency. In
connection with all Dollar amounts set forth in this
-6-
Agreement, all Canadian Dollars or amounts in any Agreed Alternate Currency
shall be converted to Dollars in accordance with prevailing exchange rates, as
determined by Agent in its sole discretion, on the applicable date.
1.7. Judgment Currency; Contractual Currency.
(i) If, for the purpose of obtaining or
enforcing judgment against any Borrower or Guarantor or any
other party to this Agreement in any court in any
jurisdiction, it becomes necessary to convert into any other
currency (such other currency being hereinafter in this
Section 1.7 referred to as the "Judgment Currency") an amount
due under any Loan Document in any currency (the "Obligation
Currency") other than the Judgment Currency, the conversion
shall be made at the rate of exchange prevailing on the
Business Day immediately preceding (a) the date of actual
payment of the amount due, in the case of any proceeding in
the courts of any jurisdiction that will give effect to such
conversion being made on such date, or (b) the date on which
the judgment is given, in the case of any proceeding in the
courts of any other jurisdiction (the applicable date as of
which such conversion is made pursuant to this Section 1.7
being hereinafter in this Section 1.7 referred to as the
"Judgment Conversion Date").
(ii) If, in the case of any proceeding in the
court of any jurisdiction referred to in subsection 1.7(i),
there is a change in the rate of exchange prevailing between
the Judgment Conversion Date and the date of actual receipt
for value of the amount due, the applicable Borrower or
Guarantor shall pay such additional amount (if any, but in any
event not a lesser amount) as may be necessary to ensure that
the amount actually received in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of
payment, will produce the amount of the Obligation Currency
which could have been purchased with the amount of the
Judgment Currency stipulated in the judgment or judicial order
at the rate of exchange prevailing on the Judgment Conversion
Date. Any amount due from a Borrower or Guarantor under this
subsection 1.7(ii) shall be due as a separate debt and shall
not be affected by judgment being obtained for any other
amounts due under or in respect of any of the Documents.
(iii) The term "rate of exchange" in this Section
1.7 means the rate of exchange at which Agent would, on the
relevant date at or about 12:00 noon (Chicago time), be
prepared to sell the Obligation Currency against the Judgment
Currency.
(iv) Any amount received or recovered by Agent in
respect of any sum expressed to be due to it (whether for
itself or as trustee for any other person) from any Borrower
or Guarantor of any other party under this Agreement or under
any of the other Loan Documents in a currency other than the
currency (the "contractual currency") in which such sum is so
expressed to
-7-
be due (whether as a result of or from the enforcement of, any
judgment or order of a court or tribunal of any jurisdiction,
the winding-up of a Borrower or Guarantor or otherwise) shall
only constitute a discharge of such Borrower or Guarantor to
the extent of the amount of the contractual currency that
Agent is able, in accordance with its usual practice, to
purchase with the amount of the currency so received or
recovered on the date of receipt or recovery (or, if later,
the first date on which such purchase is practicable). If the
amount of the contractual currency so purchased is less than
the amount of the contractual currency so expressed to be due,
such Borrower or Guarantor shall indemnify Agent against any
loss sustained by it as a result, including the cost of making
any such purchase.
1.8. Common Enterprise.
Wabash is the direct or indirect and beneficial owner and
holder of all of the issued and outstanding shares of stock or other equity
interests in each other Borrower and Subsidiary Guarantor. Borrowers and
Subsidiary Guarantors make up a related organization of various entities
constituting a single economic and business enterprise so that Borrowers and
Subsidiary Guarantors share a substantial identity of interests such that any
benefit received by any one of them benefits the others. Borrowers and certain
of the Subsidiary Guarantors render services to or for the benefit of Borrowers
and/or the other Subsidiary Guarantors, as the case may be, purchase or sell and
supply goods to or from or for the benefit of the others, make loans, advances
and provide other financial accommodations to or for the benefit of Borrowers
and Subsidiary Guarantors (including inter alia, the payment by Borrowers and
Subsidiary Guarantors of creditors of the Borrowers or Subsidiary Guarantors and
guarantees by Borrowers and Subsidiary Guarantors of indebtedness of Borrowers
and Subsidiary Guarantors and provide administrative, marketing, payroll and
management services to or for the benefit of Borrowers and Subsidiary
Guarantors). Borrowers and Subsidiary Guarantors have centralized accounting,
common officers and directors and are in certain circumstances, identified to
creditors as a single economic and business enterprise.
SECTION 2. INTEREST, FEES AND CHARGES
2.1. Interest.
2.1.1. Rates of Interest. Interest shall accrue on the
principal amount of the Base Rate Revolving Portions and the Base Rate
Term Portions outstanding at the end of each day at a fluctuating rate
per annum equal to the Applicable Margin then in effect plus the Base
Rate. Said rate of interest shall increase or decrease by an amount
equal to any increase or decrease in the Base Rate, effective as of the
opening of business on the day that any such change in the Base Rate
occurs. If a Borrower exercises its LIBOR Option as provided in Section
3.1, interest shall accrue on the principal amount of the LIBOR
Revolving Portions and the LIBOR Term Portions outstanding at the end
of each day at a rate per annum equal to the Applicable Margin then in
effect plus the LIBOR applicable to each LIBOR Portion for the
corresponding Interest Period.
-8-
2.1.2. Default Rate of Interest. At the option of Agent or
the Majority Lenders, upon and after the occurrence of an Event of
Default and during the continuation thereof, the principal amount of
all Loans shall bear interest at a rate per annum equal to 2.0% plus
the interest rate otherwise applicable thereto (the "Default Rate").
2.1.3. Maximum Interest. In no event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under the Notes
and charged or collected pursuant to the terms of this Agreement or
pursuant to the Notes exceed the highest rate permissible under any law
which a court of competent jurisdiction shall, in a final
determination, deem applicable hereto. If any provisions of this
Agreement or the Notes are in contravention of any such law, such
provisions shall be deemed amended to conform thereto (the "Maximum
Rate"). If at any time, the amount of interest paid hereunder is
limited by the Maximum Rate, and the amount at which interest accrues
hereunder is subsequently below the Maximum Rate, the rate at which
interest accrues hereunder shall remain at the Maximum Rate, until such
time as the aggregate interest paid hereunder equals the amount of
interest that would have been paid had the Maximum Rate not applied.
2.2. Computation of Interest and Fees.
Interest, Letter of Credit and LC Guaranty fees and Unused
Line Fees hereunder shall be calculated daily and shall be computed on the
actual number of days elapsed over a year of 360 days.
2.3. Fee Letter.
Borrowers shall jointly and severally pay to Agent certain
fees and other amounts in accordance with the terms of the fee letter among
Borrowers and Agent (the "Fee Letter").
2.4. Letter of Credit and LC Guaranty Fees.
Borrowers shall jointly and severally pay to Agent:
(i) for standby Letters of Credit and LC
Guaranties of standby letters of credit, for the ratable
benefit of Lenders a per annum fee equal to the Applicable
Margin then in effect for LIBOR Revolving Portions of the
aggregate undrawn available amount of such Letters of Credit
and LC Guaranties outstanding from time to time during the
term of this Agreement, plus all normal and customary charges
associated with the issuance, processing and administration
thereof, which fees and charges shall be deemed fully earned
upon issuance (or as advised by Agent or Bank) of each such
Letter of Credit or LC Guaranty, shall be due and payable in
arrears on the first Business Day of each month (or as advised
by Agent or Bank) and shall not be subject to rebate or
proration upon the termination of this Agreement
-9-
for any reason; provided, that at any time that the Default
Rate is in effect, the fee applicable under this subsection
shall be equal to the otherwise applicable fee plus 2.00%;
(ii) for documentary Letters of Credit and LC
Guaranties of documentary letters of credit, for the ratable
benefit of Lenders a per annum fee equal to the Applicable
Margin then in effect for LIBOR Revolving Portions of the
aggregate undrawn available amount of such Letters of Credit
and LC Guaranties outstanding from time to time during the
term of this Agreement, plus all normal and customary charges
associated with the issuance, processing and administration of
each such Letter of Credit or LC Guaranty (which fees and
charges shall be fully earned upon issuance, renewal or
extension (as the case may be) of each such Letter of Credit
or LC Guaranty (or as advised by Agent or Bank), shall be due
and payable in arrears on the first Business Day of each month
(or as advised by Agent or Bank), and shall not be subject to
rebate or proration upon the termination of this Agreement for
any reason); provided, that at any time that the Default Rate
is in effect, the fee applicable under this subsection shall
be equal to the otherwise applicable fee plus 2.00%; and
(iii) with respect to all Letters of Credit and LC
Guaranties, for the account of Agent only, a per annum
fronting fee equal to 0.25% of the aggregate undrawn available
amount of such Letters of Credit and LC Guaranties outstanding
from time to time during the term of this Agreement, which
fronting fees shall be due and payable monthly in arrears on
the first Business Day of each month and shall not be subject
to rebate or proration upon the termination of this Agreement
for any reason.
2.5. Unused Line Fee.
Borrowers shall jointly and severally pay to Agent, for the
ratable benefit of Lenders and Agent (as lender of the Swingline Loans), a fee
(the "Unused Line Fee") equal to the Applicable Margin per annum for the Unused
Line Fee multiplied by the average daily amount by which the Revolving Credit
Maximum Amount exceeds the sum of (i) the outstanding principal balance of the
Revolving Credit Loans and the Swingline Loans plus (ii) the sum of the Dollar
Equivalent of the LC Amount and the LC Obligations; provided, that for purposes
of allocating the Unused Line Fee among Lenders (other than Agent), outstanding
Swingline Loans shall not be included as part of the outstanding balance of the
Loans for purposes of calculating such fees owed to Lenders other than Agent.
The Unused Line Fee shall be payable monthly in arrears on the first day of each
month hereafter.
2.6. Intentionally omitted.
-10-
2.7. Audit Fees.
Borrowers shall jointly and severally pay to Agent
commercially reasonable audit fees in accordance with Agent's current schedule
of fees in effect from time to time in connection with audits of the books and
records and Properties of each Borrower and its Subsidiaries and such other
matters as Agent shall deem appropriate in its reasonable credit judgment, plus
all reasonable out-of-pocket expenses incurred by Agent in connection with such
audits, whether such audits are conducted by employees of Agent or by third
parties hired by Agent. Such audit fees and out-of-pocket expenses shall be
payable on the first day of the month following the date of issuance by Agent of
a request for payment thereof to Wabash. Agent may, in its discretion, provide
for the payment of such amounts by making appropriate Revolving Credit Loans to
one or more Borrowers and charging the appropriate Loan Account or Loan Accounts
therefor. So long as no Event of Default is in existence, such audit fees shall
not exceed $75,000 in the aggregate in any calendar year.
2.8. Reimbursement of Expenses.
If, at any time or times regardless of whether or not an Event
of Default then exists, (i) Agent or Arranger incurs reasonable legal or
accounting expenses or any other costs or out-of-pocket expenses in connection
with (1) the negotiation and preparation of this Agreement or any of the other
Loan Documents, any amendment of or modification of this Agreement or any of the
other Loan Documents, or any syndication or attempted syndication of the
Obligations (including, without limitation, printing and distribution of
materials to prospective Lenders and all costs associated with bank meetings,
but excluding any closing fees paid to Lenders in connection therewith) or (2)
the administration of this Agreement or any of the other Loan Documents and the
transactions contemplated hereby and thereby; or (ii) Agent or any Lender incurs
reasonable legal or accounting expenses or any other costs or out-of-pocket
expenses in connection with (1) any litigation, contest, dispute, suit,
proceeding or action (whether instituted by Agent, any Lender, any Borrower or
any other Person) relating to the Collateral, this Agreement or any of the other
Loan Documents or any Borrower's, any Subsidiary's or any Guarantor's affairs;
(2) any amendment, modification, waiver or consent with respect to the Loan
Documents requested of any Lender at a time when an Event of Default is in
existence; (3) any attempt to enforce any rights of Agent or any Lender against
any Borrower or any other Person which may be obligated to Agent or any Lender
by virtue of this Agreement or any of the other Loan Documents, including,
without limitation, the Account Debtors; or (4) any attempt to inspect, verify,
protect, preserve, restore, collect, sell, liquidate or otherwise dispose of or
realize upon the Collateral; then all such reasonable legal and accounting
expenses, other costs and out of pocket expenses of Agent or any Lender, as
applicable, shall be charged to Borrowers on a joint and several basis;
provided, that Borrowers shall not be responsible for such expenses, costs and
out-of-pocket expenses to the extent incurred because of the gross negligence or
willful misconduct of Agent or any Lender. All amounts chargeable to Borrowers
under this Section 2.8 shall be Obligations secured by all of the Collateral,
shall be payable on demand to Agent or such Lender, as the case may be, and
shall bear interest from the date such demand is made until paid in full at the
rate applicable to Base Rate Revolving Portions from time to time. Borrowers
shall also jointly and severally
-11-
reimburse Agent and Lenders for expenses incurred by Agent in its administration
of the Collateral to the extent and in the manner provided in Sections 2.9 and
2.10 hereof.
2.9. Bank Charges.
Borrowers shall jointly and severally pay to Agent and each
applicable Lender, on demand, any and all fees, costs or expenses which Agent or
such Lender pays to a bank or other similar institution arising out of or in
connection with (i) the forwarding to any Borrower or any other Person on behalf
of any Borrower, by Agent or any Lender, of proceeds of Loans made to any
Borrower pursuant to this Agreement and (ii) the depositing for collection by
Agent or any Lender of any check or item of payment received or delivered to
Agent or any Lender on account of the Obligations.
2.10. Collateral Protection Expenses; Appraisals.
All commercially reasonable out-of-pocket expenses incurred in
protecting, storing, warehousing, insuring, handling, maintaining and shipping
the Collateral, and any and all excise, property, sales, and use taxes imposed
by any state, federal, or local authority on any of the Collateral or in respect
of the sale thereof shall be jointly and severally borne and paid by Borrowers.
If Borrowers fail to promptly pay any portion thereof when due, Agent may, at
its option, but shall not be required to, pay the same and charge one or more
Borrowers therefor. On an annual basis, at Borrowers' joint and several expense,
Agent shall (i) obtain a desk top appraisal of the Inventory, the ▇▇▇▇ and Hold
Inventory and the Trailer Inventory of the Companies conducted by an employee of
Agent or a third party appraiser reasonably acceptable to Agent and (ii) obtain
an appraisal of the Inventory, the ▇▇▇▇ and Hold Inventory and the Trailer
Inventory of the Companies from a third party appraiser reasonably acceptable to
Agent, each of which appraisals shall include an assessment of the net orderly
liquidation percentage of each category or type of Inventory, ▇▇▇▇ and Hold
Inventory and Trailer Inventory. Additionally, from time to time, if Agent or
any Lender determines that obtaining appraisals is necessary in order for it to
comply with applicable laws or regulations, and at any time if a Default or an
Event of Default shall have occurred and be continuing, Agent may, and at the
direction of the applicable Lender, Agent shall, at Borrowers' joint and several
expense, obtain appraisals from appraisers (who may be personnel of Agent),
stating the then current fair market value of all or any portion of the real
Property or personal Property of any Company, including without limitation the
Inventory of any Company.
2.11. Payment of Charges.
All amounts chargeable to any Borrower under this Agreement
shall be Obligations secured by all of the Collateral, shall be, unless
specifically otherwise provided, payable on demand and shall bear interest from
the date demand was made or such amount is due, as applicable, until paid in
full at the rate applicable to Base Rate Revolving Portions from time to time.
-12-
2.12. No Deductions.
Any and all payments or reimbursements made hereunder shall be
made free and clear of and without deduction for any and all taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto; excluding, however, the following: taxes imposed on the income of Agent
or any Lender or franchise taxes by the jurisdiction under the laws of which
Agent or any Lender is organized or doing business or any political subdivision
thereof and taxes imposed on its income by the jurisdiction of Agent's or such
Lender's applicable lending office or any political subdivision thereof or
franchise taxes (all such taxes, levies, imposts, deductions, charges or
withholdings and all liabilities with respect thereto excluding such taxes
imposed on net income, herein "Tax Liabilities"). If any Borrower shall be
required by law to deduct any such Tax Liabilities from or in respect of any sum
payable hereunder to Agent or any Lender, then the sum payable hereunder by
Borrowers shall be increased as may be necessary so that, after all required
deductions are made, Agent or such Lender receives an amount equal to the sum it
would have received had no such deductions been made.
2.13. Joint and Several Obligations.
Each Borrower acknowledges that it is jointly and severally
liable for all of the Obligations and as a result hereby unconditionally
guaranties the full and prompt payment when due, whether at maturity or earlier,
by reason of acceleration or otherwise, and at all times thereafter, of all
indebtedness, liabilities and obligations of every kind and nature of each other
Borrower to Agent and Lenders and, howsoever created, arising or evidenced,
whether direct or indirect, absolute or contingent, joint or several, now or
hereafter existing, or due or to become due, and howsoever owned, held or
acquired by Agent or any Lender. Each Borrower agrees that if this guaranty, or
any Liens securing this guaranty, would, but for the application of this
sentence, be unenforceable under applicable law, this guaranty and each such
Lien shall be valid and enforceable to the maximum extent that would not cause
this guaranty or such Lien to be unenforceable under applicable law, and this
guaranty shall automatically be deemed to have been amended accordingly at all
relevant times.
Each Borrower hereby agrees that its obligations under this
guaranty shall be unconditional, irrespective of (a) the validity or
enforceability of the Obligations or any part thereof, or of any promissory note
or other document evidencing all or any part of the Obligations, (b) the absence
of any attempt to collect the Obligations from any other Borrower or any
Guarantor or other action to enforce the same, (c) the waiver or consent by
Agent or any Lender with respect to any provision of any agreement, instrument
or document evidencing or securing all or any part of the Obligations, or any
other agreement, instrument or document now or hereafter executed by any other
Borrower and delivered to Agent or any Lender (other than a waiver, forgiveness
or consent by Agent and Lenders that reduces the amount of any of the
Obligations), (d) the failure by Agent or any Lender to take any steps to
perfect and maintain its security interest in, or to preserve its rights to, any
security or Collateral for the Obligations, for its benefit, (e) Agent's or any
Lender's election, in any proceeding instituted under the United States
Bankruptcy Code or any other similar bankruptcy or insolvency legislation, of
the application of Section 1111(b)(2) of the United States Bankruptcy Code or
any other similar
-13-
bankruptcy or insolvency legislation, (f) any borrowing or grant of a security
interest by any Borrower as debtor-in-possession, under Section 364 of the
United States Bankruptcy Code or any other similar bankruptcy or insolvency
legislation, (g) the disallowance, under ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Bankruptcy Code or any other similar bankruptcy or insolvency legislation, of
all or any portion of Agent's or any Lender's claim(s) for repayment of the
Obligations or (h) any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a borrower or a guarantor.
Each Borrower hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of receivership or
bankruptcy of any Borrower, protest or notice with respect to the Obligations
and all demands whatsoever, and covenants that this guaranty will not be
discharged, except by complete and irrevocable payment and performance of the
Obligations. No notice to any Borrower or any other party shall be required for
Agent or any Lender to make demand hereunder. Such demand shall constitute a
mature and liquidated claim against the applicable Borrower. Upon the occurrence
of any Event of Default, Agent or any Lender may, in its sole election, proceed
directly and at once, without notice, against all or any Borrower to collect and
recover the full amount or any portion of the Obligations, without first
proceeding against any other Borrower or any other Person, or any security or
collateral for the Obligations. During the existence of an Event of Default,
Agent and each Lender shall have the exclusive right to determine the
application of payments and credits, if any from any Borrower, any other Person
or any security or collateral for the Obligations, on account of the Obligations
or of any other liability of any Borrower to Agent or any Lender.
At any time after and during the continuance of an Event of
Default, Agent and each Lender may, in its sole discretion, without notice to
any Borrower and regardless of the acceptance of any collateral for the payment
hereof, appropriate and apply toward payment of the Obligations (i) any
indebtedness due or to become due from Agent or any Lender to such Borrower and
(ii) any moneys, credits or other property belonging to such Borrower at any
time held by or coming into the possession of Agent or any Lender or any
Affiliates thereof, whether for deposit or otherwise.
Notwithstanding anything to the contrary set forth in this
Section 2.13, it is the intent of the parties hereto that the liability incurred
by each Borrower in respect of the Obligations of the other Borrowers (and any
Lien granted by each Borrower to secure such Obligations), not constitute a
fraudulent conveyance under Section 548 of the United States Bankruptcy Code or
a fraudulent conveyance or fraudulent transfer under the provisions of any
applicable law of any state or other governmental unit ("Fraudulent
Conveyance"). Consequently, each Borrower, Agent and each Lender hereby agree
that if a court of competent jurisdiction determines that the incurrence of
liability by any Borrower in respect of the Obligations of any other Borrower
(or any Liens granted by such Borrower to secure such Obligations) would, but
for the application of this sentence, constitute a Fraudulent Conveyance, such
liability (and such Liens) shall be valid and enforceable only to the maximum
extent that would not cause the same to constitute a Fraudulent Conveyance, and
this Agreement and the other Loan Documents shall automatically be deemed to
have been amended accordingly.
-14-
Each Borrower expressly waives all rights it may have now or
in the future under any statute, or at common law, or at law or in equity, or
otherwise, to compel Agent or Lenders to ▇▇▇▇▇▇▇▇ assets or to proceed in
respect of the Obligations guaranteed hereunder against any other Borrower or
any Guarantor, any other party or against any security for the payment and
performance of the Obligations before proceeding against, or as a condition to
proceeding against, such Borrower. It is agreed among each Borrower, Agent and
Lenders that the foregoing waivers are of the essence of the transaction
contemplated by this Agreement and the other Loan Documents and that, but for
the provisions of this Section 2.13 and such waivers, Agent and Lenders would
decline to enter into this Agreement.
Each Borrower agrees that the provisions of this Section 2.13
are for the benefit of Agent and Lenders and their respective successors,
transferees, endorsees and assigns, and nothing herein contained shall impair,
as between any other Borrower and Agent or Lenders, the obligations of such
other Borrower under the Loan Documents.
Notwithstanding anything to the contrary in this Agreement or
in any other Loan Document, and except as set forth in Section 2.13, each
Borrower hereby expressly and irrevocably subordinates to payment of the
Obligations any and all rights at law or in equity to subrogation,
reimbursement, exoneration, contribution, indemnification or set off (including
those set forth in Section 2.14) and any and all defenses available to a surety,
guarantor or accommodation co-obligor until the Obligations are indefeasibly
paid in full in cash. Each Borrower acknowledges and agrees that this
subordination is intended to benefit Agent and Lenders and shall not limit or
otherwise affect such Borrower's liability hereunder or the enforceability of
this Section 2.13, and that Agent, Lenders and their respective successors and
assigns are intended third party beneficiaries of the waivers and agreements set
forth in this Section 2.13.
If Agent or any Lender may, under applicable law, proceed to
realize its benefits under any of the Loan Documents giving Agent or such Lender
a Lien upon any Collateral, whether owned by any Borrower or by any other
Person, either by judicial foreclosure or by non-judicial sale or enforcement,
Agent or any Lender may, at its sole option, determine which of its remedies or
rights it may pursue without affecting any of its rights and remedies under this
Section 2.13. If, in the exercise of any of its rights and remedies, Agent or
any Lender shall forfeit any of its rights or remedies, including its right to
enter a deficiency judgment against any Borrower or any other Person, whether
because of any applicable laws pertaining to "election of remedies" or the like,
each Borrower hereby consents to such action by Agent or such Lender and waives
any claim based upon such action, even if such action by Agent or such Lender
shall result in a full or partial loss of any rights of subrogation that each
Borrower might otherwise have had but for such action by Agent or such Lender.
Any election of remedies that results in the denial or impairment of the right
of Agent or any Lender to seek a deficiency judgment against any Borrower shall
not impair any other Borrower's obligation to pay the full amount of the
Obligations. In the event Agent or any Lender shall bid at any foreclosure or
trustee's sale or at any private sale permitted by law or the Loan Documents,
Agent or such Lender may bid all or less than the amount of the Obligations and
the amount of such bid need not be paid by Agent or such Lender but shall be
credited against the Obligations. The amount of the successful bid at any such
sale, whether Agent, Lender or any other party is the
-15-
successful bidder, shall be conclusively deemed to be the fair market value of
the Collateral and the difference between such bid amount and the remaining
balance of the Obligations shall be conclusively deemed to be the amount of the
Obligations guaranteed under this Section 2.13, notwithstanding that any present
or future law or court decision or ruling may have the effect of reducing the
amount of any deficiency claim to which Agent or any Lender might otherwise be
entitled but for such bidding at any such sale.
The liability of Borrowers under this Section 2.13 is in
addition to and shall be cumulative with all liabilities of each Borrower to
Agent and Lenders under this Agreement and the other Loan Documents to which
such Borrower is a party or in respect of any Obligations or obligation of the
other Borrower, without any limitation as to amount, unless the instrument or
agreement evidencing or creating such other liability specifically provides to
the contrary.
2.14. Subrogation and Contribution.
Each Borrower agrees that if any other Borrower or any
Guarantor makes a payment in respect of the Obligations, subject to Section
2.13, it shall be subrogated to the rights of the payees thereof against the
other Borrowers and Guarantors with respect to such payment and shall have the
rights of contribution set forth below against the other Borrowers and
Guarantors. Subject to Section 2.13, each Borrower or Guarantor shall make
payments in respect of the Obligations or contribution payments to the other
Borrowers and Guarantors such that, taking into account all payments received on
account of subrogation or contribution rights: (a) each Borrower or Guarantor
shall have repaid at some time after the date hereof all Obligations the benefit
of which have been received by it or, if the aggregate of all such repayments
would exceed the outstanding Obligations, its pro rata share of the outstanding
Obligations, in accordance with the benefit received by it and (b) if there
remain Obligations unpaid after application of the payments referred to above,
the deficiency shall be shared by Borrowers and Guarantors pro rata in
preparation to their respective net worths on the Closing Date.
SECTION 3. LOAN ADMINISTRATION.
3.1. Manner of Borrowing Revolving Credit Loans/LIBOR
Option.
Borrowings under the credit facility established pursuant to
Section 1 hereof shall be as follows:
3.1.1. Loan Requests. A request for a Revolving Credit Loan
shall be made, or shall be deemed to be made, in the following manner:
(a) subject to the terms of Section 1.4, Wabash (on behalf of
Borrowers) may give Agent notice of its intention to borrow, in which
notice Wabash shall specify the amount of the proposed borrowing of a
Revolving Credit Loan (which shall be no less than $500,000 or an
integral multiple of $100,000) and the proposed borrowing date, which
shall be a Business Day, no later than 11:00 a.m. (Chicago, Illinois
time) on the proposed borrowing date (or in accordance with subsection
3.1.7, 3.1.8 or 3.1.9, as applicable, in the case of a request for a
LIBOR Revolving Portion), provided, however, that no
-16-
such request may be made at a time when there exists a Default or an
Event of Default; and (b) the becoming due of any amount required to be
paid under this Agreement, or the Notes, whether as interest or for any
other Obligation, shall be deemed irrevocably to be a request by a
Borrower for a Revolving Credit Loan on the due date in the amount
required to pay such interest or other Obligation.
3.1.2. Disbursement. Each Borrower hereby irrevocably
authorizes Agent to disburse the proceeds of each Loan requested, or
deemed to be requested, pursuant to subsection 3.1.1 as follows: (i)
the proceeds of each Revolving Credit Loan requested under subsection
3.1.1(a) shall be disbursed by Agent in lawful money of the United
States of America in immediately available funds, in the case of the
initial borrowing, in accordance with the terms of the written
disbursement letter from Borrowers, and in the case of each subsequent
borrowing, by wire transfer to such bank account as may be agreed upon
by Borrowers and Agent from time to time or elsewhere if pursuant to a
written direction from a Borrower and (ii) the proceeds of each
Revolving Credit Loan deemed requested under subsection 3.1.1(b) shall
be disbursed by Agent by way of direct payment of the relevant interest
or other Obligation. If at any time any Loan is funded by Agent or
Lenders in excess of the amount requested or deemed requested by a
Borrower, such Borrower agrees to repay the excess to Agent immediately
upon the earlier to occur of (a) such Borrower's discovery of the error
and (b) notice thereof to such Borrower from Agent or any Lender.
3.1.3. Payment by Lenders. Agent shall give to each Lender
prompt written notice by facsimile, telex or cable of the receipt by
Agent from Wabash of any request for a Revolving Credit Loan. Each such
notice shall specify the requested date and amount of such Revolving
Credit Loan, whether such Revolving Credit Loan shall be subject to the
LIBOR Option, and the amount of each Lender's advance thereunder (in
accordance with its applicable Revolving Loan Percentage). Each Lender
shall, not later than 12:00 p.m. (Chicago time) on such requested date,
wire to a bank designated by Agent the amount of that Lender's
Revolving Loan Percentage of the requested Revolving Credit Loan. The
failure of any Lender to make the Revolving Credit Loans to be made by
it shall not release any other Lender of its obligations hereunder to
make its Revolving Credit Loan. Neither Agent nor any other Lender
shall be responsible for the failure of any other Lender to make the
Revolving Credit Loan to be made by such other Lender. The foregoing
notwithstanding, Agent, in its sole discretion, may from its own funds
make a Revolving Credit Loan on behalf of any Lender. In such event,
the Lender on behalf of whom Agent made the Revolving Credit Loan shall
reimburse Agent for the amount of such Revolving Credit Loan made on
its behalf, on a weekly (or more frequent, as determined by Agent in
its sole discretion) basis. In addition, Agent shall notify Lenders on
a weekly (or more frequent, as determined by Agent in its sole
discretion) basis regarding settlement of the Swingline Loans, and
promptly following such notice, each Lender shall reimburse Agent (in
accordance with its applicable Revolving Loan Percentage) for the
amount of the Swingline Loans outstanding. On each such settlement
date, Agent will pay to each Lender the net amount owing to such Lender
in connection with such
-17-
settlement, including without limitation amounts relating to Loans,
fees, interest and other amounts payable hereunder. The entire amount
of interest attributable to such Revolving Credit Loan or Swingline
Loan for the period from the date on which such Revolving Credit Loan
or Swingline Loan was made by Agent on such Lender's behalf until Agent
is reimbursed by such Lender, shall be paid to Agent for its own
account.
3.1.4. Authorization. Each Borrower hereby irrevocably
authorizes Agent, in Agent's sole discretion, to advance to Wabash or
another Borrower, and to charge to the appropriate Borrower's Loan
Account hereunder as a Revolving Credit Loan (which shall be a Base
Rate Revolving Portion), a sum sufficient to pay all interest accrued
on the Obligations during the immediately preceding month, to pay all
principal due and payable at any time and to pay all fees, costs and
expenses and other Obligations at any time owed by each Borrower to
Agent or any Lender hereunder.
3.1.5. Letter of Credit and LC Guaranty Requests. A request
for a Letter of Credit or LC Guaranty shall be made in the following
manner: Wabash (on behalf of Borrowers) shall give Agent and Bank a
written notice of its request for the issuance of a Letter of Credit or
LC Guaranty, not later than 11:00 a.m. (Chicago, Illinois time), at
least one Business Day before the proposed issuance date thereof, in
which notice such Borrower shall specify the proposed issuer, issuance
date and format and wording for the Letter of Credit or LC Guaranty
being requested (which shall be satisfactory to Agent and the Person
being asked to issue such Letter of Credit or LC Guaranty); provided,
that no such request may be made at a time when there exists a Default
or Event of Default. Such request shall be accompanied by an executed
application and reimbursement agreement in form and substance
satisfactory to Agent and the Person being asked to issue the Letter of
Credit or LC Guaranty, as well as any required corporate resolutions or
other documents reasonably requested by Agent or Bank.
3.1.6. Method of Making Requests. As an accommodation to
Borrowers, unless a Default or an Event of Default is then in
existence, (i) Agent shall permit telephonic or electronic requests for
Revolving Credit Loans to Agent, (ii) Agent and Bank may, in their
discretion, permit electronic transmittal of requests for Letters of
Credit and LC Guaranties to them, and (iii) Agent may, in Agent's
discretion, permit electronic transmittal of instructions,
authorizations, agreements or reports to Agent. Unless a Borrower
specifically directs Agent or Bank, as applicable in writing not to
accept or act upon telephonic or electronic communications from such
Borrower (which direction shall only be applicable to the Persons who
have received the same in writing), neither Agent, Bank nor any Lender
shall have any liability to any Borrower for any loss or damage
suffered by any Borrower as a result of Agent's or Bank's honoring of
any requests, execution of any instructions, authorizations or
agreements or reliance on any reports communicated to it telephonically
or electronically and purporting to have been sent to Agent or Bank by
any Borrower, and neither Agent or Bank shall have any duty to verify
the origin of any such
-18-
communication or the authority of the Person sending it. Each
telephonic request for a Letter of Credit or LC Guaranty accepted by
Agent or Bank hereunder shall be promptly followed by a written
confirmation of such request from the applicable Borrower to Agent and
Bank.
3.1.7. LIBOR Portions. Provided that as of both the date of
the LIBOR Request and the first day of the Interest Period, no Default
or Event of Default exists, in the event a Borrower desires to obtain a
LIBOR Portion, Wabash (on behalf of such Borrower) shall give Agent a
LIBOR Request no later than 11:00 a.m. (Chicago, Illinois time) on the
third Business Day prior to the requested borrowing date. Each LIBOR
Request shall be irrevocable and binding on Borrowers. In no event
shall Borrowers be permitted to have outstanding at any one time LIBOR
Portions with more than six (6) different Interest Periods.
3.1.8. Conversion of Base Rate Portions. Provided that as of
both the date of the LIBOR Request and the first day of the Interest
Period, no Default or Event of Default exists, a Borrower may, on any
Business Day, convert any Base Rate Portion of such Borrower into a
LIBOR Portion. If a Borrower desires to convert a Base Rate Portion,
Wabash (on behalf of such Borrower) shall give Agent a LIBOR Request no
later then 11:00 a.m. (Chicago, Illinois time) on the third Business
Day prior to the requested conversion date. After giving effect to any
conversion of Base Rate Portions to LIBOR Portions, Borrowers shall not
be permitted to have outstanding at any one time LIBOR Portions with
more than six (6) different Interest Periods.
3.1.9. Continuation of LIBOR Portions. Provided that as of
both the date of the LIBOR Request and the first day of the Interest
Period, no Default or Event of Default exists, a Borrower may, on any
Business Day, continue any LIBOR Portions of such Borrower into a
subsequent Interest Period of the same or a different permitted
duration. If a Borrower desires to continue a LIBOR Portion, Wabash (on
behalf of such Borrower) shall give Agent a LIBOR Request no later than
11:00 a.m. (Chicago, Illinois time) on the second Business Day prior to
the requested continuation date. After giving effect to any
continuation of LIBOR Portions, Borrowers shall not be permitted to
have outstanding at any one time LIBOR Portions with more than six (6)
different Interest Periods. If a Borrower shall fail to give timely
notice of its election to continue any LIBOR Portion or portion thereof
as provided above, or if such continuation shall not be permitted, such
LIBOR Portion or portion thereof, unless such LIBOR Portion shall be
repaid, shall automatically be converted into a Base Rate Portion at
the end of the Interest Period then in effect with respect to such
LIBOR Portion.
3.1.10. Inability to Make LIBOR Portions. Notwithstanding any
other provision hereof, if any applicable law, treaty, regulation or
directive, or any change therein or in the interpretation or
application thereof, shall make it unlawful for any Lender (for
purposes of this subsection 3.1.10, the term "Lender" shall include the
office or branch where such Lender or any corporation or bank then
controlling such Lender makes or maintains any LIBOR Portions) to make
or maintain its LIBOR
-19-
Portions, or if with respect to any Interest Period, Agent is unable to
determine the LIBOR relating thereto, or adverse or unusual conditions
in, or changes in applicable law relating to, the London interbank
market make it, in the reasonable judgment of Agent, impracticable to
fund therein any of the LIBOR Portions, or make the projected LIBOR
unreflective of the actual costs of funds therefor to any Lender, the
obligation of Agent and Lenders to make or continue LIBOR Portions or
convert Base Rate Portions to LIBOR Portions hereunder shall forthwith
be suspended during the pendency of such circumstances and the
applicable Borrower shall, if any affected LIBOR Portions are then
outstanding, promptly upon request from Agent, convert such affected
LIBOR Portions into Base Rate Portions.
3.2. Payments.
Except where evidenced by Notes issued by one or more
Borrowers to any Lender and accepted by such Lender specifically containing
payment instructions that are in conflict with this Section 3.2 (in which case
the conflicting provisions of said notes or other instruments shall govern and
control), the Obligations shall be payable as follows:
3.2.1. Principal.
(i) Revolving Credit Loans. Principal on account
of Revolving Credit Loans shall be payable by Borrowers to
Agent for the ratable benefit of Lenders immediately upon the
earliest of (i) at all times during a Dominion Period, the
receipt by Agent, any Company or any Guarantor of any proceeds
of any of the Collateral (except as otherwise provided
herein), including without limitation pursuant to subsections
3.3.1 and 6.2.4, to the extent of said proceeds, subject to
Borrowers' rights to reborrow such amounts in compliance with
subsection 1.1.1 hereof; (ii) the occurrence of an Event of
Default in consequence of which Agent or Majority Lenders
elect to accelerate the maturity and payment of the
Obligations, (iii) subject to the provisions of subsection
1.1.2, at all times that the calculations set forth in
subsection 1.1.1 reflect a negative amount, to the extent of
such amount, or (iv) termination of this Agreement pursuant to
Section 4 hereof; provided, however, that, if an Overadvance
shall exist at any time, Borrowers shall, on demand, jointly
and severally repay the Overadvance. Each payment (including
principal prepayment) on account of principal of the Revolving
Credit Loans shall be applied first to Base Rate Revolving
Portions and then to LIBOR Revolving Portions.
(ii) Term Loan. Principal on account of the Term
Loan shall be payable jointly and severally by Borrowers as
follows: (i) as required pursuant to subsections 3.3.1, 3.3.2,
3.3.3 and 3.3.4, (ii) in 11 consecutive quarterly installments
on each January 1, April 1, July 1 and October 1 commencing on
January 1, 2004, each in the amount of $1,682,143, and (iii) a
final installment in the amount of the remaining principal
balance of the Term Loan on September 30, 2006.
Notwithstanding the foregoing, the entire unpaid
-20-
principal balance of the Term Loan shall be due and payable
upon the termination of this Agreement.
3.2.2. Interest.
(i) Base Rate Portion. Interest accrued on Base
Rate Portions shall be due and payable on the earliest of (1)
the first calendar day of each month (for the immediately
preceding month), computed through the last calendar day of
the preceding month, (2) the occurrence of an Event of Default
in consequence of which Agent or Majority Lenders elect to
accelerate the maturity and payment of the Obligations or (3)
termination of this Agreement pursuant to Section 4 hereof.
(ii) LIBOR Portion. Interest accrued on each
LIBOR Portion shall be due and payable on each LIBOR Interest
Payment Date and on the earlier of (1) the occurrence of an
Event of Default in consequence of which Agent or Majority
Lenders elect to accelerate the maturity and payment of the
Obligations or (2) termination of this Agreement pursuant to
Section 4 hereof.
3.2.3. Costs, Fees and Charges. Costs, fees and charges
payable pursuant to this Agreement shall be jointly and severally
payable by Borrowers to Agent, as and when provided in Section 2 or
Section 3 hereof, as applicable to Agent or a Lender, as applicable, or
to any other Person designated by Agent or such Lender in writing.
3.2.4. Other Obligations. The balance of the Obligations
requiring the payment of money, if any, shall be jointly and severally
payable by Borrowers to Agent for distribution to Lenders, as
appropriate, as and when provided in this Agreement, the Other
Agreements or the Security Documents, or on demand, whichever is later.
3.2.5. Prepayment of/Failure to Borrow LIBOR Portions.
Borrowers may prepay a LIBOR Portion only upon at least three (3)
Business Days prior written notice to Agent (which notice shall be
irrevocable). In the event of (i) the payment of any principal of any
LIBOR Portion other than on the last day of the Interest Period
applicable thereto (including as a result of an Event of Default), (ii)
the conversion of any LIBOR Portion other than on the last day of the
Interest Period applicable thereto, or (iii) the failure to borrow,
convert, continue or prepay any LIBOR Portion on the date specified in
any notice delivered pursuant hereto, then, in any such event,
Borrowers shall jointly and severally compensate each Lender for the
loss, cost and expense attributable to such event, as determined by
such Lender in a manner consistent with its customs and practices.
3.3. Mandatory and Optional Prepayments.
3.3.1. Proceeds of Sale, Loss, Destruction or Condemnation
of Collateral. Except for (a) dispositions of assets permitted by
subsection 8.2.9(ii) and dispositions
-21-
in accordance with this Agreement of assets that are subject to a Lien
permitted by subsection 8.2.5(iv) (in each case, the proceeds of which
shall be applied to reduce the outstanding principal balance of the
Revolving Credit Loans, but shall not permanently reduce the Revolving
Loan Commitments), (b) as otherwise provided in subsection 8.2.9(vi)
and (c) proceeds of Collateral received during the existence of a Event
of Default (which shall be applied as set forth in subsection 3.4.2),
if any Company or any Guarantor sells any of the Collateral or if any
of the Collateral is lost, damaged or destroyed or taken by
condemnation, the applicable Company or Guarantor shall, unless
otherwise agreed by Majority Lenders, pay to Agent for the ratable
benefit of Lenders as and when received by such Company or Guarantor
and as a mandatory prepayment of the Loans, as herein provided, a sum
equal to the proceeds (including insurance payments but net of costs
and taxes incurred in connection with such sale or event) received by
such Company or Guarantor from such sale, loss, damage, destruction or
condemnation.
To the extent that the Collateral sold, lost, damaged,
destroyed or condemned consists of Equipment, real Property, or other
Property other than Accounts or Inventory, the applicable prepayment
shall be applied first, to Agent's costs and expenses relating to the
relevant transaction, second, to the installments of principal due
under the Term Notes ratably, to be applied to future installment
payments in the inverse order of maturity until paid in full and third,
to repay outstanding principal of Revolving Credit Loans, but not as a
permanent reduction of the Revolving Loan Commitments; provided, that
in the case of a sale of (i) the real Property of WNC Cloud located at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; the real Property of
WNTC located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; or
the real Property of WNTC located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, such proceeds shall be applied first, to Agent's costs and
expenses relating to the relevant transaction, second, 50% of the
remaining amount to the installments of principal due under the Term
Notes ratably, to be applied to future installment payments in the
inverse order of maturity until paid in full, and third, to repay
outstanding principal of Revolving Credit Loans, but not as a permanent
reduction of the Revolving Loan Commitments and (ii) any Subject
Equipment, such proceeds shall be applied first, to repayment of the
Other Indebtedness secured by such Subject Equipment and second, in the
manner set forth in the first clause of this sentence.
To the extent that the Collateral sold, lost, damaged,
destroyed or condemned consists of Accounts or Inventory, the
applicable prepayment shall be applied to reduce the outstanding
principal balance of the Revolving Credit Loans, but shall not
permanently reduce the Revolving Loan Commitments. In addition, if the
Collateral subject to such sale, loss, damage, destruction or
condemnation consists of Eligible Accounts, Eligible Inventory,
Eligible ▇▇▇▇ and Hold Inventory or Eligible Trailer Inventory, such
prepayment shall be specifically applied against any limits or
sublimits contained in the Borrowing Base that are predicated on such
Collateral.
Notwithstanding the foregoing, if the proceeds of insurance
(net of costs and taxes incurred) with respect to any loss or
destruction of Equipment or real Property,
-22-
together with the aggregate amount of any other such proceeds during
the then current fiscal year of Borrowers, (i) are less than
$2,500,000, unless an Event of Default is then in existence, Agent
shall remit such proceeds to the applicable Company or Guarantor for
use in replacing or repairing the applicable Property, so long as the
applicable Company or Guarantor has committed to acquire replacement
Property within 180 days of such loss, damage or destruction and has
actually acquired replacement Property within such 360 days of such
loss, damage or destruction (free and clear of Liens other than
Permitted Liens that are not Purchase Money Liens) (and if the
applicable Company or Guarantor fails to commit to replace or rebuild
the damaged Property within such 180 day period or fails to actually
replace or rebuild such damaged Property within such 360 day period,
Borrowers shall prepay the Obligations in the manner specified in the
second sentence of this subsection 3.3.1), (ii) are greater than or
equal to $2,500,000 and less than $5,000,000, unless an Event of
Default is then in existence, such amounts shall be provisionally
applied to reduce the outstanding principal balance of the Revolving
Credit Loans (and a Rebuild Reserve shall be created in the amount of
such proceeds), until the earliest of (1) Borrowers' decision not to
repair or replace the damaged Property, (2) the expiration of one
hundred eighty days (180) days from the receipt of such amount, if the
applicable Company or Guarantor has not yet committed to acquire
replacement Collateral or (3) the expiration of three hundred sixty
(360) days from the receipt of such amount (with such amount being
applied to the Obligations in the manner specified in the second
sentence of this subsection 3.3.1 until payment thereof in full in the
event that the foregoing period ends pursuant to clause (1) or clause
(2)), or (iii) are equal to or greater than $5,000,000, and Borrowers
have requested that Agent and all Lenders agree to permit the
applicable Company or Guarantor to repair or replace the damaged
Property, such amounts shall be provisionally applied to reduce the
outstanding principal balance of the Revolving Credit Loans (and a
Rebuild Reserve shall be created in the amount of such proceeds), until
the earliest of (1) Agent's and all Lenders' decision with respect
thereto, (2) the expiration of one hundred eighty (180) days from the
date of such request, unless the applicable Company or Guarantor has
committed to replace or rebuild the damaged Property, or (3) the
expiration of three hundred sixty (360) days from such request. If
Borrowers decide and commit to repair or replace the applicable
Property as provided in clause (ii) above or if Agent and all Lenders
agree, in their reasonable judgment, to permit any such repair or
replacement under clause (iii) above, the applicable amount shall,
unless an Event of Default is in existence, be released from the
Rebuild Reserve to the applicable Company or Guarantor as needed for
use in replacing or repairing the damaged Property during such three
hundred sixty (360) day period, with any remaining amount at the end of
such three hundred sixty (360) day period applied to the Obligations in
the manner specified in the second sentence of this subsection 3.3.1
until payment thereof in full; and in the case of clause (iii) above,
if either Agent or any Lender declines to permit any such repair or
replacement or fails to respond to Borrowers within such three hundred
sixty (360) day period, or if the applicable Company or Guarantor has
failed to commit to replace or rebuild the damaged Property within such
one hundred eighty (180) day period, such amount shall be
-23-
released from the Rebuild Reserve and applied to the Obligations in the
manner specified in the second sentence of this subsection 3.3.1 until
payment thereof in full.
3.3.2. Excess Cash Flow Recapture. Borrowers shall jointly
and severally prepay the Loans in amounts equal to Wabash's Excess Cash
Flow with respect to each fiscal year of Wabash during the Term hereof,
commencing with the fiscal year ending December 31, 2004, such
prepayments to be based upon, and made within 30 days following the due
date for delivery by Borrowers to Agent of the annual financial
statements required by subsection 8.1.3(i) hereof and each such
prepayment shall be applied to the Loans in the manner specified in the
second sentence of subsection 3.3.1 until payment thereof in full.
3.3.3. Proceeds from Issuance of Additional Indebtedness. If
any Borrower or any Guarantor issues any additional Indebtedness,
Borrowers shall jointly and severally pay to Agent for the ratable
benefit of Lenders, when and as received by any Borrower or any
Guarantor and as a mandatory prepayment of the Obligations, a sum equal
to 100% of the net proceeds to such Borrower or such Guarantor of the
issuance of such Indebtedness; provided, that at any time that both (i)
the outstanding principal balance of the Term Loan is less than or
equal to $25,000,000 and (ii) the Senior Leverage Ratio is 2.00:1.0 or
less, such percentage shall be equal to 50%. Any such prepayment shall
be applied to the Loans in the manner specified in the second sentence
of subsection 3.3.1 until payment thereof in full.
3.3.4. Proceeds from Issuance of Additional Equity. If any
Borrower or any Guarantor issues any additional equity (excluding (i)
equity issued upon conversion of the Convertible Notes to equity
Securities and (ii) equity issued upon exercise of employee options),
Borrowers shall jointly and severally pay to Agent for the ratable
benefit of Lenders, when and as received by any Borrower or any
Guarantor, and as a mandatory prepayment of the Obligations, a sum
equal to 50% of the net proceeds to such Borrower or such Guarantor of
the issuance of such equity. Any such prepayment shall be applied to
the Loans in the manner specified in the second sentence of subsection
3.3.1 until payment thereof in full.
3.3.5. Other Mandatory Prepayments. If any Borrower or any
Guarantor receives any proceeds from any tax refunds, indemnity
payments or pension plan reversions, Borrowers shall jointly and
severally pay to Agent for the benefit of Lenders, when and as received
by such Borrower or such Guarantor, and as a mandatory prepayment of
the Obligations, a sum equal to 100% of such proceeds of such tax
refund, indemnity payment or pension plan reversions; provided,
however, that at any time that both (i) the outstanding principal
balance of the Term Loan is less than or equal to $25,000,000 and (ii)
the Senior Leverage Ratio is 2.00 to 1.0 or less, such percentage shall
be 50%. Any such prepayment shall be applied to the Obligations in the
manner specified in the third sentence of subsection 3.3.1 until
payment thereof in full.
-24-
3.3.6. LIBOR Portions. If the application of any payment
made in accordance with the provisions of this Section 3.3 at a time
when no Event of Default has occurred and is continuing would result in
termination of a LIBOR Portion prior to the last day of the Interest
Period for such LIBOR Portion, the amount of such prepayment shall not
be applied to such LIBOR Portion, but will, at Borrowers' option, be
held by Agent in a non-interest bearing account at a Lender or another
bank satisfactory to Agent in its discretion, which account is in the
name of Agent and from which account only Agent can make any
withdrawal, in each case to be applied as such amount would otherwise
have been applied under this Section 3.3 at the earlier to occur of (i)
the last day of the relevant Interest Period or (ii) the occurrence of
a Default or an Event of Default.
3.3.7. Optional Prepayments. Borrowers may, at their option
from time to time upon not less than 1 day's prior written notice to
Agent, prepay installments of the Term Notes, provided that the amount
of any such prepayment is at least $500,000 and in integral multiples
of $100,000 above $500,000, and that such prepayments are made ratably
with respect to all Term Notes. Each such prepayment shall be applied
to the installments of principal due under the Term Notes on a ratable
basis. Except for charges applicable to prepayments of LIBOR Term
Portions, such prepayments shall be without premium or penalty.
3.3.8. Optional Reductions of Revolving Loan Commitments.
Borrowers may, at their option from time to time but not more than once
in any 12 month period upon not less than 30 Business Days' prior
written notice to Agent, terminate in whole or permanently reduce
ratably in part, the unused portion of the Revolving Loan Commitments,
provided, however, that (i) each such partial reduction shall be in an
amount of $1,000,000 or integral multiples of $1,000,000 in excess
thereof and (ii) the aggregate of all optional reductions to the
Revolving Credit Commitments may not exceed $20,000,000 during any 12
month period or $50,000,000 during the Term. Except for charges under
subsection 3.2.5 applicable to prepayments of LIBOR Revolving Portions,
such prepayments shall be without premium or penalty.
3.3.9. Special Mandatory Prepayment of Term Loan. Borrowers
will make an additional mandatory prepayment of the Term Loan on
January 1, 2004 in the amount of $5,000,000. Such prepayment shall be
applied to the Term Notes ratably, and to installments due thereunder
in the inverse order of maturity until paid in full.
3.4. Application of Payments and Collections.
3.4.1. Collections. All items of payment received by Agent
in immediately available funds by 12:00 noon, Chicago, Illinois, time,
on any Business Day shall be deemed received on that Business Day. All
items of payment received after 12:00 noon, Chicago, Illinois, time, on
any Business Day shall be deemed received on the following Business
Day. If as the result of collections of Accounts as authorized by
subsection 6.2.4 hereof or otherwise, a credit balance exists in the
Loan Account, such credit balance shall not accrue interest in favor of
Borrowers, but shall be
-25-
disbursed to a Borrower or otherwise at a Borrower's direction in the
manner set forth in subsection 3.1.2, upon a Borrower's request at any
time, so long as no Default or Event of Default then exists. Agent may
at its option, offset such credit balance against any of the
Obligations upon and during the continuance of an Event of Default.
3.4.2. Apportionment, Application and Reversal of Payments.
Principal and interest payments shall be apportioned ratably among
Lenders (according to the unpaid principal balance of the Loans to
which such payments relate held by each Lender). All payments shall be
remitted to Agent and all such payments not relating to principal or
interest of specific Loans, or not constituting payment of specific
fees, and all proceeds of Accounts, or, except as provided in
subsection 3.3.1, other Collateral received by Agent, shall be applied,
ratably, subject to the provisions of this Agreement, first, to pay any
fees, indemnities, or expense reimbursements (other than amounts
related to Product Obligations) then due to Agent or Lenders from any
Borrower; second, to pay interest due from Borrowers in respect of all
Loans, including Swingline Loans and Agent Loans; third, to pay or
prepay principal of Swingline Loans and Agent Loans; fourth, to pay or
prepay principal of the Revolving Credit Loans (other than Swingline
Loans and Agent Loans) and unpaid reimbursement obligations in respect
of Letters of Credit; fifth, to pay an amount to Agent equal to all
outstanding Letter of Credit Obligations to be held as cash Collateral
for such Obligations (in an amount of 105% of the aggregate amount
thereof); sixth, to pay or prepay principal of the Term Loan; seventh,
to the payment of any other Obligation (other than amounts related to
Product Obligations) due to the Agent or any Lender by any Borrower;
and eighth, to pay any amounts owing in respect of Product Obligations.
As between Agent and Borrowers, after the occurrence and during the
continuance of an Event of Default, Agent shall have the continuing
exclusive right to apply and reapply any and all such payments and
collections received at any time or times hereafter by Agent or its
agent against the Obligations, in such manner as Agent may deem
advisable, notwithstanding any entry by Agent or any Lender upon any of
its books and records.
3.5. All Loans to Constitute One Obligation.
The Loans, Letters of Credit and LC Guarantees shall
constitute one general joint and several Obligation of Borrowers, and shall be
secured by Agent's Lien upon all of the Collateral.
3.6. Loan Account.
Agent shall enter all Loans as debits to one or more loan
accounts (each, a "Loan Account") and shall also record in the Loan Account all
payments made by or on behalf of each Borrower on any Obligations and all
proceeds of Collateral which are finally paid to Agent, and may record therein,
in accordance with customary accounting practice, other debits and credits,
including interest and all charges and expenses properly chargeable to each
Borrower.
-26-
3.7. Statements of Account.
Agent will account to Borrowers monthly with a statement of
Loans, charges and payments made pursuant to this Agreement during the
immediately preceding month, and such account rendered by Agent shall be deemed
final, binding and conclusive upon Borrowers absent demonstrable error unless
Agent is notified by Borrowers in writing to the contrary within 30 days of the
date each accounting is received by Borrowers. Such notice shall only be deemed
an objection to those items specifically objected to therein.
3.8. Increased Costs.
If any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law) adopted or implemented after the date of this Agreement and having general
applicability to all banks or finance companies within the jurisdiction in which
any Lender operates (excluding, for the avoidance of doubt, the effect of and
phasing in of capital requirements or other regulations or guidelines passed
prior to the date of this Agreement), or any interpretation or application
thereof by any governmental authority charged with the interpretation or
application thereof, or the compliance of such Lender therewith, shall:
(i) (1) subject such Lender to any tax with
respect to this Agreement (other than (a) any tax based on or
measured by net income or otherwise in the nature of a net
income tax, including, without limitation, any franchise tax
or any similar tax based on capital, net worth or comparable
basis for measurement and (b) any tax collected by a
withholding on payments and which neither is computed by
reference to the net income of the payee nor is in the nature
of an advance collection of a tax based on or measured by the
net income of the payee) or (2) change the basis of taxation
of payments to such Lender of principal, fees, interest or any
other amount payable hereunder or under any Loan Documents
(other than in respect of (a) any tax based on or measured by
net income or otherwise in the nature of a net income tax,
including, without limitation, any franchise tax or any
similar tax based on capital, net worth or comparable basis
for measurement and (b) any tax collected by a withholding on
payments and which neither is computed by reference to the net
income of the payee nor is in the nature of an advance
collection of a tax based on or measured by the net income of
the payee);
(ii) impose, modify or hold applicable any
reserve (except any reserve taken into account in the
determination of the applicable LIBOR), special deposit,
assessment or similar requirement against assets held by, or
deposits in or for the account of, advances or loans by, or
other credit extended by, any office of such Lender, including
(without limitation) pursuant to Regulation D; or
(iii) impose on such Lender or the London
interbank market any other condition with respect to any Loan
Document;
-27-
and the result of any of the foregoing is to increase the cost to such Lender of
making, renewing or maintaining Loans hereunder or the result of any of the
foregoing is to reduce the rate of return on such Lender's capital as a
consequence of its obligations hereunder, or the result of any of the foregoing
is to reduce the amount of any payment (whether of principal, interest or
otherwise) in respect of any of the Loans, then, in any such case, Borrowers
shall jointly and severally pay such Lender, upon demand and certification not
later than sixty (60) days following its receipt of notice of the imposition of
such increased costs, such additional amount as will compensate such Lender for
such additional cost or such reduction, as the case may be, to the extent such
Lender has not otherwise been compensated, with respect to a particular Loan,
for such increased cost as a result of an increase in the Base Rate or the
LIBOR. An officer of the applicable Lender shall determine the amount of such
additional cost or reduced amount using reasonable averaging and attribution
methods and shall certify the amount of such additional cost or reduced amount
to Borrowers, which certification shall include a written explanation of such
additional cost or reduction to Borrowers. Such certification shall be
conclusive absent manifest error. If a Lender claims any additional cost or
reduced amount pursuant to this Section 3.8, then such Lender shall use
reasonable efforts (consistent with legal and regulatory restrictions) to
designate a different lending office or to file any certificate or document
reasonably requested by Borrowers if the making of such designation or filing
would avoid the need for, or reduce the amount of, any such additional cost or
reduced amount and would not, in the sole discretion of such Lender, be
otherwise disadvantageous to such Lender.
3.9. Basis for Determining Interest Rate Inadequate.
In the event that Agent or any Lender shall have determined
that:
(i) reasonable means do not exist for
ascertaining the LIBOR for any Interest Period; or
(ii) Dollar deposits in the relevant amount and
for the relevant maturity are not available in the London
interbank market with respect to a proposed LIBOR Portion, or
a proposed conversion of a Base Rate Portion into a LIBOR
Portion; then
Agent or such Lender shall give Borrowers prompt written, telephonic or
electronic notice of the determination of such effect. If such notice is given,
(i) any such requested LIBOR Portion shall be made as a Base Rate Portion,
unless Borrowers shall notify Agent no later than 11:00 a.m. (Chicago, Illinois
time) three (3) Business Days prior to the date of such proposed borrowing that
the request for such borrowing shall be canceled or made as an unaffected type
of LIBOR Portion, and (ii) any Base Rate Portion which was to have been
converted to an affected type of LIBOR Portion shall be continued as or
converted into a Base Rate Portion, or, if Borrowers shall notify Agent, no
later than 11:00 a.m. (Chicago, Illinois time) three (3) Business Days prior to
the proposed conversion, shall be maintained as an unaffected type of LIBOR
Portion.
-28-
3.10. Sharing of Payments, Etc.
If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) on
account of any Loan made by it in excess of its ratable share of payments on
account of Loans made by all Lenders, such Lender shall forthwith purchase from
each other Lender such participation in such Loan as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each other
Lender; provided, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lenders the
purchase price to the extent of such recovery, together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. Borrowers agree
that any Lender so purchasing a participation from another Lender pursuant to
this Section 3.10 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of each
Borrower in the amount of such participation. Notwithstanding anything to the
contrary contained herein, all purchases and repayments to be made under this
Section 3.10 shall be made through Agent.
SECTION 4. TERM AND TERMINATION
4.1. Term of Agreement.
Subject to the right of Lenders to cease making Loans to
Borrowers during the continuance of any Default or Event of Default, this
Agreement shall be in effect from the date hereof through and including
September 30, 2006 (the "Term"), unless terminated as provided in Section 4.2
hereof.
4.2. Termination.
4.2.1. Termination by Lenders. Agent may, and at the
direction of Majority Lenders shall, terminate this Agreement upon
notice during the continuance of an Event of Default.
4.2.2. Termination by Borrowers. Upon at least 30 days'
prior written notice to Agent and Lenders, Borrowers may, at their
option, terminate this Agreement; provided, however, no such
termination shall be effective until Borrowers have paid or
collateralized to Agent's reasonable satisfaction all of the
Obligations in immediately available funds, all Letters of Credit and
LC Guaranties have expired, terminated or have been cash collateralized
(in an amount equal to 105% of the Dollar Equivalent of the LC Amount)
to Agent's reasonable satisfaction and Borrowers have complied with
subsection 3.2.5. Any notice of termination given by Borrowers shall be
irrevocable unless all Lenders otherwise agree in writing and no Lender
shall have any obligation to make any Loans or issue or procure any
Letters of Credit or LC Guaranties on or after the termination date
stated in such notice. Without limiting
-29-
Borrowers' right to reduce the amount of the Revolving Loan Commitments
pursuant to subsection 3.3.8, Borrowers may elect to terminate this
Agreement in its entirety only. No section of this Agreement or type of
Loan available hereunder may be terminated singly.
4.2.3. Effect of Termination. All of the Obligations shall
be immediately due and payable upon the termination date stated in any
notice of termination of this Agreement. All undertakings, agreements,
covenants, warranties and representations of Borrowers contained in the
Loan Documents shall survive any such termination and Agent shall
retain its Liens in the Collateral and Agent and each Lender shall
retain all of its rights and remedies under the Loan Documents
notwithstanding such termination until all Obligations have been
discharged or paid, in full, in immediately available funds, including,
without limitation, all Obligations under subsection 3.2.5 resulting
from such termination. Notwithstanding the foregoing or the payment in
full of the Obligations, Agent shall not be required to terminate its
Liens in the Collateral unless, with respect to any loss or damage
Agent may incur as a result of dishonored checks or other items of
payment received by Agent from any Borrower or any Account Debtor and
applied to the Obligations, Agent shall, at its option, (i) have
received a written agreement satisfactory to Agent, executed by
Borrowers and by any Person whose loans or other advances to any
Borrower are used in whole or in part to satisfy the Obligations,
indemnifying Agent and each Lender from any such loss or damage or (ii)
have retained cash Collateral or other Collateral for such period of
time as Agent, in its reasonable discretion, may deem necessary to
protect Agent and each Lender from any such loss or damage.
SECTION 5. SECURITY INTERESTS
5.1. Security Interest in Collateral.
To secure the prompt payment and performance to Agent, each
Lender and each Affiliate of Agent and each Lender of the Obligations, each
Borrower hereby grants to Agent for the benefit of itself, each Lender and each
Affiliate of Agent and each Lender a continuing Lien upon all of such Borrower's
assets, including all of the following Property and interests in Property of
such Borrower, whether now owned or existing or hereafter created, acquired or
arising and wheresoever located:
(i) Accounts;
(ii) Certificated Securities;
(iii) Chattel Paper;
(iv) Computer Hardware and Software and all
rights with respect thereto, including, any and all licenses,
options, warranties, service contracts, program services, test
rights, maintenance rights, support rights, improvement
-30-
rights, renewal rights and indemnifications, and any
substitutions, replacements, additions or model conversions of
any of the foregoing;
(v) Contract Rights;
(vi) Deposit Accounts;
(vii) Documents;
(viii) Equipment;
(ix) Financial Assets;
(x) Fixtures;
(xi) General Intangibles, including Payment
Intangibles and Software;
(xii) Goods (including all of its Equipment,
Fixtures and Inventory), and all accessions, additions,
attachments, improvements, substitutions and replacements
thereto and therefor;
(xiii) Instruments;
(xiv) Intellectual Property;
(xv) Inventory (including without limitation ▇▇▇▇
and Hold Inventory and Trailer Inventory);
(xvi) Investment Property;
(xvii) money (of every jurisdiction whatsoever);
(xviii) Letter-of-Credit Rights;
(xix) Payment Intangibles;
(xx) Security Entitlements;
(xxi) Software;
(xxii) Supporting Obligations;
(xxiii) Uncertificated Securities; and
(xxiv) to the extent not included in the foregoing,
all other personal property of any kind or description;
-31-
together with all books, records, writings, data bases, information and other
property relating to, used or useful in connection with, or evidencing,
embodying, incorporating or referring to any of the foregoing, and all Proceeds,
products, offspring, rents, issues, profits and returns of and from any of the
foregoing; provided, that to the extent that the provisions of any lease or
license of Computer Hardware and Software or Intellectual Property expressly
prohibit (which prohibition is enforceable under applicable law) any assignment
thereof, and the grant of a security interest therein, Agent will not enforce
its security interest in the applicable Borrower's rights under such lease or
license (other than in respect of the Proceeds thereof) for so long as such
prohibition continues, it being understood that upon request of Agent, such
Borrower will in good faith use reasonable efforts to obtain consent for the
creation of a security interest in favor of Agent (and to Agent's enforcement of
such security interest) in Agent's rights under such lease or license, excluding
licenses to use ▇▇ ▇▇▇▇▇▇▇ World and One World software, for which no Lien or
consent shall be requested or obtained.
5.2. Other Collateral.
5.2.1. Commercial Tort Claims. The applicable Borrower shall
promptly notify Agent in writing upon incurring or otherwise obtaining
a Commercial Tort Claim after the Closing Date against any third party
and, upon request of Agent, promptly enter into an amendment to this
Agreement and do such other acts or things deemed appropriate by Agent
to give Agent a security interest in any such Commercial Tort Claim.
Each Borrower represents and warrants that as of the date of this
Agreement, to its knowledge, it does not possess any Commercial Tort
Claims other than as described on Exhibit 5.2.1 hereto.
5.2.2. Other Collateral. The applicable Borrower shall
promptly notify Agent in writing upon acquiring or otherwise obtaining
any Collateral after the date hereof consisting of Deposit Accounts,
Investment Property, Letter-of-Credit Rights or Electronic Chattel
Paper and, upon the request of Agent, promptly execute such other
documents, and do such other acts or things deemed appropriate by Agent
to deliver to Agent control with respect to such Collateral; promptly
notify Agent in writing upon acquiring or otherwise obtaining any
Collateral after the date hereof consisting of Documents or Instruments
and, upon the request of Agent, will promptly execute such other
documents, and do such other acts or things deemed appropriate by Agent
to deliver to Agent possession of such Documents which are negotiable
and Instruments, and, with respect to nonnegotiable Documents, to have
such nonnegotiable Documents issued in the name of Agent; and with
respect to Collateral in the possession of a third party, other than
Certificated Securities and Goods covered by a Document, obtain an
acknowledgement from the third party that it is holding the Collateral
for the benefit of Agent.
5.2.3. Apex Trailer Leases. Upon request by Agent, the
applicable Borrower shall promptly take such action as is reasonably
required by Agent to perfect Agent's Lien on the Apex Trailer Leases,
which shall include without limitation, delivery to Agent of all
original Apex Trailer Leases and the addition to each Apex Trailer
Lease of a stamped legend indicating that such Apex Trailer Lease
-32-
is subject to a Lien in favor of Agent. The applicable Borrower shall
promptly deliver to Agent such information as Agent may reasonably
request from time to time with respect to each Apex Trailer Lease.
5.3. Lien Perfection; Further Assurances.
Each Borrower shall execute such instruments, assignments or
documents as are necessary to perfect Agent's Lien upon any of the Collateral
and shall take such other action as may be required to perfect or to continue
the perfection of Agent's Lien upon the Collateral. Unless prohibited by
applicable law, each Borrower hereby authorizes Agent to execute and file any
UCC, PPSA or similar financing statement, including, without limitation,
financing statements that indicate the Collateral (i) as all assets of such
Borrower or words of similar effect, or (ii) as being of an equal or lesser
scope, or with greater or lesser detail, than as set forth in Section 5.1, on
such Borrower's behalf. Each Borrower also hereby ratifies its authorization for
Agent to have filed in any jurisdiction any like financing statements or
amendments thereto if filed prior to the date hereof. The parties agree that a
carbon, photographic or other reproduction of this Agreement shall be sufficient
as a financing statement and may be filed in any appropriate office in lieu
thereof. At Agent's request, each Borrower shall also promptly execute or cause
to be executed and shall deliver to Agent any and all documents, instruments and
agreements deemed necessary by Agent, to give effect to or carry out the terms
or intent of the Loan Documents.
5.4. Lien on Realty.
In addition to the Property described in Sections 5.1 and 5.2
and the Property of each Guarantor described in the applicable Collateral
Documents, the due and punctual payment and performance of the Obligations shall
also be secured by the Lien created by Mortgages upon all real Property of each
Borrower or Guarantor now or hereafter owned. Each Mortgage shall be executed by
the applicable Borrower or Guarantor in favor of Agent. Each Mortgage shall be
duly recorded, at Borrowers' joint and several expense, in each office where
such recording is required to constitute a fully perfected first Lien on the
real Property covered thereby. If so requested by Agent, the applicable Borrower
or Guarantor shall deliver to Agent, at Borrowers' joint and several expense,
(i) with respect to each individual parcel of real Property with an appraised
value of $1,000,000 or less, title tract searches performed by a title insurance
company reasonably satisfactory to Agent and (ii) with respect to each
individual parcel of real Property with an appraised value in excess of
$1,000,000, mortgagee title insurance policies issued by a title insurance
company reasonably satisfactory to Agent, which policies shall be in form and
substance reasonably satisfactory to Agent and shall insure a valid first Lien
in favor of Agent, for the benefit of itself and the Lenders, on the Property
covered by each Mortgage, subject only to those exceptions reasonably acceptable
to Agent and its counsel. If so requested by Agent, with respect to each
individual parcel of real Property with an appraised value in excess of
$1,000,000, the applicable Borrower or Guarantor shall deliver to Agent an ALTA
as-built plat of survey prepared by a surveyor licensed in the state in which
such real Property is located (which surveys may be delivered within 30 days
after the Closing Date). The applicable Borrower or Guarantor shall deliver to
Agent such other documents as Agent and its counsel may reasonably request
relating to the real Property subject to the
-33-
Mortgages. Notwithstanding the foregoing, Borrowers shall not be required to
deliver a Mortgage, title policy or survey with respect to the real Property of
WNTC located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ until September 30, 2003
and then, only to the extent that such real Property has not been sold prior to
such date.
SECTION 6. COLLATERAL ADMINISTRATION
6.1. General.
6.1.1. Location of Collateral. All Collateral, other than
(i) Inventory in transit, (ii) motor vehicles not included in Trailer
Inventory or Apex Trailer Inventory, (iii) the Apex Trailer Inventory
or (iv) Collateral in the possession of Agent, will at all times be
kept by a Borrower or one of its Subsidiaries at one or more of the
business locations set forth in Exhibit 6.1.1 hereto, as updated by
Borrowers providing prior written notice to Agent of any new location.
Apex Trailer Inventory shall be located either (a) at one or more of
the business locations set forth in Exhibit 6.1.1 hereto, as updated by
Borrowers providing prior written notice to Agent of any new location,
or (b) at a location of a customer of the applicable Borrower, pursuant
to a Apex Trailer Lease, as set forth in Exhibit 6.3.2 hereto, as
updated by Borrowers providing prior written notice to Agent of any new
location.
6.1.2. Insurance of Collateral. Borrowers shall maintain and
pay for insurance upon all Collateral wherever located and with respect
to the business of each Borrower and each of its Subsidiaries, covering
casualty, hazard, public liability, workers' compensation, business
interruption and such other risks in such amounts and with such
insurance companies as are reasonably satisfactory to Agent. Borrowers
shall deliver certified copies of such policies to Agent as promptly as
practicable, with satisfactory lender's loss payable endorsements,
naming Agent as a loss payee, assignee or additional insured, as
appropriate, as its interest may appear, showing only such other loss
payees, assignees and additional insureds (i) as required under
contractual arrangements customary to Borrowers' operations (but not
involving Indebtedness for Money Borrowed) or (ii) as otherwise are
satisfactory to Agent and with respect to business interruption
insurance, an executed collateral assignment thereof. Each policy of
insurance or endorsement shall contain a clause requiring the insurer
to give not less than 10 days' prior written notice to Agent in the
event of cancellation of the policy for nonpayment of premium and not
less than 30 days' prior written notice to Agent in the event of
cancellation of the policy for any other reason whatsoever and a clause
specifying that the interest of Agent shall not be impaired or
invalidated by any act or neglect of any Borrower, any of its
Subsidiaries or the owner of the Property or by the occupation of the
premises for purposes more hazardous than are permitted by said policy.
All proceeds of business interruption insurance (if any) of each
Borrower and its Subsidiaries shall be remitted to Agent for
application to the outstanding balance of the Revolving Credit Loans,
but shall not permanently reduce the Revolving Loan Commitments.
-34-
Unless Borrowers provide Agent with evidence of the insurance
coverage required by this Agreement, Agent may, but need not, purchase
insurance at Borrowers' joint and several expense to protect Agent's
interests in the Properties of each Borrower and its Subsidiaries. This
insurance may, but need not, protect the interests of each Borrower and
its Subsidiaries. The coverage that Agent purchases may not pay any
claim that a Borrower or any Subsidiary of such Borrower makes or any
claim that is made against a Borrower or any such Subsidiary in
connection with said Property. Borrowers may later cancel any insurance
purchased by Agent, but only after providing Agent with evidence that
Borrowers and their Subsidiaries have obtained insurance as required by
this Agreement. If Agent purchases insurance, Borrowers will be jointly
and severally responsible for the costs of that insurance, including
interest and any other charges Agent may impose in connection with the
placement of insurance, until the effective date of the cancellation or
expiration of the insurance. The costs of the insurance may be added to
the Obligations. The costs of the insurance may be more than the cost
of insurance that Borrowers and the Subsidiaries may be able to obtain
on their own.
6.1.3. Protection of Collateral. Neither Agent nor any
Lender shall be liable or responsible in any way for the safekeeping of
any of the Collateral or for any loss or damage thereto (except for
reasonable care in the custody thereof while any Collateral is in
Agent's or any Lender's actual possession) or for any diminution in the
value thereof, or for any act or default of any warehouseman, carrier,
forwarding agency, or other person whomsoever, but the same shall be at
Borrowers' sole risk.
6.2. Administration of Accounts.
6.2.1. Records, Schedules and Assignments of Accounts. Each
Company shall keep accurate and complete records of its Accounts and
all payments and collections thereon and shall submit to Agent on such
periodic basis as Agent shall request a sales and collections report
for the preceding period, in form consistent with the reports currently
prepared by such Company with respect to such information. Concurrently
with the delivery of each Borrowing Base Certificate described in
subsection 8.1.4, or more frequently as reasonably requested by Agent,
from and after the date hereof, each Company shall deliver to Agent a
detailed aged trial balance of all of its Accounts, specifying the
names, face values, dates of invoices and due dates for each Account
Debtor obligated on an Account so listed ("Schedule of Accounts"), and
upon Agent's request therefor, copies of proof of delivery and the
original copy of all documents, including, without limitation,
repayment histories and present status reports relating to the Accounts
so scheduled and such other matters and information relating to the
status of then existing Accounts as Agent shall reasonably request.
Concurrently with the delivery of the financial statements to be
delivered pursuant to subsection 8.1.3(i), or more frequently if so
requested by Agent, a listing of Account Debtors, showing all names and
addresses. If requested by Agent, each Company shall execute and
deliver to Agent formal written assignments of all of its Accounts
weekly or daily, which shall include all Accounts that have been
created since the
-35-
date of the last assignment, together with copies of invoices or
invoice registers related thereto.
6.2.2. Discounts, Allowances, Disputes. If a Company grants
any discounts, allowances or credits that are not shown on the face of
the invoice for the Account involved, such Company shall report such
discounts, allowances or credits, as the case may be, to Agent as part
of the next required Schedule of Accounts.
6.2.3. Account Verification. Any of Agent's officers,
employees or agents shall have the right, at any time or times
hereafter, in the name of Agent, any designee of Agent or a Company, to
verify the validity, amount or any other matter relating to any
Accounts by mail, telephone, electronic communication or otherwise.
Each Company shall cooperate fully with Agent in an effort to
facilitate and promptly conclude any such verification process.
6.2.4. Maintenance of Dominion Account. Each Company shall
maintain a Dominion Account or Accounts pursuant to lockbox and blocked
account arrangements acceptable to Agent with Bank and such other banks
as may be selected by such Company. Each Company shall obtain the
agreement by the applicable banks in favor of Agent to waive any
recoupment, setoff rights, and any security interest in, or against,
the funds so deposited. Each Company shall issue to any such banks an
irrevocable letter of instruction directing such banks to deposit all
payments or other remittances received in the lockbox and blocked
accounts to the Dominion Account. All funds deposited in the Dominion
Account shall be available to Borrowers at their discretion unless a
Dominion Period is in effect. Upon the occurrence of a Dominion Event,
Agent may, and at the direction of Majority Lenders Agent shall, send
the appropriate notice to Borrowers to commence a Dominion Period. If a
Dominion Period is in effect, all funds in the Dominion Account shall
(i) immediately become the property of Agent, for the ratable benefit
of Lenders and (ii) be applied on account of the Obligations as
provided in subsection 3.2.1. Agent shall have the right to invoke
three separate Dominion Periods hereunder; once a third Dominion Period
has been commenced, it shall remain in effect until the repayment in
full of the Obligations. Agent assumes no responsibility for such
lockbox and blocked account arrangements, including, without
limitation, any claim of accord and satisfaction or release with
respect to deposits accepted by any bank thereunder. Notwithstanding
anything to the contrary contained herein, all such lockbox and blocked
account arrangements will be in place and operational on or before
October 23, 2003.
6.2.5. Collection of Accounts, Proceeds of Collateral. To
expedite collection, each Company shall endeavor in the first instance
to make collection of its Accounts for Agent. If no Default or Event of
Default is in existence, (i) each Company shall directly collect
remittances on account of its Accounts owing from retail customers at
its branch locations and (ii) each Company agrees that all invoices
rendered and other requests made by such Company for payment in respect
of Accounts other than retail Accounts shall contain a written
statement directing payment in respect of such Accounts to be paid to a
lockbox established pursuant to
-36-
subsection 6.2.4. All remittances received by each Company on account
of Accounts, together with the proceeds of any other Collateral, shall
be held as Agent's property, for its benefit and the benefit of
Lenders, by such Company as trustee of an express trust for Agent's
benefit and such Company shall immediately deposit same in kind in a
blocked account or in the Dominion Account. Upon the occurrence of a
Default or an Event of Default, each Company agrees that all Accounts
(including retail Accounts) shall be collected by payment to a lockbox
in the manner described in clause (ii) above. Agent retains the right
at all times after the occurrence and during the continuance of a
Default or an Event of Default to notify Account Debtors that each
Company's Accounts have been assigned to Agent and to collect each
Company's Accounts directly in its own name, or in the name of Agent's
agent, and to charge the collection costs and expenses, including
attorneys' fees, jointly and severally to Borrowers.
6.2.6. Taxes. If an Account includes a charge for any tax
payable to any governmental taxing authority, Agent is authorized, in
its sole discretion, to pay the amount thereof to the proper taxing
authority for the account of any Borrower and to charge any Borrower
therefor, except for taxes that (i) are being actively contested in
good faith and by appropriate proceedings and with respect to which the
applicable Company maintains reasonable reserves on its books therefor
and (ii) would not reasonably be expected to result in any Lien other
than a Permitted Lien. In no event shall Agent or any Lender be liable
for any taxes to any governmental taxing authority that may be due by
any Company.
6.3. Administration of Inventory.
6.3.1. Recordkeeping; Physicals. Each Company shall keep
separate records of its Inventory, Trailer Inventory, ▇▇▇▇ and Hold
Inventory and Apex Trailer Inventory, which records shall be complete
and accurate and complete in all material respects. Borrowers shall
furnish to Agent separate Inventory, Trailer Inventory and ▇▇▇▇ and
Hold Inventory reports for each Company concurrently with the delivery
of each Borrowing Base Certificate described in subsection 8.1.4 or
more frequently as reasonably requested by Agent, which reports will be
in such other format and detail as Agent shall reasonably request and
shall include a current list separately sharing all locations of such
Company's Inventory, Trailer Inventory and ▇▇▇▇ and Hold Inventory.
Each Company shall conduct a physical inventory no less frequently than
annually (or, if an Event of Default is in existence, quarterly if so
requested by Agent), and, in each case, shall provide to Agent a report
based on each such physical inventory promptly thereafter, together
with such supporting information as Agent shall reasonably request.
6.3.2. Apex Trailer Leases. Each Apex Trailer Lease in
existence as of the Closing Date is listed on Exhibit 6.3.2. Exhibit
6.3.2 also shows the name of each lessee. All lease payments will be
directed to the lockbox and blocked account system in the manner set
forth in subsection 6.2.5. As of the Closing Date, all of the Apex
Trailer Leases are in full force and effect without default by any
party thereto.
-37-
Apex has unencumbered title to each item of Apex Trailer Inventory
subject to an Apex Trailer Lease and the unencumbered right to subject
such item of Apex Trailer Inventory to such Apex Trailer Lease.
6.3.3. Vehicle Titles. Each Borrower that maintains Trailer
Inventory or Apex Trailer Inventory shall at all times maintain in
place its current system for processing and safekeeping of certificates
of title for used trailers constituting part of the Trailer Inventory
or the Apex Trailer Inventory.
6.4. Administration of Equipment.
Each Company shall keep records of its Equipment which shall
be complete and accurate in all material respects itemizing and describing the
kind, type, quality, quantity and book value of its Equipment and all
dispositions made in accordance with subsection 8.2.9 hereof, and each Company
shall, and shall cause each of its Subsidiaries to, furnish Agent with a current
schedule containing the foregoing information on at least an annual basis and
more often if reasonably requested by Agent. Promptly after the request therefor
by Agent, each Company shall deliver to Agent any and all evidence of ownership,
if any, of any of its Equipment.
6.5. Payment of Charges.
All amounts chargeable to any Borrower under Section 6 hereof
shall be Obligations secured by all of the Collateral, shall be payable on
demand and shall bear interest from the date such advance was made until paid in
full at the rate applicable to Base Rate Revolving Portions from time to time.
SECTION 7. REPRESENTATIONS AND WARRANTIES
7.1. General Representations and Warranties.
To induce Agent and each Lender to enter into this Agreement
and to make advances hereunder, each Borrower warrants, represents and covenants
to Agent and each Lender that:
7.1.1. Qualification. Each Borrower and each of its
Subsidiaries is a corporation, limited partnership or limited liability
company duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or organization. Each
Borrower, Wabash Canada and each of each Borrower's Domestic
Subsidiaries is duly qualified and is authorized to do business and is
in good standing as a foreign limited liability company, limited
partnership or corporation, as applicable, in (a) as of the date
hereof, each state or jurisdiction listed on Exhibit 7.1.1 hereto and
(b) all states and jurisdictions in which the failure of such Borrower
or any of its Subsidiaries to be so qualified could reasonably be
expected to have a Material Adverse Effect.
-38-
7.1.2. Power and Authority. Each Borrower and each of its
Subsidiaries is duly authorized and empowered to enter into, execute,
deliver and perform this Agreement and each of the other Loan Documents
to which it is a party. The execution, delivery and performance of this
Agreement and each of the other Loan Documents have been duly
authorized by all necessary corporate, partnership or other relevant
action and do not and will not (i) require any consent or approval of
the shareholders, partners or members of such Borrower or any of the
shareholders, partners or members, as the case may be, of any
Subsidiary of such Borrower; (ii) contravene such Borrower's or any of
its Subsidiaries' charter, articles or certificate of incorporation,
partnership agreement, certificate of formation, by-laws, limited
liability agreement, operating agreement or other organizational
documents (as the case may be); (iii) violate, or cause such Borrower
or any of its Subsidiaries to be in default under, any provision of any
law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award in effect having applicability to such Borrower
or any of its Subsidiaries, the violation of which could reasonably be
expected to have a Material Adverse Effect; (iv) result in a breach of
or constitute a default under any indenture or loan or credit agreement
or any other agreement, lease or instrument to which such Borrower or
any of its Subsidiaries is a party or by which it or its Properties may
be bound or affected, the breach of or default under which could
reasonably be expected to have a Material Adverse Effect; or (v) result
in, or require, the creation or imposition of any Lien (other than
Permitted Liens) upon or with respect to any of the Properties now
owned or hereafter acquired by such Borrower or any of its
Subsidiaries.
7.1.3. Legally Enforceable Agreement. This Agreement is, and
each of the other Loan Documents when delivered under this Agreement
will be, a legal, valid and binding obligation of each Borrower and
each of its Subsidiaries party thereto, enforceable against it in
accordance with its respective terms.
7.1.4. Capital Structure. Exhibit 7.1.4 hereto states, as of
the date hereof, (i) the correct name of each of the Subsidiaries of
each Borrower, its jurisdiction of incorporation or organization and
the percentage of its Voting Stock owned by such Borrower, (ii) the
name of each Borrower's and each of its Subsidiaries' corporate or
joint venture relationships and the nature of the relationship, (iii)
the number, nature and holder of all outstanding Securities of each
Borrower other than Wabash and the holder of Securities of each
Subsidiary of such Borrower and (iv) the number of authorized, issued
and treasury Securities of each Borrower other than Wabash. Each
Borrower has good title to all of the Securities it purports to own of
each of such Subsidiaries, free and clear in each case of any Lien
other than Permitted Liens. All such Securities have been duly issued
and are fully paid and non-assessable. Except as set forth on Exhibit
7.1.4, as of the date hereof, there are no outstanding options to
purchase, or any rights or warrants to subscribe for, or any
commitments or agreements to issue or sell any Securities or
obligations convertible into, or any powers of attorney relating to any
Securities of any Borrower or any of its Subsidiaries. Except as set
forth on Exhibit 7.1.4, as of the date hereof, there are no
-39-
outstanding agreements or instruments binding upon any of any
Borrower's or any of its Subsidiaries' partners, members or
shareholders, as the case may be, relating to the ownership of its
Securities.
7.1.5. Names; Organization. As of the date hereof, neither
any Borrower nor any of its Subsidiaries has been known as or has used
any legal, fictitious or trade names except those listed on Exhibit
7.1.5 hereto. Except as set forth on Exhibit 7.1.5, as of the date
hereof neither any Borrower nor any of its Subsidiaries has been the
surviving entity of a merger or consolidation or has acquired all or
substantially all of the assets of any Person. As of the date hereof,
each Borrower's and each of its Subsidiaries' state(s) of incorporation
or organization, Type of Organization and Organizational I.D. Number is
set forth on Exhibit 7.1.5. As of the date hereof, the exact legal name
of each Borrower and each of its Subsidiaries is set forth on Exhibit
7.1.5.
7.1.6. Business Locations; Agent for Process. Each
Borrower's and each of its Subsidiary's chief executive office,
location of books and records and other places of business are as
listed on Exhibit 6.1.1 hereto, as updated from time to time by
Borrowers in accordance with the provisions of subsection 6.1.1. During
the preceding one-year period, neither any Borrower nor any of its
Subsidiaries has had an office, place of business or agent for service
of process, other than as listed on Exhibit 6.1.1. All tangible
Collateral is and will at all times be kept by a Borrower and its
Subsidiaries in accordance with subsection 6.1.1 or subsection 6.3.2.
Except as shown on Exhibit 6.1.1 and Exhibit 6.3.2, as of the date
hereof, no Inventory is stored with a bailee, distributor, warehouseman
or similar party, nor is any Inventory consigned to any Person.
7.1.7. Title to Properties; Priority of Liens. Each Borrower
and each of its Subsidiaries has good, indefeasible and marketable
title to and fee simple ownership of, or valid and subsisting leasehold
interests in, all of its real Property, and good title to all of the
Collateral and all of its other Property, in each case, free and clear
of all Liens except Permitted Liens. Each Borrower and each of its
Subsidiaries has paid or discharged all lawful claims which, if unpaid,
might become a Lien against any of such Borrower's or such Subsidiary's
Properties that is not a Permitted Lien. The Liens granted to Agent
under Section 5 hereof are first priority Liens, subject only to
Permitted Liens.
7.1.8. Accounts. Agent may rely, in determining which
Accounts are Eligible Accounts, on all statements and representations
made by each Company with respect to any Account or Accounts. With
respect to each of each Company's Eligible Accounts, unless otherwise
disclosed to Agent in writing:
(i) it is genuine and in all respects what it
purports to be, and it is not evidenced by a judgment;
-40-
(ii) it arises out of a completed, bona fide sale
and delivery of goods or rendition of services by such
Company, in the ordinary course of its business and in
accordance with the terms and conditions of all purchase
orders, contracts or other documents relating thereto and
forming a part of the contract between such Company and the
Account Debtor;
(iii) it is for a liquidated amount maturing as
stated in the duplicate invoice covering such sale or
rendition of services, a copy of which has been furnished or
is available to Agent;
(iv) there are no facts, events or occurrences
which in any way impair the validity or enforceability of any
Accounts or tend to reduce the amount payable thereunder from
the face amount of the invoice and statements delivered or
made available to Agent with respect thereto;
(v) to the best of such Company's knowledge, the
Account Debtor thereunder (1) had the capacity to contract at
the time any contract or other document giving rise to the
Account was executed and (2) such Account Debtor is Solvent;
and
(vi) to the best of such Company's knowledge,
there are no proceedings or actions which are threatened or
pending against the Account Debtor thereunder which might
result in any material adverse change in such Account Debtor's
financial condition or the collectibility of such Account.
7.1.9. Equipment. The Equipment of each Borrower and each of
its Subsidiaries is maintained pursuant to customary industry standards
established by Borrowers prior to the Closing Date, and all necessary
replacements of and repairs thereto shall be made so that the operating
efficiency thereof shall be maintained and preserved, reasonable wear
and tear excepted. Neither any Borrower nor any of its Subsidiaries
will permit any Equipment to become affixed to any real Property leased
to any Borrower or any of its Subsidiaries so that an interest arises
therein under the real estate laws of the applicable jurisdiction
unless the landlord of such real Property has executed a landlord
waiver or leasehold mortgage in favor of and in form reasonably
acceptable to Agent, and no Borrower will permit any of the Equipment
of any Borrower or any of its Subsidiaries to become an accession to
any personal Property other than Equipment that is subject to first
priority (except for Permitted Liens) Liens in favor of Agent.
7.1.10. Financial Statements; Fiscal Year. The Consolidated
balance sheets of Wabash and its Subsidiaries (including the accounts
of all Subsidiaries of Wabash and their respective Subsidiaries for the
respective periods during which a Subsidiary relationship existed) as
of December 31, 2002, and the related statements of income, changes in
shareholder's equity, and changes in financial position for the period
ended on such date delivered to Agent and Lenders, have been prepared
in accordance with GAAP, and present fairly in all material respects
the financial positions of Wabash
-41-
and such Persons, taken as a whole, at such date and the results of
Wabash's and such Persons' operations, taken as a whole, for such
period. As of the date hereof, since June 30, 2003, there has been no
material adverse change in the financial position of Wabash and such
other Persons, taken as a whole, as reflected in the balance sheets as
of such date delivered to Agent and Lenders. For purposes of such
representation, the charges described on Exhibit 7.1.10 hereto shall
not constitute material adverse changes. As of the date hereof, the
fiscal year of Wabash and each of its Subsidiaries ends on December 31
of each year.
7.1.11. Full Disclosure. The financial statements referred to
in subsection 7.1.10 hereof do not, nor does this Agreement or any
other written statement of any Borrower to Agent or any Lender contain
any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein or herein not
misleading. There is no fact which any Borrower has failed to disclose
to Agent or any Lender in writing which could reasonably be expected to
have a Material Adverse Effect.
7.1.12. Solvent Financial Condition. After giving effect to
the initial Loans to be made and the initial Letters of Credit and LC
Guaranties to be issued hereunder, and the consummation of the other
transactions contemplated hereby, each of Wabash, each other Borrower
and each of their respective Subsidiaries will be Solvent.
7.1.13. Surety Obligations. Except as set forth on Exhibit
7.1.13, as of the date hereof, neither any Borrower nor any of its
Subsidiaries is obligated as surety or indemnitor under any surety or
similar bond or other contract or has issued or entered into any
agreement to assure payment, performance or completion of performance
of any undertaking or obligation of any Person.
7.1.14. Taxes. The federal tax identification number of each
Borrower and each of its Subsidiaries is shown on Exhibit 7.1.14
hereto, as updated from time to time by notice to Agent. Each Borrower
and each of its Subsidiaries has filed all applicable federal, state
and local tax returns and other reports relating to taxes it is
required by law to file, and has paid, or made provision for the
payment of, all taxes, assessments, fees, levies and other governmental
charges upon it, its income and Properties as and when such taxes,
assessments, fees, levies and charges are due and payable, unless and
to the extent any thereof are being actively contested in good faith
and by appropriate proceedings, each Borrower and each of its
Subsidiaries maintains reasonable reserves on its books therefor, no
Lien has arisen to secure such amounts and no Collateral has become
subject to forfeiture or loss as a result of such contest. The
provision for taxes on the books of each Borrower and its Subsidiaries
is adequate for all years not closed by applicable statutes, and for
the current fiscal year.
7.1.15. Brokers. Except as shown on Exhibit 7.1.15 hereto,
there are no claims for brokerage commissions, finder's fees or
investment banking fees payable
-42-
by any Borrower or any of its Subsidiaries in connection with the
transactions contemplated by this Agreement.
7.1.16. Patents, Trademarks, Copyrights and Licenses. Each
Borrower and each of its Subsidiaries owns, possesses or licenses or
has the right to use all the patents, trademarks, service marks, trade
names, copyrights, licenses and other Intellectual Property necessary
for the present and planned future conduct of its business without any
known conflict with the rights of others, except for such conflicts as
could not reasonably be expected to have a Material Adverse Effect. All
such patents, trademarks, service marks, tradenames, copyrights,
licenses, and other similar rights as of the date hereof are listed on
Exhibit 7.1.16 hereto, as updated from time to time by notice to Agent.
As of the date hereof, no claim has been asserted to any Borrower or
any of its Subsidiaries which is currently pending that their use of
their Intellectual Property or the conduct of their business does or
may infringe upon the Intellectual Property rights of any third party.
To the knowledge of each Borrower and except as set forth on Exhibit
7.1.16 hereto, as of the date hereof, no Person is engaging in any
activity that infringes in any material respect upon any Borrower's or
any of its Subsidiaries material Intellectual Property. Except as set
forth on Exhibit 7.1.16, each Borrower's and each of its Subsidiaries
(i) material trademarks, service marks, and copyrights are registered
with the U.S. Patent and Trademark Office or in the U.S. Copyright
Office, as applicable, or similarly registered in Canada and (ii)
material license agreements and similar arrangements relating to its
Inventory (1) permits, and does not restrict, the assignment by any
Borrower or any of its Subsidiaries to Agent, or any other Person
designated by Agent, of all of such Borrower's or such Subsidiary's, as
applicable, rights, title and interest pertaining to such license
agreement or such similar arrangement and (2) would permit the
continued use by such Borrower or such Subsidiary, or Agent or its
assignee, of such license agreement or such similar arrangement and the
right to sell Inventory subject to such license agreement for a period
of no less than 6 months after a default or breach of such agreement or
arrangement. The consummation and performance of the transactions and
actions contemplated by this Agreement and the other Loan Documents,
including without limitation, the exercise by Agent of any of its
rights or remedies under Section 10, will not result in the termination
or impairment of any of any Borrower's or any of its Subsidiaries
ownership or rights relating to its Intellectual Property, except for
such Intellectual Property rights the loss or impairment of which could
not reasonably be expected to have a Material Adverse Effect. Except as
listed on Exhibit 7.1.16 and except as could not reasonably be expected
to have a Material Adverse Effect, (i) neither any Borrower nor any of
its Subsidiaries is in breach of, or default under, any term of any
license or sublicense with respect to any of its Intellectual Property
and (ii) to the knowledge of each Borrower, no other party to such
license or sublicense is in breach thereof or default thereunder, and
such license is valid and enforceable.
7.1.17. Governmental Consents. Each Borrower and each of its
Subsidiaries has, and is in good standing with respect to, all
governmental consents, approvals,
-43-
licenses, authorizations, permits, certificates, inspections and
franchises necessary to continue to conduct its business as heretofore
or proposed to be conducted by it and to own or lease and operate its
Properties as now owned or leased by it, except where the failure to
obtain, possess or so maintain such rights could not reasonably be
expected to have a Material Adverse Effect.
7.1.18. Compliance with Laws. Each Borrower and each of its
Subsidiaries has duly complied, and its Properties, business operations
and leaseholds are in compliance with, the provisions of all federal,
state and local laws, rules and regulations applicable to such Borrower
or such Subsidiary (including without limitation Environmental Laws),
as applicable, its Properties or the conduct of its business, except
for such non-compliance as could not reasonably be expected to have a
Material Adverse Effect, and there have been no citations, notices or
orders of noncompliance issued to any Borrower or any of its
Subsidiaries under any such law, rule or regulation, except where such
noncompliance could not reasonably be expected to have a Material
Adverse Effect. Each Borrower and each of its Subsidiaries has
established and maintains an adequate monitoring system to insure that
it remains in compliance in all material respects with all federal,
state and local rules, laws and regulations applicable to it. No
Inventory has been produced in violation of the Fair Labor Standards
Act (29 U.S.C. Section 201 et seq.), as amended.
7.1.19. Restrictions. Neither any Borrower nor any of its
Subsidiaries is a party or subject to any contract or agreement which
restricts its right or ability to incur Indebtedness, other than as set
forth on Exhibit 7.1.19 hereto, none of which prohibit the execution of
or compliance with this Agreement or the other Loan Documents by any
Borrower or any of its Subsidiaries, as applicable.
7.1.20. Litigation. Except as set forth on Exhibit 7.1.20
hereto, there are no actions, suits, proceedings or investigations
pending, or to the knowledge of any Borrower, threatened, against or
affecting any Borrower or any of its Subsidiaries, or the business,
operations, Properties, prospects, profits or condition of any Borrower
or any of its Subsidiaries which, singly or in the aggregate, could
reasonably be expected to have a Material Adverse Effect. Neither any
Borrower nor any of its Subsidiaries is in default with respect to any
order, writ, injunction, judgment, decree or rule of any court,
governmental authority or arbitration board or tribunal, which, singly
or in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
7.1.21. No Defaults. No event has occurred and no condition
exists which would, upon or after the execution and delivery of this
Agreement or any Borrower's performance hereunder, constitute a Default
or an Event of Default. Neither any Borrower nor any of its
Subsidiaries is in default in (and no event has occurred and no
condition exists which constitutes, or which the passage of time or the
giving of notice or both would constitute, a default in) the payment of
any Indebtedness to any Person for Money Borrowed in excess of
$1,000,000.
-44-
7.1.22. Leases. Exhibit 7.1.22 hereto is a complete listing
as of the date hereof of all capitalized and operating personal
Property leases with aggregate payments in excess of $500,000 per lease
in any calendar year of each Borrower and its Subsidiaries and all real
Property leases of each Borrower and its Subsidiaries. Each Borrower
and each of its Subsidiaries is in full compliance with all of the
terms of each of its respective capitalized and operating leases,
except where the failure to so comply could not reasonably be expected
to have a Material Adverse Effect.
7.1.23. Pension Plans. As of the date hereof, except as
disclosed on Exhibit 7.1.23 hereto (as updated from time to time by
notice to Agent), neither any Borrower nor any of its Subsidiaries has
any Plan, or any other employee benefit plan established under the laws
of any jurisdiction, including without limitation the laws of Canada.
Each Borrower and each of its Subsidiaries is in compliance with the
requirements of ERISA and the regulations promulgated thereunder with
respect to each Plan, except where the failure to so comply could not
reasonably be expected to have a Material Adverse Effect. No fact or
situation that could reasonably be expected to result in a material
adverse change in the financial condition of each Borrower and its
Subsidiaries exists in connection with any Plan. Neither any Borrower
nor any of its Subsidiaries has any withdrawal liability in connection
with a Multiemployer Plan.
7.1.24. Trade Relations. There exists no actual or, to each
Borrower's knowledge, threatened termination, cancellation or
limitation of, or any modification or change in, the business
relationship between any Borrower or any of its Subsidiaries and any
customer or any group of customers whose purchases individually or in
the aggregate are material to the business of such Borrower and its
Subsidiaries, or with any material supplier, except in each case, where
the same could not reasonably be expected to have a Material Adverse
Effect, and there exists no present condition or state of facts or
circumstances which would prevent any Borrower or any of its
Subsidiaries from conducting such business after the consummation of
the transactions contemplated by this Agreement in substantially the
same manner in which it has heretofore been conducted.
7.1.25. Labor Relations. Except as described on Exhibit
7.1.25 hereto, as of the date hereof, neither any Borrower nor any of
its Subsidiaries is a party to any collective bargaining agreement.
There are no material grievances, disputes or controversies with any
union or any other organization of any Borrower's or any of its
Subsidiaries employees, or threats of strikes, work stoppages or any
asserted pending demands for collective bargaining by any union or
organization, except those that could not reasonably be expected to
have a Material Adverse Effect.
7.1.26. Business Activity. No Inactive Subsidiary engages in
any business activity or has any material assets, or has or incurs any
Indebtedness, other than the performance of its obligations under
intercompany agreements and agreements with its shareholders that have
been disclosed to Agent in writing.
-45-
7.1.27. Apex Sale. The Apex Sale has been consummated
pursuant to the terms of the Apex Sale Documents and in compliance with
all applicable laws, with gross cash proceeds to Borrowers of not less
than $55,000,000, prior to making any purchase price adjustment
calculations based on changes to working capital, as provided in the
Apex Sale Documents, all of which were used to repay existing
Indebtedness for Money Borrowed and transaction fees and expenses.
7.1.28. Environmental Protection. No event or condition has
occurred or is occurring with respect to any Borrower or any of its
Subsidiaries relating to any Environmental Law, any Hazardous
Materials, or any investigation, notice, notice of violation, claim,
action, suit, proceeding, demand, abatement order or other order or
directive by any governmental authority or any other person relating to
any Environmental Law or Hazardous Materials, which individually or in
the aggregate has had or could reasonably be expected to have a
Material Adverse Effect. Compliance with all requirements under current
Environmental Laws or pending federal and/or state environmental laws
and regulations, will not, individually or in the aggregate, have a
reasonable possibility of giving rise to a Material Adverse Effect.
7.1.29. Government Regulation. Neither any Borrower nor any
of its Subsidiaries is an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment
Company Act of 1940. Neither any Borrower nor any of its Subsidiaries
is subject to regulation under the Public Utility Holding Company Act
of 1935, the Federal Power Act, or any other federal or state statute
that restricts or limits its ability to incur Indebtedness or to
perform its obligations hereunder. The making of the Loans by Lenders
to Borrowers, the incurrence of the LC Obligations on behalf of
Borrowers, the application of the proceeds thereof and payment thereof
will not violate any provision of any such statute or any rule,
regulation or order issued by the Securities and Exchange Commission.
7.1.30. Margin Regulations. Neither any Borrower 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" and "margin stock" as such terms are defined
in Regulation U of the Federal Reserve Board as now and from time to
time hereafter in effect (such securities being referred to herein as
"Margin Stock"). Neither any Borrower nor any of its Subsidiaries owns
any Margin Stock, and none of the proceeds of the Loans or other
extensions of credit under this Agreement will be used, directly or
indirectly, for the purpose of purchasing or carrying any Margin Stock,
for the purpose of reducing or retiring any Indebtedness that was
originally incurred to purchase or carry any Margin Stock or for any
other purpose that might cause any of the Loans or other extensions of
credit under this Agreement to be considered a "purpose credit" within
the meaning of Regulations T, U or X of the Federal Reserve Board.
Neither any Borrower nor any of its Subsidiaries will take or permit to
be taken any action that might cause any Loan Document to violate any
regulation of the Federal Reserve Board.
-46-
7.1.31. Wind Down Subsidiaries. As of the Closing Date,
Borrowers are in the process of winding down the business and
operations of each of the Wind Down Subsidiaries.
7.1.32. Vehicles. Each Borrower or Guarantor that at any time
holds title to any used vehicles returned to it on a trade-in basis or
otherwise is primarily in the business of selling new and used
vehicles.
7.1.33. Joint Venture Investments. Each of the joint venture
investments of each Borrower and its Subsidiaries on the Closing Date
are listed on Exhibit 7.1.33 hereto. All of such joint ventures are
being wound down. None of such joint ventures has any material assets,
operations or liabilities, contingent or otherwise. Neither any
Borrower nor any Subsidiary has any ongoing funding obligations
(contingent or otherwise) in respect of any such joint venture.
7.2. Continuous Nature of Representations and Warranties.
Each representation and warranty contained in this Agreement
and the other Loan Documents shall be deemed to have been remade at the time of
each request for a Loan, Letter of Credit or LC Guaranty hereunder and at the
time that any Loan is deemed to have been made under subsection 3.1.1. Each such
request for a Loan, Letter of Credit or LC Guaranty (and the making of any Loan
deemed to have been made under subsection 3.1.1) shall constitute a
representation by Borrowers that such representations and warranties remain
accurate, complete and not misleading at such time, except to the extent that
such representations and warranties relate solely to an earlier date and except
for changes in the nature of a Borrower's or one of such Borrower's Subsidiary's
business or operations that would render the information in any exhibit attached
hereto or to any other Loan Document either inaccurate, incomplete or
misleading, so long as Majority Lenders have consented to such changes or such
changes are expressly permitted by this Agreement.
7.3. Survival of Representations and Warranties.
All representations and warranties of each Borrower contained
in this Agreement or any of the other Loan Documents shall survive the
execution, delivery and acceptance thereof by Agent and each Lender and the
parties thereto and the closing of the transactions described therein or related
thereto.
SECTION 8. COVENANTS AND CONTINUING AGREEMENTS
8.1. Affirmative Covenants.
During the Term, and thereafter for so long as there are any
Obligations outstanding, Borrowers jointly and severally covenant that they
shall:
8.1.1. Visits and Inspections; Lender Meeting. Permit (i)
representatives of Agent (who may be accompanied by representatives of
each Lender), and during the continuation of any Default or Event of
Default any Lender, from time to time, as
-47-
often as may be reasonably requested, but only during normal business
hours, to visit and inspect the Properties of each Borrower and each of
its Subsidiaries, inspect, audit and make extracts from its books and
records, and discuss with its officers, its employees and its
independent accountants, each Borrower's and each of its Subsidiaries'
business, assets, liabilities, financial condition, business prospects
and results of operations and (ii) appraisers engaged pursuant to
Section 2.10 (whether or not personnel of Agent), from time to time, as
often as may be reasonably requested, but only during normal business
hours, to visit and inspect the Properties of each Borrower and each of
its Subsidiaries, for the purpose of completing appraisals pursuant to
Section 2.10. Agent, if no Default or Event of Default then exists,
shall give the applicable Borrower reasonable prior notice of any such
inspection or audit. Without limiting the foregoing, Borrowers will
participate and will cause their key management personnel to
participate in a meeting with Agent and Lenders once during each year
(except that during the continuation of an Event of Default such
meetings may be held more frequently as requested by Agent or Majority
Lenders), which meeting(s) shall be held at such times and such places
as may be reasonably requested by Agent.
8.1.2. Notices. Promptly notify Agent in writing of the
occurrence of any event or the existence of any fact which renders any
representation or warranty in this Agreement or any of the other Loan
Documents inaccurate, incomplete or misleading in any material respect
as of the date made or remade. In addition, each Borrower agrees to
provide Agent with prompt written notice of any change in the
information disclosed in any Exhibit hereto, in each case after giving
effect to the materiality limits and Material Adverse Effect
qualifications contained therein.
8.1.3. Financial Statements. Keep, and cause each of its
Subsidiaries, to keep, adequate records and books of account with
respect to its business activities in which proper entries are made in
accordance with customary accounting practices reflecting all its
financial transactions; and cause to be prepared and furnished to Agent
and each Lender, the following, all to be prepared in accordance with
GAAP applied on a consistent basis, unless Wabash's certified public
accountants concur in any change therein and such change is disclosed
to Agent and is consistent with GAAP:
(i) not later than 90 days after the close of
each fiscal year of Wabash, audited financial statements of
Wabash and its Subsidiaries as of the end of such year, on a
Consolidated basis, certified by a firm of independent
certified public accountants of recognized standing selected
by Wabash but acceptable to Agent, prepared in accordance with
GAAP, fairly presenting in all material respects the financial
position and results of operations of Wabash and its
Subsidiaries for such fiscal year and presented without
qualification (except for a qualification for a change in
accounting principles with which the accountant concurs) and
without any going concern qualification, exception or
assumption or any qualification, exception or assumption
relating to the scope
-48-
of the audit; and, within a reasonable time thereafter a copy
of any management letter issued in connection therewith;
(ii) not later than 30 days after the end of each
month hereafter (45 days after the end of each month ending a
fiscal quarter), including the last month of each fiscal year
of Wabash, unaudited interim financial statements of Wabash
and its Subsidiaries as of the end of such month and of the
portion of the fiscal year then elapsed, on a Consolidated
basis, certified by the Treasurer of Wabash as prepared in
accordance with GAAP and fairly presenting in all material
respects the financial position and results of operations of
Wabash and its Subsidiaries for such month and period subject
only to changes from audit and year-end adjustments and except
that such statements need not contain notes;
(iii) together with each delivery of financial
statements pursuant to clauses (i) and (ii) of this subsection
8.1.3, a management report (1) setting forth in comparative
form the corresponding figures for the corresponding periods
of the previous fiscal year and the corresponding figures from
the most recent Projections for the current fiscal year
delivered pursuant to subsection 8.1.7 and (2) identifying the
reasons for any significant variations. The information above
shall be presented in reasonable detail and shall be certified
by the Treasurer of Wabash to the effect that such information
fairly presents in all material respects the results of
operation and financial condition of Wabash and its
Subsidiaries as at the dates and for the periods indicated;
(iv) upon request by Agent, promptly after the
sending or filing thereof, as the case may be, copies of any
proxy statements, financial statements or reports which
Wabash, any other Borrower or any of any Borrower's
Subsidiaries has made available to its Securities holders and
copies of any regular, periodic and special reports or
registration statements which Wabash, any other Borrower or
any Subsidiary of any Borrower files with the Securities and
Exchange Commission or any governmental authority which may be
substituted therefor, or any national securities exchange;
(v) upon request of Agent, copies of any annual
report to be filed with ERISA in connection with each Plan;
and
(vi) such other data and information (financial
and otherwise) as Agent or any Lender, from time to time, may
reasonably request, bearing upon or related to the Collateral
or Wabash's, any other Borrower's or any of any Borrower's
Subsidiaries' financial condition or results of operations.
Concurrently with the delivery of the financial
statements described in clause (i) of this subsection 8.1.3, Borrowers
shall forward to Agent a copy of the accountants' letter to Wabash's
management that is prepared in connection with such financial
statements. Concurrently with the delivery of the financial statements
-49-
described in paragraph (i) and (ii) (but solely for the last month of
each fiscal quarter of Borrowers) of this subsection 8.1.3, or more
frequently if reasonably requested by Agent, Borrowers shall cause to
be prepared and furnished to Agent a Compliance Certificate in the form
of Exhibit 8.1.3 hereto executed by the Treasurer of Wabash (a
"Compliance Certificate").
8.1.4. Borrowing Base Certificates. On or before the 20th
day of each month from and after the date hereof, Borrowers shall
deliver to Agent, in form acceptable to Agent, a Borrowing Base
Certificate as of the last day of the immediately preceding month, with
such supporting materials as Agent shall reasonably request. If (a)
Borrowers deem it advisable, (b) Agent so requests in its reasonable
discretion or (c) Availability is less than $15,000,000, Borrowers
shall execute and deliver to Agent Borrowing Base Certificates updating
on a weekly basis Eligible Accounts information, Eligible Inventory
information relating to finished goods and work-in process, Eligible
Trailer Inventory information and Eligible ▇▇▇▇ and Hold Inventory
information. All Borrowing Base Certificates shall reflect all
information for each Borrower on a Consolidated and consolidating
basis.
8.1.5. Landlord, Processor and Storage Agreements. Provide
Agent with copies of all agreements between any Borrower or any of its
Subsidiaries and any landlord, processor, distributor, warehouseman or
consignee which owns any premises at which any Collateral may, from
time to time, be kept.
8.1.6. Guarantor Financial Statements. Deliver or cause to
be delivered to Agent financial statements, if any, for each Guarantor
(to the extent not consolidated with the financial statements delivered
to Agent under subsection 8.1.3) in form and substance satisfactory to
Agent at such intervals and covering such time periods as Agent may
request.
8.1.7. Projections. No later than the last day of each
fiscal year of Borrowers, deliver to Agent and each Lender Projections
of Wabash and its Subsidiaries for the forthcoming fiscal year, on a
month-by-month basis and for the following 2 years, on a year-by-year
basis.
8.1.8. Subsidiaries. Cause each of its Domestic Subsidiaries
(other than Inactive Subsidiaries), whether now or hereafter in
existence, promptly upon Agent's request therefor, to execute and
deliver to Agent a Guaranty Agreement, in form and substance reasonably
acceptable to Agent and, in the case of each such Subsidiary, a
security agreement, in form and substance reasonably acceptable to
Agent, pursuant to which such Subsidiary grants to Agent a first
priority Lien (subject only to Permitted Liens) on all of its
Properties of the types described in Section 5. Additionally, each
Borrower and each applicable Subsidiary shall execute and deliver to
Agent a Pledge Agreement, in form and substance reasonably acceptable
to Agent, pursuant to which such Person grants to Agent a first
priority Lien (subject only to Permitted Liens) with respect to all of
the issued and outstanding Securities of each Subsidiary of such
Person, other than foreign Subsidiaries that are Inactive
-50-
Subsidiaries or Wind Down Subsidiaries. In connection with the
foregoing documentation, Borrowers shall also cause Agent to be
provided with such legal opinions, certificates and corporate authority
materials that Agent may reasonably request, in each case in form and
substance reasonably acceptable to Agent. Notwithstanding the
foregoing, Cloud Oak Flooring Company, Inc. shall not be required to
deliver such a Guaranty Agreement or security agreement until the time
specified in subsection 8.1.16.
8.1.9. Deposit and Brokerage Accounts. For each deposit
account or brokerage account that any Borrower at any time opens or
maintains, such Borrower shall, at Agent's request and option, pursuant
to an agreement in form and substance reasonably satisfactory to Agent,
cause the depository bank or securities intermediary, as applicable, to
agree to comply at any time with instructions only from Agent to such
depository bank or securities intermediary, as applicable, and not from
a Borrower, directing the disposition of funds from time to time
credited to such deposit or brokerage account, without further consent
of such Borrower.
8.1.10. Intercompany Loans. Upon request by Agent from time
to time, promptly provide Agent with written statements, with
reasonable detail, of the current balances of the Intercompany Loans.
At all times, cause the Intercompany Loans to be evidenced by revolving
promissory notes, in form and substance reasonably satisfactory to
Agent, which notes are assigned to Agent as security for the
Obligations.
8.1.11. Updated Information. Promptly notify Agent in writing
of (a) each state or jurisdiction in which any Borrower or any
Subsidiary qualifies to do business after the date hereof, (b) the use
by any Borrower or any Subsidiary of a legal, fictitious or trade name
not listed on Exhibit 7.1.5 hereto, (c) any change after the date
hereof in the tax identification number of any Borrower or any Domestic
Subsidiary, (d) the ownership by any Borrower or any Subsidiary of any
U.S. or Canadian registered patent, registered trademark, registered
service ▇▇▇▇, registered tradename, copyright, license or other similar
rights not listed on Exhibit 7.1.16, (e) the assertion by any Person of
a claim against any Borrower or any Subsidiary that its use of its
Intellectual Property or the conduct of its business does or may
infringe upon the Intellectual Property rights of any third party, (f)
any change after the date hereof in the list of capitalized and
operating personal Property leases and real Property leases of any
Borrower or any Subsidiary listed on Exhibit 7.1.22 hereto and (g) any
change after the date hereof in the list of Plans listed on Exhibit
7.1.23 hereto.
8.1.12. Utilization of Bank. Maintain, and cause their
Subsidiaries to maintain, their primary lockbox collection account at
Bank.
8.1.13. Dissolution of Subsidiaries. Within 360 days after
the Closing Date, provide Agent with satisfactory evidence of the
dissolution of WNC Receivables LLC, a Delaware limited liability
company and WNC Receivables Management Corp., a Delaware corporation.
-51-
8.1.14. LCM Used Inventory Analysis. Not later than 30 days
after the end of each fiscal quarter hereafter, deliver to Agent and
each Lender a quarterly lower-of-cost-or-market analysis prepared by
Wabash with respect to its Trailer Inventory and Apex Trailer
Inventory, in the form currently used by Wabash and reasonably
acceptable to Agent, certified by the Treasurer of Wabash as containing
an accurate valuation of such Inventory.
8.1.15. Environmental Matters.
(i) Take all actions necessary or required by
Lenders in order to obtain the Phase II environmental site
assessments described in subsection 10.3.6;
(ii) Deliver to Agent, as soon as practicable
following receipt thereof: (i) copies of all notices, claims,
actions, suits, proceedings, orders, audits, investigations,
analyses, or written communications of any kind or character,
whether prepared by a Borrower or by independent consultants,
governmental authorities or any other Persons, with respect to
Environmental Laws or Hazardous Materials, which, individually
or in the aggregate, could reasonably be expected to result in
a Material Adverse Effect; and (ii) promptly upon the
occurrence thereof, written notice describing in reasonable
detail any detection of Hazardous Materials released at any
Property or detected in soil or groundwater at any Property,
the existence of which has a reasonable possibility,
individually or in the aggregate, of resulting in a Material
Adverse Effect; and
(iii) Promptly undertake any and all
investigations, remediation or other response actions
necessary to remove, remediate, clean up or ▇▇▇▇▇ any
Hazardous Materials as required by any governmental agency or
where failure to do so could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
Borrowers shall promptly take any and all actions necessary to
(i) cure any material violation of applicable Environmental
Laws by Borrowers and (ii) make an appropriate response to any
investigation, notice, notice of violation, claim, action,
suit, proceeding, demand, abatement order or other order or
directive by any governmental authority or any other person
relating to any Environmental Law or Hazardous Materials, in
each case where failure to do so could reasonably be expected
to have, individually or in the aggregate, a Material Adverse
Effect.
8.1.16. Cloud Debt; Subsidiary Guarantor. On May 1, 2004, (i)
pay, or cause to be paid, the Cloud Debt in full and (ii) cause Cloud
Oak Flooring Company, Inc. to comply in all respects with the
provisions of subsection 8.1.8 (other than the last sentence thereof).
-52-
8.2. Negative Covenants.
During the Term, and thereafter for so long as there are any
Obligations outstanding, Borrowers jointly and severally covenant that they
shall not:
8.2.1. Mergers; Consolidations; Dissolutions; Acquisitions;
Structural Changes. Merge or consolidate, or permit any of its
Subsidiaries to merge or consolidate, with any Person; not dissolve or
permit any of its Subsidiaries to dissolve or otherwise terminate
operations or existence; nor change its or any of its Subsidiaries'
state of incorporation or organization, Type of Organization or
Organizational I.D. Number; nor change its or any of its Subsidiaries'
legal name; nor acquire, nor permit any of its Subsidiaries to acquire,
all or any substantial part of the Properties of any Person, except
for:
(i) with notice to Agent, mergers of any
wholly-owned Subsidiary of a Borrower into such Borrower or
another wholly-owned Subsidiary of such Borrower; provided,
that (a) if a Borrower is a party to any such merger, such
Borrower shall be the survivor and (b) if a Guarantor (other
than a Borrower) is a party to any such merger, such Guarantor
shall be the survivor;
(ii) acquisitions of assets consisting of fixed
assets or real property that constitute Capital Expenditures
permitted under subsection 8.2.8;
(iii) with notice to Agent, dissolution or other
termination of existence of any Inactive Subsidiary, any Wind
Down Subsidiary, or any of Apex, Cloud Oak Flooring Company,
Inc., FTSI Distribution Company, L.P., Wabash National
Services, L.P., Wabash Technology Corporation and WTSI
Technology Corporation; and
(iv) Permitted Acquisitions.
8.2.2. Loans. Make, or permit any of its Subsidiaries to
make, any loans or other advances of money to any Person, other than
(i) for salary, travel advances, advances
against commissions and other similar advances to employees in
the ordinary course of business;
(ii) extensions of trade credit in the ordinary
course of business;
(iii) deposits with governmental entities, ADP for
payroll services or financial institutions permitted under
this Agreement;
(iv) prepaid expenses; and
(v) loans by a Borrower to another Borrower or a
Subsidiary of a Borrower that is a Subsidiary Guarantor and is
not an Inactive Subsidiary or a Wind Down Subsidiary
("Intercompany Loans").
-53-
8.2.3. Total Indebtedness. Create, incur, assume, or suffer
to exist, or permit any of its Subsidiaries to create, incur or suffer
to exist, any Indebtedness, except:
(i) Obligations owing to Agent or any Lender
under this Agreement or any of the other Loan Documents;
(ii) Indebtedness evidenced by the Convertible
Notes and the other Convertible Note Documents (each as in
effect as of the date hereof);
(iii) Indebtedness existing as of the date of this
Agreement and listed on Exhibit 8.2.3;
(iv) the Other Indebtedness;
(v) Permitted Purchase Money Indebtedness;
(vi) Subordinated Debt;
(vii) contingent liabilities arising out of
endorsements of checks and other negotiable instruments for
deposit or collection in the ordinary course of business;
(viii) guaranties of any Indebtedness permitted
under this subsection 8.2.3;
(ix) Indebtedness in respect of Intercompany
Loans;
(x) obligations to pay Rentals permitted by
subsection 8.2.18;
(xi) Derivative Obligations entered into in order
to hedge interest rate or currency risk and not for
speculative purposes;
(xii) to the extent not included above, trade
payables, accruals and accounts payable in the ordinary course
of business (in each case to the extent not overdue) not for
Money Borrowed; and
(xiii) Indebtedness not included in paragraphs (i)
through (xii) above which does not exceed at any time, in the
aggregate, $5,000,000.
8.2.4. Affiliate Transactions. Enter into, or be a party to,
or permit any of its Subsidiaries to enter into or be a party to, any
transaction with any Affiliate of any Borrower or any holder of any
Securities of any Borrower or any of its Subsidiaries, including
without limitation any management, consulting or similar fees, except:
(i) in the ordinary course of and pursuant to
the reasonable requirements of such Borrower's or such
Subsidiary's business and upon fair and reasonable terms which
are fully disclosed to Agent and are no less favorable to such
Borrower or such Subsidiary than would be obtained in a
-54-
comparable arms-length transaction with a Person not an
Affiliate or Security holder of such Borrower;
(ii) employment agreements and other incentive
compensation with management shareholders approved from time
to time by the board of directors of such Borrower and
employee arrangements and related incentive compensation
arrangements entered into with other full time employees of
such Borrower or such Subsidiary in the ordinary course of
business;
(iii) reasonable directors' fees and expenses
approved from time to time by the board of directors of such
Borrower;
(iv) with respect to Intercompany Loans; and
(v) as otherwise permitted under this Agreement.
8.2.5. Limitation on Liens. Create or suffer to exist, or
permit any of its Subsidiaries to create or suffer to exist, any Lien
upon any of its Property, income or profits, whether now owned or
hereafter acquired, except:
(i) Liens at any time granted in favor of Agent
for the benefit of Agent and Lenders;
(ii) Liens for taxes, assessments or governmental
charges (excluding any Lien imposed pursuant to any of the
provisions of ERISA) not yet due, or being contested in the
manner described in subsection 7.1.14 hereto, but only if in
Agent's judgment such Lien would not reasonably be expected to
adversely effect Agent's rights or the priority of Agent's
lien on any Collateral;
(iii) Liens arising in the ordinary course of the
business of such Borrower or any of its Subsidiaries by
operation of law or regulation, but only if payment in respect
of any such Lien is not at the time required and such Liens do
not, in the aggregate, materially detract from the value of
the Property of such Borrower or any of its Subsidiaries or
materially impair the use thereof in the operation of the
business of such Borrower or any of its Subsidiaries;
(iv) Purchase Money Liens securing Permitted
Purchase Money Indebtedness;
(v) such other Liens as appear on Exhibit 8.2.5
hereto;
(vi) Liens incurred or deposits made in the
ordinary course of business in connection with (1) worker's
compensation, social security, unemployment insurance and
other like laws or (2) sales contracts, leases, statutory
obligations, work in progress advances and other similar
obligations
-55-
not incurred in connection with the borrowing of money or the
payment of the deferred purchase price of property;
(vii) reservations, easements, covenants, zoning
and other land use regulations, title exceptions or
encumbrances granted in the ordinary course of business,
affecting real Property owned or leased by a Borrower or any
of its Subsidiaries; provided that such exceptions do not in
the aggregate materially interfere with the use of such
Property in the ordinary course of such Borrower's or such
Subsidiary's business;
(viii) judgment Liens that do not give rise to an
Event of Default under subsection 10.1.16;
(ix) Liens in favor of customs and revenues
authorities which secure payment of customs duties in
connection with the importation of Inventory;
(x) Liens on insurance policies and the proceeds
thereof securing the financing of the premiums with respect
thereto;
(xi) Liens consisting of rights of set-off of a
customary nature or banker's liens on amounts on deposit in
accounts of such Borrower or any of its Subsidiaries (other
than in a Dominion Account), whether arising by contract or
operation of law, incurred in the ordinary course of business;
and
(xii) Liens arising from the filing of UCC
financing statements for precautionary purposes relating
solely to operating leases under which such Borrower or any of
its Subsidiaries is a lessee.
8.2.6. Payments and Amendments of Certain Debt.
(i) make or permit any of its Subsidiaries to
make any payment of any part or all of the Indebtedness
evidenced by the Convertible Notes and the other Convertible
Note Documents (including, without limitation, any mandatory
or voluntary prepayment, purchase or redemption, including a
repurchase upon a "Change of Control" (as defined in the
Convertible Note Indenture as in effect on the date hereof)),
except regularly scheduled cash payments of interest pursuant
to the Convertible Note Documents (each as in effect as of the
date hereof) at a rate of 3.25% per annum and except for
conversion of the Convertible Notes to common stock Securities
of Wabash as provided in the Convertible Note Documents (as in
effect on the date hereof);
(ii) make or permit any of its Subsidiaries to
make any payment of all or any part of the Other Indebtedness
(including, without limitation, any mandatory or voluntary
prepayment, purchase or redemption), except (a) regularly
scheduled cash payments of principal and interest pursuant to
the Other Indebtedness Documents (each as in effect on the
date hereof) and (b) so long as no Default or Event of Default
is then in existence or would be caused
-56-
thereby, voluntary prepayments of the Other Indebtedness from
time to time so long as either (1) after giving effect to each
such prepayment, Availability is at least $50,000,000 or (2)
with respect to all Other Indebtedness other than the Breadner
Debt, such prepayment is made with the proceeds of the sale of
the Subject Equipment, plus an aggregate amount of up to
$5,000,000 of Revolving Credit Loans, and after giving effect
to each such prepayment, Availability is at least $15,000,000;
(iii) with respect to any Subordinated Debt, make
or permit any of its Subsidiaries to make any payment of any
part or all of any Subordinated Debt or take any other action
or omit to take any other action in respect of any
Subordinated Debt, except in accordance with any subordination
agreement relative thereto or the subordination provisions
thereof;
(iv) amend or modify any Convertible Note
Document, Other Indebtedness Document or any agreement,
instrument or document evidencing or relating to any other
Subordinated Debt, in each case to the extent that any such
amendment or modification would (a) increase the interest rate
on such Indebtedness or the principal amount of such
Indebtedness; (b) move forward the dates upon which any
payments of principal or interest on such Indebtedness are
due; (c) add any event of default or make more restrictive any
existing event of default with respect to such Indebtedness;
(d) add or make more restrictive any covenant with respect to
such Indebtedness; (e) move forward any redemption or
prepayment dates with respect to such Indebtedness or increase
any redemption or prepayment amounts; (f) change the
subordination provisions applicable to such Indebtedness; (g)
change or amend any other term if such change or amendment
would materially increase the obligations of the obligor or
confer additional material rights on the holder of such
Indebtedness in a manner adverse to any Borrower or Lenders;
or (h) require to be paid in cash any interest which may be
paid in kind instead of cash; or
(v) amend or modify any Apex Sale Document in
any material respect.
8.2.7. Distributions. Declare or make, or permit any of its
Subsidiaries to declare or make, any Distributions, except for:
(i) Distributions by any Wholly-Owned Subsidiary
of a Borrower to such Borrower;
(ii) Distributions paid solely in Securities of a
Borrower or any of its Subsidiaries;
(iii) Distributions by each Borrower in amounts
necessary to permit such Borrower to repurchase Securities of
such Borrower from employees of
-57-
such Borrower or any of its Subsidiaries upon the termination
of their employment, so long as no Default or Event of Default
exists at the time of or would be caused by the making of such
Distributions and the aggregate cash amount of all such
Distributions by all Borrowers, measured at the time when
made, does not exceed $2,500,000 in any fiscal year of
Borrowers;
(iv) so long as no Default or Event of Default
exists at the time of or would be caused by the making of such
Distributions, dividends by Wabash in respect of the Series B
Preferred Stock in the amount of $0.75 per share, (a) on
September 15, 2003, in the aggregate amount of $1,584,000, in
respect of dividends to be paid on such date and all other
accrued and unpaid dividends as of such date and (b) on each
December 15, March 15, June 15 and September 15 commencing on
December 15, 2003, in each case as provided in Wabash's
Certificate of Incorporation (as in effect on the date
hereof); and
(v) redemption by Wabash of all or a portion of
the Series B Preferred Stock so long as (a) no Default or
Event of Default exists at the time of or would be caused by
the making of such Distribution, (b) after giving effect to
such Distribution, Availability is at least $50,000,000, and
(c) the Leverage Ratio, determined as of the most recently
ended calendar quarter, for the 12 months then ended, after
giving pro forma effect to such Distribution, is 2.00:1.0 or
less.
In no event shall Wabash exercise any right or option on its part to
convert any or all of the Series B Preferred Stock (or any other
preferred stock of Wabash) into Indebtedness.
8.2.8. Capital Expenditures. Make Capital Expenditures
(including, without limitation, by way of capitalized leases) which, in
the aggregate, as to all Borrowers and all of Borrowers' Subsidiaries,
exceed (i) $10,000,000 during the fiscal year ending December 31, 2003,
(ii) $10,000,000 during the fiscal year ending December 31, 2004, or
(iii) $15,000,000 during any subsequent fiscal year, except that 50% of
the unused portion of the Capital Expenditure allowance for any fiscal
year may be carried over to the immediately succeeding fiscal year
only, to be used in such succeeding fiscal year after all of the
Capital Expenditure allowance for that year has been used.
8.2.9. Disposition of Assets. Sell, lease or otherwise
dispose of any of, or permit any of its Subsidiaries to sell, lease or
otherwise dispose of any of, its Properties, including any disposition
of Property as part of a sale and leaseback transaction, to or in favor
of any Person, except for:
(i) sales of Inventory in the ordinary course of
business;
(ii) transfers of Property to a Borrower by a
wholly-owned Subsidiary of such Borrower;
-58-
(iii) dispositions of investments described in
paragraphs (iv), (v), (vi) and (vii) of the definition of the
term "Restricted Investments";
(iv) sales, leases and other dispositions of
Subject Equipment;
(v) sales, leases and other dispositions of
Property with a fair market value of up to $10,000,000 in the
aggregate in any one calendar year, in each case so long as
(a) no Default or Event of Default is in existence or would
result therefrom, (b) the consideration received in respect
thereof is all cash, and (c) in the case of individual items
of Property with a book value in excess of $250,000, the
consideration received in respect thereof is at least equal to
the portion of the Loans predicated on the value of such
Property;
(vi) so long as no Default or Event of Default
exists, sales, leases or other dispositions of Equipment or
other fixed assets that are substantially worn, damaged or
obsolete and that are replaced with Equipment or other fixed
assets of like kind, function and value; provided, that (i)
until so replaced, the proceeds of each such disposition shall
be applied against the Revolving Credit Loans (but shall not
permanently reduce the Revolving Loan Commitments), (ii) a
Rebuild Reserve shall be established in the amount thereof,
until such time as such amounts are to be used by Borrowers to
replace the Property sold and (iii) the applicable Borrower or
Subsidiary shall commit to acquire within 180 days after such
disposition and shall actually acquire replacement Property,
free and clear of Liens (other than Permitted Liens that are
not Purchase Money Liens), within 360 days of such
disposition; and provided further, that any such amount that
it is not timely used to commit to purchase or to purchase
replacement Property as provided herein shall be released from
the Rebuild Reserve and applied to the Obligations as provided
in the second sentence of subsection 3.3.1;
(vii) dissolutions permitted under subsection
8.2.1;
(viii) other dispositions expressly authorized by
this Agreement; and
(ix) sales of any finance contracts assets,
including the National Trailer Funding portfolio finance
contracts and the former Apex Finance portfolio contracts.
8.2.10. Securities of Subsidiaries. Permit any of its
Subsidiaries to issue any additional Securities except to such Borrower
and except for director's qualifying Securities.
8.2.11. ▇▇▇▇-and-Hold Sales, Etc. Make, or permit any of its
Subsidiaries to make, a sale to any customer on a guaranteed sale, sale
and return, sale on approval, repurchase or return or consignment
basis; or make, or permit any of its Subsidiaries
-59-
to make, a sale to any customer on a ▇▇▇▇ and hold basis, expect in a
manner consistent with such Person's ordinary business practices as
conducted prior to the Closing Date.
8.2.12. Restricted Investment. Make or have, or permit any of
its Subsidiaries of such Borrower to make or have, any Restricted
Investment.
8.2.13. Subsidiaries and Joint Ventures. Create, acquire or
otherwise suffer to exist, or permit any Subsidiary of such Borrower to
create, acquire or otherwise suffer to exist, any Subsidiary or joint
venture arrangement not in existence as of the date hereof, except in
connection with a Permitted Acquisition.
8.2.14. Tax Consolidation. File or consent to the filing of
any consolidated income tax return with any Person other than Borrowers
and Borrowers' Subsidiaries.
8.2.15. Organizational Documents. Agree to, or suffer to
occur, any amendment, supplement or addition to its or any of its
Subsidiaries' charter, articles or certificate of incorporation,
certificate of formation, limited partnership agreement, bylaws,
limited liability agreement, operating agreement or other
organizational documents (as the case may be), that (i) would alter or
modify in any way any rights relating to preferred stock (including
without limitation the Series B Preferred Stock) or create any new
class of preferred stock or (ii) could reasonably be expected to have a
material adverse effect on the interests of Agent and Lenders.
Notwithstanding the foregoing, Borrowers and their Subsidiaries may
take such action as is necessary to dissolve the Inactive Subsidiaries,
the Wind Down Subsidiaries and the other Subsidiaries described in
subsection 8.2.1(iii).
8.2.16. Fiscal Year End. Change, or permit any of its
Subsidiaries to change, its fiscal year end.
8.2.17. Negative Pledges. Enter into any agreement limiting
the ability of such Borrower or any of its Subsidiaries to (i)
voluntarily create Liens upon any of its Property, (ii) pay dividends
or make any other Distributions on its Securities; (iii) make loans or
advances to any Borrower or any Subsidiary; or (iv) transfer any of its
Property to any Borrower or any Subsidiary.
8.2.18. Leases. Become, or permit any of its Subsidiaries to
become, a lessee under any operating lease (other than a lease under
which such Borrower or such Subsidiary is lessor) of Property if the
aggregate Rentals payable during any current or future period of twelve
(12) consecutive months under the lease in question and all other
leases under which any Borrowers or any of its Subsidiaries is then
lessee would exceed $5,000,000. The term "Rentals" means, as of the
date of determination, all payments which the lessee is required to
make by the terms of any lease.
8.2.19. Leases and Financing Arrangements. Except for the
Apex Trailer Leases and the trailer financing arrangements described on
Exhibit 8.2.19, after the
-60-
Closing Date, enter into, or permit any of its Subsidiaries to enter
into, any new trailer lease as lessor or any new financing arrangement
as lender in excess of $500,000 in the aggregate in any calendar year.
8.2.20. Change in Business. Change, or permit any of its
Subsidiaries to change, in any material respect, the nature of its
business as conducted on the Closing Date.
8.3. Specific Financial Covenants.
During the Term, and thereafter for so long as there are any
Obligations outstanding, each Borrower covenants that it shall comply with all
of the financial covenants set forth in Exhibit 8.3 hereto. If GAAP changes from
the basis used in preparing the audited financial statements delivered to Agent
by Borrowers on or before the Closing Date, Borrowers will provide Agent with
certificates demonstrating compliance with such financial covenants and will
include, at the election of Borrowers or upon the request of Agent, calculations
setting forth the adjustments necessary to demonstrate how Borrowers are also in
compliance with such financial covenants based upon GAAP as in effect on the
Closing Date.
SECTION 9. CONDITIONS PRECEDENT
9.1. Conditions Precedent to Initial Loans and Other
Initial Credit Accommodations.
Notwithstanding any other provision of this Agreement or any
of the other Loan Documents, and without affecting in any manner the rights of
Agent or any Lender under the other sections of this Agreement, no Lender shall
be required to make any Loan on the Closing Date, nor shall Agent be required to
issue or procure any Letter of Credit or LC Guaranty on the Closing Date unless
and until each of the following conditions has been and continues to be
satisfied in a manner satisfactory to Agent and each Lender party to this
Agreement on the Closing Date:
9.1.1. Documentation. Agent and the Lenders shall have
received, in form and substance satisfactory to Agent and its counsel
and the Lenders, a duly executed copy of this Agreement and the other
Loan Documents, together with such additional documents, instruments,
opinions and certificates as Agent and its counsel shall require in
connection therewith from time to time (including, without limitation,
the Convertible Note Documents and the Apex Sale Documents), all in
form and substance satisfactory to Agent and its counsel and the
Lenders.
9.1.2. No Default. No Default or Event of Default shall
exist.
9.1.3. Other Conditions. Each of the conditions precedent
set forth in the Loan Documents shall have been satisfied.
9.1.4. Availability. Agent shall have determined that
immediately after Lenders have made the initial Loans and after Agent
has issued or procured the initial
-61-
Letters of Credit and LC Guaranties contemplated hereby, and Borrowers
have paid (or, if accrued, treated as paid), all closing costs incurred
in connection with the transactions contemplated hereby, Availability
shall not be less than $25,000,000.
9.1.5. No Litigation. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or
proposed before any court, governmental agency or legislative body to
enjoin, restrain or prohibit, or to obtain damages in respect of, or
which is adversely related to or arises out of this Agreement, the
Convertible Note Documents or the Apex Sale Documents or the
consummation of the transactions contemplated hereby or thereby.
9.1.6. Material Adverse Effect. As of the Closing Date,
since August 8, 2003, there has not been any (i) material adverse
change in its business, assets, financial condition, income or
prospects and no event or condition exists which would be reasonably
likely to result in any Material Adverse Effect or (ii) materially
adverse change or material disruption in the financial banking or
capital markets, which could reasonably be expected to have a material
adverse effect on the syndication of the Total Credit Facility. In no
event shall the charges described on Exhibit 7.1.10 hereto be deemed to
have resulted in a Material Adverse Effect.
9.1.7. Audits, Appraisals and Environmental Reports. All of
the appraisals and audits of the real and personal Property of
Borrowers being conducted by Agent (or a third party designated by
Agent) prior to the Closing Date, and all of the environmental
assessments of the real Property of Borrowers being conducted by Agent
(or a third party designated by Agent) prior to the Closing Date, shall
have been completed to Agent's satisfaction.
9.1.8. Apex Sale. The Apex Sale shall have been consummated
pursuant to the terms of the Apex Sale Documents.
9.1.9. Closing Fees. Borrowers shall have paid all fees and
expenses owing to Agent, Arranger or any Lender that are to be paid on
the Closing Date.
9.2. Conditions Precedent to all Loans and other Credit
Accommodations.
Notwithstanding any other provision of this Agreement or any
other Loan Documents, and without affecting in any manner the rights of any
Agent or any Lender under the other sections of this Agreement, no Lender shall
be required to make any Loan, nor shall Agent be required to issue or procure
any Letter of Credit or LC Guaranty unless and until each of the following
conditions has been and continues to be satisfied:
9.2.1. No Default. No Default or Event of Default shall
exist.
9.2.2. No Litigation. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or
proposed before any governmental agency or legislative body to enjoin,
restrain or prohibit, or to obtain damages in respect of, or which is
related to or arises out of, any of the Loan Documents
-62-
SECTION 10. EVENTS OF DEFAULT; RIGHTS AND REMEDIES ON DEFAULT
10.1. Events of Default.
The occurrence of one or more of the following events shall
constitute an "Event of Default":
10.1.1. Payment of Obligations. Borrowers shall fail to pay
any of the Obligations hereunder or under any Note on the due date
thereof (whether due at stated maturity, on demand, upon acceleration
or otherwise).
10.1.2. Misrepresentations. Any material representation,
warranty or other statement made or furnished to Agent or any Lender by
or on behalf of any Borrower, any of its Subsidiaries or any Guarantor
in this Agreement, any of the other Loan Documents or any instrument,
certificate or financial statement furnished in compliance with or in
reference thereto proves to have been false or misleading in any
material respect when made, furnished or reaffirmed pursuant to Section
7.2 hereof.
10.1.3. Breach of Specific Covenants. Borrowers shall fail or
neglect to perform, keep or observe any covenant contained in Section
or subsection (i) 6.1.2, 6.2.4, 6.2.5, 8.1.1, 8.1.2, 8.1.3 (other than
8.1.3(ii)), 8.1.4, 8.2 or 8.3 hereof on the date that Borrowers are
required to perform, keep or observe such covenant or (ii) 5.2, 5.3,
5.4, 6.1.1, 8.1.3(ii), 8.1.9 or 8.1.11 hereof within 5 Business Days
following the date on which Borrowers are required to perform, keep or
observe such covenant.
10.1.4. Breach of Other Covenants. Borrowers shall fail or
neglect to perform, keep or observe any covenant contained in this
Agreement (other than a covenant which is dealt with specifically
elsewhere in Section 10.1 hereof) and the breach of such other covenant
is not cured to Agent's satisfaction within 30 days after the sooner to
occur of Borrowers' receipt of notice of such breach from Agent or the
date on which such failure or neglect first becomes known to any
officer of any Borrower.
10.1.5. Default Under Security Documents or Other Agreements.
Any event of default shall occur under, or any Borrower, any of its
Subsidiaries or any Guarantor shall default in the performance or
observance of any term, covenant, condition or agreement applicable to
such Person contained in, any of the Security Documents or the Other
Agreements and such default shall continue beyond any applicable grace
period.
10.1.6. Other Defaults. There shall occur (a) any default or
event of default on the part of any Borrower, any of its Subsidiaries
or any Guarantor under any agreement, document or instrument to which
such Borrower, such Subsidiary or such Guarantor is a party or by which
such Borrower, such Subsidiary or such Guarantor or any of its Property
is bound, evidencing or relating to any Indebtedness (other than the
Obligations) with an outstanding principal balance in excess of
$5,000,000, if the
-63-
payment or maturity of such Indebtedness is or could be accelerated in
consequence of such event of default or demand for payment of such
Indebtedness is made or could be made in accordance with the terms
thereof or (b) any default or event of default under any Convertible
Note Document or any Other Indebtedness Document (to the extent that
such default or event of default does not otherwise result in an Event
of Default under Subsection 10.1.6(a)).
10.1.7. Uninsured Losses. Any material loss, theft, damage or
destruction of any portion of the Collateral having a fair market value
of $3,000,000, in the aggregate, if not fully covered (subject to such
deductibles and self-insurance retentions as Agent shall have
permitted) by insurance.
10.1.8. Insolvency and Related Proceedings. Any Borrower, any
of its Subsidiaries or any Guarantor shall cease to be Solvent or shall
suffer the appointment of a receiver, trustee, custodian or similar
fiduciary, or shall make an assignment for the benefit of creditors, or
any petition for an order for relief shall be filed by or against any
Borrower, any of its Subsidiaries or any Guarantor under U.S. federal
bankruptcy laws, the Insolvency Laws of Canada or any similar laws (if
against any Borrower, any of its Subsidiaries or any Guarantor the
continuation of such proceeding for more than 30 days), or any
Borrower, any of its Subsidiaries or any Guarantor shall make any offer
of settlement, extension or composition to their respective unsecured
creditors generally.
10.1.9. Business Disruption; Condemnation. There shall occur
a cessation of a substantial part of the business of any Borrower, any
of its Subsidiaries or any Guarantor for a period which materially
adversely affects such Borrower's, such Subsidiary's or such
Guarantor's capacity to continue its business on a profitable basis; or
any Borrower, any of its Subsidiaries or any Guarantor shall suffer the
loss or revocation of any material license or permit now held or
hereafter acquired by such Borrower, such Subsidiary or such Guarantor
which is necessary to the continued or lawful operation of its
business; or any Borrower, any of its Subsidiaries or any Guarantor
shall be enjoined, restrained or in any way prevented by court,
governmental or administrative order from conducting all or any
material part of its business affairs; or any material lease or
agreement pursuant to which any Borrower, any of its Subsidiaries or
any Guarantor leases, uses or occupies any Property shall be canceled
or terminated prior to the expiration of its stated term, except any
such lease or agreement the cancellation or termination of which could
not reasonably be expected to have a Material Adverse Effect; or any
material portion of the Collateral shall be taken through condemnation
or the value of such Property shall be impaired through condemnation.
10.1.10. Change of Ownership. (a) any "Change of Control"
under and as defined in the Convertible Note Indenture, as in effect on
the date hereof, shall occur; (b) a majority of the members of the
board of directors as of the date hereof of Wabash cease to be members
of the board of directors of such Person; (c) Wabash shall cease to own
and control, beneficially and of record (directly or indirectly),
-64-
100% of the issued and outstanding Securities and Voting Stock of each
other Borrower; or (d) a Borrower or a Subsidiary of a Borrower shall
cease to own and control, beneficially and of record (directly or
indirectly), 100% of the issued and outstanding Securities and Voting
Stock of each of its Subsidiaries that it owns on the date hereof.
10.1.11. Business Activity. Any Inactive Subsidiary engages in
any business activity, owns any material assets, or incurs any
Indebtedness other than the performance of its obligations under the
Loan Documents to which it is a party and the performance of its
obligations under intercompany agreements and agreements with its
shareholders that have been disclosed to Agent in writing
10.1.12. ERISA. A Reportable Event shall occur which, in
Agent's determination, constitutes grounds for the termination by the
Pension Benefit Guaranty Corporation of any Plan or for the appointment
by the appropriate United States district court of a trustee for any
Plan, or if any Plan shall be terminated or any such trustee shall be
requested or appointed, or any Borrower, any of its Subsidiaries or any
Guarantor is in "default" (as defined in Section 4219(c)(5) of ERISA)
with respect to payments to a Multiemployer Plan resulting from such
Borrower's, such Subsidiary's or such Guarantor's complete or partial
withdrawal from such Plan and any such event could reasonably be
expected to have a Material Adverse Effect.
10.1.13. Challenge to Agreement. Any Borrower, any Subsidiary
of any Borrower or any Guarantor, or any Affiliate of any of them,
shall challenge or contest in any action, suit or proceeding the
validity or enforceability of this Agreement or any of the other Loan
Documents, the legality or enforceability of any of the Obligations or
the perfection or priority of any Lien granted to Agent.
10.1.14. Repudiation of or Default Under Guaranty Agreement.
Any Guarantor shall revoke or attempt to revoke the Guaranty Agreement
signed by such Guarantor, or shall repudiate such Guarantor's liability
thereunder or shall be in default under the terms thereof.
10.1.15. Criminal Forfeiture. Any Borrower, any of its
Subsidiaries or any Guarantor shall be criminally indicted or convicted
under any law that could lead to a forfeiture of any Property of such
Borrower, such Subsidiary or such Guarantor.
10.1.16. Judgments. Any money judgments, writ of attachment or
similar processes (collectively, "Judgments") in excess of amounts
covered by insurance (not including self-insurance or other retentions)
are issued or rendered against any Borrower, any of its Subsidiaries or
any Guarantor, or any of their respective Property (i) in the case of
money judgments, in an amount of $2,500,000 or more for any single
judgment, attachment or process or $5,000,000 or more for all such
judgments, attachments or processes in the aggregate, in each case in
excess of any applicable insurance with respect to which the insurer
has admitted liability, and (ii) in the case of non-monetary Judgments,
such Judgment or Judgments (in the aggregate) could
-65-
reasonably be expected to have a Material Adverse Effect, in each case
which Judgment is not stayed, released or discharged within 30 days.
10.1.17. Material Adverse Effect. Any event occurs which
reasonably could be expected to have a Material Adverse Effect.
10.2. Acceleration of the Obligations.
Upon or at any time after the occurrence and during the
continuance of an Event of Default, (i) Agent may, and upon the direction of
Majority Lenders, Agent shall, declare the Revolving Loan Commitments terminated
and/or (ii) Agent may, and upon the direction of Majority Lenders, Agent shall,
declare all or any portion of the Obligations at once due and payable without
presentment, demand protest or further notice by Agent or any Lender, and
Borrowers shall forthwith pay to Agent, the full amount of such Obligations,
provided, that upon the occurrence of an Event of Default specified in
subsection 10.1.8 hereof, the Revolving Loan Commitments shall automatically be
terminated and all of the Obligations shall become automatically due and
payable, in each case without declaration, notice or demand by Agent or any
Lender.
10.3. Other Remedies.
Upon the occurrence and during the continuance of an Event of
Default, Agent shall have and may exercise from time to time the following other
rights and remedies:
10.3.1. All of the rights and remedies of a secured party
under the UCC or under other applicable law, and all other legal and
equitable rights to which Agent or Lenders may be entitled, all of
which rights and remedies shall be cumulative and shall be in addition
to any other rights or remedies contained in this Agreement or any of
the other Loan Documents, and none of which shall be exclusive.
10.3.2. The right to take immediate possession of the
Collateral, and to (i) require each Borrower and each of its
Subsidiaries to assemble the Collateral, at Borrower's joint and
several expense, and make it available to Agent at a place designated
by Agent which is reasonably convenient to both parties, and (ii) enter
any premises where any of the Collateral shall be located and to keep
and store the Collateral on said premises until sold (and if said
premises be the Property of any Borrower or any of its Subsidiaries,
such Borrower agrees not to charge, or permit such Subsidiary to
charge, Agent for storage thereof).
10.3.3. The right to sell or otherwise dispose of all or any
Collateral in its then condition, or after any further manufacturing or
processing thereof, at public or private sale or sales, with such
notice as may be required by law, in lots or in bulk, for cash or on
credit, all as Agent, in its sole discretion, may deem advisable. Agent
may, at Agent's option, disclaim any and all warranties regarding the
Collateral in connection with any such sale. Each Borrower agrees that
10 days' written notice to such Borrower or any of its Subsidiaries of
any public or private sale or other
-66-
disposition of Collateral shall be reasonable notice thereof, and such
sale shall be at such locations as Agent may designate in said notice.
Agent shall have the right to conduct such sales on any Borrower's or
any of its Subsidiaries' premises, without charge therefor, and such
sales may be adjourned from time to time in accordance with applicable
law. Agent shall have the right to sell, lease or otherwise dispose of
the Collateral, or any part thereof, for cash, credit or any
combination thereof, and Agent, on behalf of Lenders, may purchase all
or any part of the Collateral at public or, if permitted by law,
private sale and, in lieu of actual payment of such purchase price, may
set off the amount of such price against the Obligations. The proceeds
realized from the sale of any Collateral shall be applied, after
allowing 2 Business Days for collection, in the manner provided in
subsection 3.4.2. If any deficiency shall arise, each Borrower and each
Guarantor shall remain jointly and severally liable to Agent and
Lenders therefor.
10.3.4. Agent is hereby granted a license or other right to
use, without charge, each Borrower's and each of its Subsidiaries'
labels, patents, copyrights, licenses, rights of use of any name, trade
secrets, tradenames, trademarks and advertising matter, or any Property
of a similar nature, as it pertains to the Collateral, in completing,
advertising for sale and selling any Collateral and each Borrower's and
each of its Subsidiaries' rights under all licenses and all franchise
agreements shall inure to Agent's benefit.
10.3.5. Agent may, at its option, require Borrowers to
deposit with Agent funds equal to 105% of the Dollar Equivalent of the
LC Amount and, if Borrowers fail to promptly make such deposit, Agent
may advance such amount as a Revolving Credit Loan (whether or not an
Overadvance is created thereby). Each such Revolving Credit Loan shall
be secured by all of the Collateral and shall constitute a Base Rate
Portion. Any such deposit or advance shall be held by Agent as a
reserve to fund future payments on such LC Guaranties and future
drawings against such Letters of Credit. At such time as all LC
Guaranties have been paid or terminated and all Letters of Credit have
been drawn upon or expired, any amounts remaining in such reserve shall
be applied against any outstanding Obligations, or, if all Obligations
have been indefeasibly paid in full, returned to Borrowers.
10.3.6. Notwithstanding any provision of this Agreement or
any other Loan Document to the contrary, Agent shall not take any
action to foreclose upon, acquire or take possession of or occupy, or
exercise any remedies by which it will take title or otherwise come
into ownership in respect of Collateral consisting of real Property
listed on Exhibit 10.3.6 (the "Affected Collateral") or purchase or
otherwise acquire (including in lieu of actual payment of a purchase
price) any stock or other equity interest in any Company or other
Person that owns the Affected Collateral unless and until (i) Lenders
have obtained, at Borrowers' joint and several expense, a Phase II
environmental site assessment with respect to the Affected Collateral,
prepared by an environmental consultant reasonably acceptable to
Lenders and (ii) each Lender has confirmed that no remediation is
required by such Lender or that any remediation has
-67-
been completed to the satisfaction of such Lender with respect to the
Affected Collateral.
10.4. Set Off and Sharing of Payments.
In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, during the
continuance of any Event of Default, each Lender is hereby authorized by each
Borrower at any time or from time to time, with prior written consent of Agent
and with reasonably prompt subsequent notice to such Borrower (any prior or
contemporaneous notice to such Borrower being hereby expressly waived) to set
off and to appropriate and to apply any and all (i) balances held by such Lender
at any of its offices for the account of such Borrower or any of its
Subsidiaries (regardless of whether such balances are then due to such Borrower
or its Subsidiaries), and (ii) other property at any time held or owing by such
Lender to or for the credit or for the account of such Borrower or any of its
Subsidiaries, against and on account of any of the Obligations. Any Lender
exercising a right to set off shall, to the extent the amount of any such set
off exceeds its Revolving Loan Percentage of the amount set off, purchase for
cash (and the other Lenders shall sell) interests in each such other Lender's
pro rata share of the Obligations as would be necessary to cause such Lender to
share such excess with each other Lender in accordance with their respective
Revolving Loan Percentages. Each Borrower agrees, to the fullest extent
permitted by law, that any Lender may exercise its right to set off with respect
to amounts in excess of its pro rata share of the Obligations and upon doing so
shall deliver such excess to Agent for the benefit of all Lenders in accordance
with the Revolving Loan Percentages.
10.5. Remedies Cumulative; No Waiver.
All covenants, conditions, provisions, warranties, guaranties,
indemnities, and other undertakings of each Borrower contained in this Agreement
and the other Loan Documents, or in any document referred to herein or contained
in any agreement supplementary hereto or in any schedule or in any Guaranty
Agreement given to Agent or any Lender or contained in any other agreement
between any Lender and such Borrower or between Agent and such Borrower,
heretofore, concurrently, or hereafter entered into, shall be deemed cumulative
to and not in derogation or substitution of any of the terms, covenants,
conditions, or agreements of such Borrower herein contained. The failure or
delay of Agent or any Lender to require strict performance by any Borrower of
any provision of this Agreement or to exercise or enforce any rights, Liens,
powers, or remedies hereunder or under any of the aforesaid agreements or other
documents or security or Collateral shall not operate as a waiver of such
performance, Liens, rights, powers and remedies, but all such requirements,
Liens, rights, powers, and remedies shall continue in full force and effect
until all Loans and other Obligations owing or to become owing from such
Borrower to Agent and each Lender have been fully satisfied. None of the
undertakings, agreements, warranties, covenants and representations of any
Borrower contained in this Agreement or any of the other Loan Documents and no
Default or Event of Default by any Borrower under this Agreement or any other
Loan Documents shall be deemed to have been suspended or waived by Lenders,
unless such suspension or waiver is by an instrument in writing specifying such
suspension or waiver and is signed by a duly authorized representative of Agent
and directed to Borrowers.
-68-
SECTION 11. THE AGENT
11.1. Authorization and Action.
Each Lender hereby appoints and authorizes Agent to take such
action on its behalf and to exercise such powers under this Agreement and the
other Loan Documents as are delegated to Agent by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto. Each Lender
hereby acknowledges that Agent shall not have by reason of this Agreement
assumed a fiduciary relationship in respect of any Lender. In performing its
functions and duties under this Agreement, Agent shall act solely as agent of
Lenders and shall not assume, or be deemed to have assumed, any obligation
toward, or relationship of agency or trust with or for, any Borrower. As to any
matters not expressly provided for by this Agreement and the other Loan
Documents (including without limitation enforcement and collection of the
Notes), Agent may, but shall not be required to, exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Majority Lenders, whenever such instruction shall be requested by Agent or
required hereunder, or a greater or lesser number of Lenders if so required
hereunder, and such instructions shall be binding upon all Lenders; provided,
that Agent shall be fully justified in failing or refusing to take any action
which exposes Agent to any liability or which is contrary to this Agreement, the
other Loan Documents or applicable law, unless Agent is indemnified to its
satisfaction by the other Lenders against any and all liability and expense
which it may incur by reason of taking or continuing to take any such action. If
Agent seeks the consent or approval of the Majority Lenders (or a greater or
lesser number of Lenders as required in this Agreement), with respect to any
action hereunder, Agent shall send notice thereof to each Lender and shall
notify each Lender at any time that the Majority Lenders (or such greater or
lesser number of Lenders) have instructed Agent to act or refrain from acting
pursuant hereto.
11.2. Agent's Reliance, Etc.
Neither Agent, any Affiliate of Agent, nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement or the other Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, Agent: (i) may treat each Lender party hereto as the holder of
Obligations until Agent receives written notice of the assignment or transfer of
such Lender's portion of the Obligations signed by such Lender and in form
reasonably satisfactory to Agent; (ii) may consult with legal counsel,
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts, (iii) makes
no warranties or representations to any Lender and shall not be responsible to
any Lender for any recitals, statements, warranties or representations made in
or in connection with this Agreement or any other Loan Documents; (iv) shall not
have any duty beyond Agent's customary practices in respect of loans in which
Agent is the only lender to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement or
-69-
the other Loan Documents on the part of any Borrower, to inspect the property
(including the books and records) of any Borrower, to monitor the financial
condition of any Borrower or to ascertain the existence or possible existence or
continuation of any Default or Event of Default; (v) shall not be responsible to
any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto; (vi)
shall not be liable to any Lender for any action taken, or inaction, by Agent
upon the instructions of Majority Lenders pursuant to Section 11.1 hereof or
refraining to take any action pending such instructions; (vii) shall not be
liable for any apportionment or distributions of payments made by it in good
faith pursuant to Section 3 hereof; (viii) shall incur no liability under or in
respect of this Agreement or the other Loan Documents by acting upon any notice,
consent, certificate, message or other instrument or writing (which may be by
telephone, facsimile, telegram, cable or telex) believed in good faith by it to
be genuine and signed or sent by the proper party or parties; and (ix) may
assume that no Event of Default has occurred and is continuing, unless Agent has
actual knowledge of the Event of Default, has received notice from a Borrower or
a Borrower's independent certified public accountants stating the nature of the
Event of Default, or has received notice from a Lender stating the nature of the
Event of Default and that such Lender considers the Event of Default to have
occurred and to be continuing. In the event any apportionment or distribution
described in clause (vii) above is determined to have been made in error, the
sole recourse of any Person to whom payment was due but not made shall be to
recover from the recipients of such payments any payment in excess of the amount
to which they are determined to have been entitled.
11.3. Fleet and Affiliates.
With respect to its commitment hereunder to make Loans, Fleet
shall have the same rights and powers under this Agreement and the other Loan
Documents as any other Lender and may exercise the same as though it were not
Agent; and the terms "Lender," "Lenders" or "Majority Lenders" shall, unless
otherwise expressly indicated, include Fleet in its individual capacity as a
Lender. Fleet and its Affiliates may lend money to, and generally engage in any
kind of business with, each Borrower, and any Person who may do business with or
own Securities of each Borrower all as if Fleet were not Agent and without any
duty to account therefor to any other Lender.
11.4. Lender Credit Decision.
Each Lender acknowledges that it has, independently and
without reliance upon Agent or any other Lender and based on the financial
statements referred to herein and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement. Agent
shall not have any duty or responsibility, either initially or on an ongoing
basis, to provide any Lender with any credit or other similar information
regarding any Borrower.
-70-
11.5. Indemnification.
Lenders agree to indemnify Agent and Arranger (to the extent
not reimbursed by Borrowers or Guarantors), in accordance with their respective
Aggregate Percentages, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against Agent or Arranger in any way relating to or arising out
of this Agreement or any other Loan Document or any action taken or omitted by
Agent or Arranger under this Agreement; provided that no Lender shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from
Agent's or Arranger's gross negligence or willful misconduct. Without limitation
of the foregoing, each Lender agrees to reimburse Agent and Arranger promptly
upon demand for its ratable share, as set forth above, of any out-of-pocket
expenses (including reasonable attorneys' fees) incurred by Agent or Arranger in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiation, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement and each other Loan Document, to the
extent that Agent or Arranger, as applicable, is not reimbursed for such
expenses by Borrowers. The obligations of Lenders under this Section 11.5 shall
survive the payment in full of all Obligations and the termination of this
Agreement. If after payment and distribution of any amount by Agent to Lenders,
any Lender or any other Person, including any Borrower, any creditor of any
Borrower, a liquidator, administrator or trustee in bankruptcy, recovers from
Agent or Arranger any amount found to have been wrongfully paid to Agent or
Arranger or disbursed by Agent or Arranger to Lenders, then Lenders, in
accordance with their respective Aggregate Percentages, shall reimburse Agent or
Arranger, as applicable, for all such amounts.
11.6. Rights and Remedies to be Exercised by Agent Only.
Each Lender agrees that, except as set forth in Section 10.4,
no Lender shall have any right individually (i) to realize upon the security
created by this Agreement or any other Loan Document, (ii) to enforce any
provision of this Agreement or any other Loan Document, or (iii) to make demand
for payment by any Borrower under this Agreement or any other Loan Document.
11.7. Agency Provisions Relating to Collateral.
Each Lender authorizes and ratifies Agent's entry into this
Agreement and the Security Documents for the benefit of Lenders. Each Lender
agrees that any action taken by Agent with respect to the Collateral in
accordance with the provisions of this Agreement or the Security Documents, and
the exercise by Agent of the powers set forth herein or therein, together with
such other powers as are reasonably incidental thereto, shall be authorized and
binding upon all Lenders. Agent is hereby authorized on behalf of all Lenders,
without the necessity of any notice to or further consent from any Lender to
take any action with respect to any Collateral or the Loan Documents which may
be necessary to perfect and maintain perfected Agent's Liens upon the
Collateral, for its benefit and the ratable benefit of Lenders.
-71-
Lenders hereby irrevocably authorize Agent, at its option and in its discretion,
to release any Lien granted to or held by Agent upon any Collateral (i) upon
termination of the Agreement and payment and satisfaction of all Obligations; or
(ii) constituting property being sold or disposed of in compliance with
subsection 8.2.9 hereof and if Borrowers certify to Agent that the sale or
disposition is made in compliance with subsection 8.2.9 hereof, as it may be
amended from time to time in accordance with the provisions of Section 11.10
(and Agent may rely conclusively on any such certificate, without further
inquiry); or (iii) constituting property in which no Borrower owned any interest
at the time the Lien was granted or at any time thereafter; or (iv) in
connection with any foreclosure sale or other disposition of Collateral after
the occurrence and during the continuation of an Event of Default or (v) if
approved, authorized or ratified in writing by Agent at the direction of all
Lenders. Upon request by Agent at any time, Lenders will confirm in writing
Agent's authority to release particular types or items of Collateral pursuant
hereto. Agent shall have no obligation whatsoever to any Lender or to any other
Person to assure that the Collateral exists or is owned by any Borrower or is
cared for, protected or insured or has been encumbered or that the Liens granted
to Agent herein or pursuant to the Security Documents have been properly or
sufficiently or lawfully created, perfected, protected or enforced or are
entitled to any particular priority, or to exercise at all or in any particular
manner or under any duty of care, disclosure or fidelity, or to continue
exercising, any of its rights, authorities and powers granted or available to
Agent in this Section 11.7 or in any of the Loan Documents, it being understood
and agreed that in respect of the Collateral, or any act, omission or event
related thereto, Agent may act in any manner it may deem appropriate, in its
sole discretion, but consistent with the provisions of this Agreement, including
given Agent's own interest in the Collateral as a Lender and that Agent shall
have no duty or liability whatsoever to any Lender.
11.8. Agent's Right to Purchase Commitments.
Agent shall have the right, but shall not be obligated, at any
time upon written notice to any Lender and with the consent of such Lender,
which may be granted or withheld in such Lender's sole discretion, to purchase
for Agent's own account all of such Lender's interests in this Agreement, the
other Loan Documents and the Obligations, for the face amount of the outstanding
Obligations owed to such Lender, including without limitation all accrued and
unpaid interest and fees.
11.9. Right of Sale, Assignment, Participations.
Each Borrower hereby consents to any Lender's participation,
sale, assignment, transfer or other disposition, at any time or times hereafter,
of this Agreement and any of the other Loan Documents, or of any portion hereof
or thereof, including, without limitation, such Lender's rights, title,
interests, remedies, powers, and duties hereunder or thereunder subject to the
terms and conditions set forth below:
11.9.1. Sales, Assignments. Each Lender hereby agrees that,
with respect to any sale or assignment (i) no such sale or assignment
shall be for an amount of less than $5,000,000 or any integral multiple
of $1,000,000 in excess thereof, or, if less,
-72-
the entire Revolving Loan Commitment and outstanding Term Loan of such
Lender, (ii) Agent, Arranger and, in the absence of a Default or Event
of Default, Borrowers, must consent, such consent not to be
unreasonably withheld, to each such assignment to a Person that is not
an original signatory to this Agreement or a Lender or an Affiliate of
such Person or Lender, (iii) the assigning Lender shall pay to Agent a
processing and recordation fee of $3,500, (iv) Agent, the assigning
Lender and the assignee Lender shall each have executed and delivered
an Assignment and Acceptance Agreement and (v) in the case of an
assignment of the type described in subsection 11.11.2, Bank and
Majority Lenders must consent thereto. After such sale or assignment
has been consummated (x) the assignee Lender thereupon shall become a
"Lender" for all purposes of this Agreement and (y) the assigning
Lender shall have no further liability for funding the portion of
Revolving Loan Commitments assumed by such other Lender.
11.9.2. Participations. Any Lender may grant participations
in its extensions of credit hereunder to any other Lender or other
lending institution (a "Participant"), provided that (i) no such
participation shall be for an amount of less than $5,000,000 or any
integral multiple of $1,000,000 in excess thereof, other than
participations to Affiliates of such Lender, which may be in any
amount, (ii) no Participant shall thereby acquire any direct rights
under this Agreement, (iii) no Participant shall be granted any right
to consent to any amendment, except to the extent any of the same
pertain to (1) reducing the aggregate principal amount of, or interest
rate on, or fees applicable to, any Loan or (2) extending the final
stated maturity of any Loan or the stated maturity of any portion of
any payment of principal of, or interest or fees applicable to, any of
the Loans; provided, that the rights described in this subclause (2)
shall not be deemed to include the right to consent to any amendment
with respect to or which has the effect of requiring any mandatory
prepayment of any portion of any Loan or any amendment or waiver of any
Default or Event of Default, (iv) no sale of a participation in
extensions of credit shall in any manner relieve the originating Lender
of its obligations hereunder, (v) the originating Lender shall remain
solely responsible for the performance of such obligations, (vi)
Borrowers and Agent shall continue to deal solely and directly with the
originating Lender in connection with the originating Lender's rights
and obligations under this Agreement and the other Loan Documents,
(vii) in no event shall any financial institution purchasing the
participation grant a participation in its participation interest in
the Loans without the prior written consent of Agent and Arranger, and,
in the absence of a Default or an Event of Default, Borrowers, which
consents shall not unreasonably be withheld and (viii) all amounts
payable by Borrowers hereunder shall be determined as if the
originating Lender had not sold any such participation.
11.9.3. Certain Agreements of Borrowers. Each Borrower agrees
that (i) it will use its best efforts to assist and cooperate with each
Lender in any manner reasonably requested by such Lender to effect the
sale of participation in or assignments of any of the Loan Documents or
any portion thereof or interest therein, including, without limitation,
assisting in the preparation of appropriate disclosure
-73-
documents and making members of management available at reasonable
times to meet with and answer questions of potential assignees and
Participants; and (ii) subject to the provisions of Section 12.14
hereof, such Lender may disclose credit information regarding each
Borrower to any potential Participant or assignee.
11.9.4. Non U.S. Resident Transferees. If, pursuant to this
Section 11.9, any interest in this Agreement or any Loans is
transferred to any transferee which is organized under the laws of any
jurisdiction other than the United States or any state thereof, the
transferor Lender shall cause such transferee (other than any
Participant), and may cause any Participant, concurrently with and as a
condition precedent to the effectiveness of such transfer, to (i)
represent to the transferor Lender (for the benefit of the transferor
Lender, Agent, and Borrowers) that under applicable law and treaties no
taxes will be required to be withheld by Agent, Borrowers or the
transferor Lender with respect to any payments to be made to such
transferee in respect of the interest so transferred, (ii) furnish to
the transferor Lender, Agent and Wabash either United States Internal
Revenue Service Form W-8BEN or United States Internal Revenue Service
Form W-8ECI (wherein such transferee claims entitlement to complete
exemption from United States federal withholding tax on all interest
payments hereunder), and (iii) agree (for the benefit of the transferor
Lender, Agent and Borrowers) to provide the transferor Lender, Agent
and Wabash a new Form W-8BEN or Form W-8ECI upon the obsolescence of
any previously delivered form and comparable statements in accordance
with applicable United States laws and regulations and amendments duly
executed and completed by such transferee, and to comply from time to
time with all applicable United States laws and regulations with regard
to such withholding tax exemption.
11.10. Amendment.
No amendment or waiver of any provision of this Agreement or
any other Loan Document (including without limitation any Note), nor consent to
any departure by any Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Majority Lenders and Borrowers,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, that no amendment,
waiver or consent shall be effective, unless (i) in writing and signed by each
Lender, if it does any of the following: (1) increase or decrease the aggregate
Loan Commitments, or any Lender's Revolving Loan Commitment or Term Loan
Commitment, (2) reduce the principal of, or interest on, any amount payable
hereunder or under any Note, other than those payable only to Fleet in its
capacity as Agent, which may be reduced by Fleet unilaterally, (3) decrease any
interest rate payable hereunder, the Unused Line Fee or any other fee payable to
Lenders (as opposed to Agent or Arranger) or the rate at which any such fee is
calculated, (4) postpone any date fixed for any payment of principal of, or
interest on, any amounts payable hereunder or under any Note, or any fees
payable to the Lenders, other than those payable only to Fleet in its capacity
as Agent, which may be postponed by Fleet unilaterally, (5) modify the
definition of the term Borrowing Base if the effect of such modification is to
increase the amount available to be borrowed hereunder, (6) extend the period
during which the percentages in effect in clause (b) of the definition of the
term
-74-
Borrowing Base are increased by any of 10% and 5% beyond the 180 day period
after the Closing Date, (7) modify the definitions of any of the terms Eligible
Account, Eligible Inventory, Eligible ▇▇▇▇ and Hold Inventory and Eligible
Trailer Inventory, if the effect of such modification is to increase the amount
available to be borrowed in respect of the Revolving Loans, (8) reduce the
number of Lenders that shall be required for Lenders or any of them to take any
action hereunder, (9) release or discharge any Person liable for the performance
of any obligations of any Borrower hereunder or under any of the Loan Documents,
(10) amend any provision of this Agreement that requires the consent of all
Lenders or consent to or waive any breach thereof, (11) amend the definition of
the term "Majority Lenders", (12) amend Section 1.1.2, subsection 1.1.4(i),
subsection 3.4.2, this Section 11.10 or subsection 10.3.6, (13) amend the
definitions of either of the terms Dominion Event or Dominion Period, (14)
release any of the Collateral, unless otherwise permitted pursuant to Section
11.7 hereof or (15) subordinate the Obligations to any other Indebtedness for
Money Borrowed or subordinate any of the Liens on the Collateral securing the
Obligations to any other Liens, except in the case of subordination of Agent's
Liens on Equipment subject to Permitted Purchase Money Indebtedness (which Agent
shall be permitted to effect without the consent of any other Lender); (ii) in
writing and signed by Agent in addition to the Lenders required above to affect
the rights or duties of Agent under this Agreement, any Note or any other Loan
Document; or (iii) in writing and signed by the Person party thereto, and
neither Agent nor any of the other Lenders, to amend or modify any agreement or
instrument evidencing or relating to any Product Obligations. If a fee is to be
paid by Borrowers in connection with any waiver or amendment hereunder, the
agreement evidencing such amendment or waiver may, at the discretion of Agent
(but shall not be required to), provide that only Lenders executing such
agreement by a specified date may share in such fee (and in such case, such fee
shall be divided among the applicable Lenders on a pro rata basis without
including the interests of any Lenders who have not timely executed such
agreement).
11.11. Resignation of Agent; Appointment of Successor.
11.11.1. Resignation and Appointment. Agent may resign as
Agent by giving not less than thirty (30) days' prior written notice to
Lenders and Borrowers. If Agent shall resign under this Agreement,
then, (i) subject to the consent of Borrowers (which consent shall not
be unreasonably withheld and which consent shall not be required during
any period in which a Default or an Event of Default exists), Majority
Lenders shall appoint from among Lenders and their Affiliates a
successor agent for Lenders or (ii) if a successor agent shall not be
so appointed and approved within the thirty (30) day period following
Agent's notice to Lenders and Borrowers of its resignation, then Agent
shall appoint a successor agent who shall serve as Agent until such
time as Majority Lenders appoint a successor agent, subject to
Borrowers' consent as set forth above. Upon its appointment, such
successor agent shall succeed to the rights, powers and duties of Agent
and the term "Agent" shall mean such successor effective upon its
appointment, and the former Agent's rights, powers and duties as Agent
shall be terminated without any other or further act or deed on the
part of such former Agent or any of the parties to this Agreement.
After the resignation of
-75-
any Agent hereunder, the provisions of this Section 11 shall inure to
the benefit of such former Agent and such former Agent shall not by
reason of such resignation be deemed to be released from liability for
any actions taken or not taken by it while it was an Agent under this
Agreement.
11.11.2. Borrowers' Request. At any time after the second
anniversary of the Closing Date, Borrowers may request that Fleet
resign as Agent hereunder and that (i) Fleet transfer all of its
interests in the Agreement and the Loan Documents to Bank and (ii)
Majority Lenders appoint Bank as successor Agent hereunder. If Bank and
Majority Lenders consent to the foregoing, in their reasonable
judgment, such resignation, transfer and appointment will take place in
the manner set forth in subsections 11.9.1 and 11.11.1 hereof.
11.12. Audit and Examination Reports; Disclaimer by Lenders.
By signing this Agreement, each Lender:
(a) is deemed to have requested that Agent furnish such
Lender, promptly after it becomes available, a copy of each audit or
examination report (each a "Report" and collectively, "Reports")
prepared by or on behalf of Agent;
(b) expressly agrees and acknowledges that Agent (i) does
not make any representation or warranty as to the accuracy of any
Report, and (ii) shall not be liable for any information contained in
any Report;
(c) expressly agrees and acknowledges that the Reports
are not comprehensive audits or examinations, that Agent or other party
performing any audit or examination will inspect only specific
information regarding each Borrower and will rely significantly upon
each Borrower's books and records, as well as on representations of
each Borrower's personnel;
(d) agrees to keep all Reports confidential and strictly for
its internal use, and not to distribute except to its assignees or
participants, or use any Report in any other manner, in accordance with
the provisions of Section 12.14; and
(e) without limiting the generality of any other
indemnification provision contained in this Agreement, agrees: (i) to
hold Agent and any such other Lender preparing a Report harmless from
any action the indemnifying Lender may take or conclusion the
indemnifying Lender may reach or draw from any Report in connection
with any loans or other credit accommodations that the indemnifying
Lender has made or may make to any Borrower, or the indemnifying
Lender's participation in, or the indemnifying Lender's purchase of, a
loan or loans of any Borrower; and (ii) to pay and protect, and
indemnify, defend and hold Agent and any such other Lender preparing a
Report harmless
-76-
from and against, the claims, actions, proceedings, damages, costs,
expenses and other amounts (including reasonable attorney's fees and
expenses) incurred by Agent and any such other Lender preparing a
Report as the direct or indirect result of any third parties who might
obtain all or part of any Report through the indemnifying Lender.
11.13. Syndication Agent; Documentation Agents.
The Syndication Agent and each Documentation Agent identified
in the introductory paragraph of this Agreement, in its capacity as such, shall
not have any rights, powers, duties or responsibilities, and no rights, powers,
duties or responsibilities shall be read into this Agreement or any other Loan
Document or otherwise exist on behalf of or against such entity, in its capacity
as such. If the Syndication Agent or either Documentation Agent resigns, in its
capacity as such, no successor Syndication Agent or Documentation Agent, as
applicable, shall be appointed.
11.14. Quebec Security.
For greater certainty, and without limiting the powers of
Agent hereunder or under any of the other Loan Documents, Borrowers hereby
acknowledge that, for purposes of holding any security granted by any Borrower
or any Guarantor on movable or immovable property pursuant to the laws of the
Province of Quebec to secure obligations of any Borrower or any Guarantor under
any bond or debenture issued by any Borrower or any Guarantor, Agent shall be
the holder of an irrevocable power of attorney (fonde de pouvoir within the
meaning of Article 2692 of the Civil Code of Quebec) for and on behalf of (i)
all present and future Lenders, (ii) Agent, and (iii) Bank or any other
Affiliate of Agent that may from time to time issue Letters of Credit to any
Borrower or execute LC Guaranties in favour of any Borrower. Each Lender, Bank
or any other Affiliate of Agent that may from time to time issue Letters of
Credit to any Borrower or execute LC Guaranties in favour of any Borrower hereby
(i) irrevocably constitutes, to the extent necessary the Agent as the holder of
an irrevocable power of attorney (fonde de pouvoir within the meaning of Article
2692 of the Civil Code of Quebec) in order to hold hypothecs and security
granted by any Borrower or any Guarantor on movable or immovable property
pursuant to the laws of the Province of Quebec to secure obligations of any
Borrower or any Guarantor under any bond or debenture issued by any Borrower or
any Guarantor, and (ii) appoints and agrees that Agent may act as the bondholder
and mandatory with respect to any bond or debenture that may be issued and
pledged from time to time for the benefit of Lenders, Agent, Bank or any other
Affiliate of Agent that may from time to time issue Letters of Credit to any
Borrower or execute LC Guaranties in favour of any Borrower.
The constitution of Agent as the holder of such irrevocable
power of attorney (fonde de pouvoir) and Agent as bondholder and mandatory with
respect to any bond or debenture that may be issued and pledged from time to
time for the benefit of Lenders, Agent, Bank or any other Affiliate of Agent
that may from time to time issue Letters of Credit to any Borrower or execute LC
Guaranties in favour of any Borrower, shall be deemed to have been ratified and
confirmed as follows:
-77-
(i) by any assignee of a Lender by the execution
of an Assignment and Acceptance Agreement;
(ii) by Bank or any other Affiliate of Agent by
the issuance or execution, as the case may be, of Letters of
Credit or LC Guaranties; and
(iii) by any assignee of Agent by the execution of
an assignment agreement.
Notwithstanding the provisions of Section 32 of the An Act
respecting the special powers of legal persons (Quebec), Agent may purchase,
acquire and be the holder of any bond or debenture issued by any Borrower or any
Guarantor (i.e. the fonde de pouvoir may acquire and hold the first bond or
debenture issued under any deed of hypothec by any Borrower or any Guarantor).
Agent herein appointed as fonde de pouvoir shall have the same
rights, powers and immunities as the Agent as stipulated herein, including under
this Section 11, which shall apply mutatis mutandis. Without limitation, the
provisions of Section 11.11 shall apply mutatis mutandis to the resignation and
appointment of a successor Agent acting as fonde de pouvoir.
SECTION 12. MISCELLANEOUS
12.1. Power of Attorney.
Each Borrower hereby irrevocably designates, makes,
constitutes and appoints Agent (and all Persons designated by Agent) as such
Borrower's true and lawful attorney (and agent-in-fact), solely with respect to
the matters set forth in this Section 12.1, and Agent, or Agent's agent, may,
without notice to any Borrower and in such Borrower's or Agent's name, but at
the cost and expense of such Borrower:
12.1.1. At such time or times as Agent or said agent, in its
sole discretion, may determine, endorse such Borrower's name on any
checks, notes, acceptances, drafts, money orders or any other evidence
of payment or proceeds of the Collateral which come into the possession
of Agent or under Agent's control.
12.1.2. At such time or times upon or after the occurrence
and during the continuance of an Event of Default (provided that the
occurrence of an Event of Default shall not be required with respect to
clauses (iv), (vi), (viii) and (ix) below), as Agent or its agent in
its sole discretion may determine: (i) demand payment of the Accounts
from the Account Debtors, enforce payment of the Accounts by legal
proceedings or otherwise, and generally exercise all of such Borrower's
rights and remedies with respect to the collection of the Accounts;
(ii) settle, adjust, compromise, discharge or release any of the
Accounts or other Collateral or any legal proceedings brought to
collect any of the Accounts or other Collateral; (iii) sell or assign
any of the Accounts and other Collateral upon such terms, for such
amounts and at such time or times as Agent deems advisable, and at
Agent's option, with all warranties regarding the Collateral
disclaimed; (iv) take control, in any manner, of
-78-
any item of payment or proceeds relating to any Collateral; (v)
prepare, file and sign such Borrower's name to a proof of claim in
bankruptcy or similar document against any Account Debtor or to any
notice of lien, assignment or satisfaction of lien or similar document
in connection with any of the Collateral; (vi) receive, open and
dispose of all mail addressed to such Borrower and notify postal
authorities to change the address for delivery thereof to such address
as Agent may designate; (vii) endorse the name of such Borrower upon
any of the items of payment or proceeds relating to any Collateral and
deposit the same to the account of Agent on account of the Obligations;
(viii) endorse the name of such Borrower upon any chattel paper,
document, instrument, invoice, freight ▇▇▇▇, ▇▇▇▇ of lading or similar
document or agreement relating to the Accounts, Inventory and any other
Collateral; (ix) use such Borrower's stationery and sign the name of
such Borrower to verifications of the Accounts and notices thereof to
Account Debtors; (x) use the information recorded on or contained in
any data processing equipment and Computer Hardware and Software
relating to the Accounts, Inventory, Equipment and any other
Collateral; (xi) make and adjust claims under policies of insurance;
and (xii) do all other acts and things necessary, in Agent's
determination, to fulfill such Borrower's obligations under this
Agreement.
The power of attorney granted hereby shall constitute a power
coupled with an interest and shall be irrevocable.
12.2. Indemnity.
Each Borrower hereby agrees to jointly and severally indemnify
Agent, Arranger and each Lender (and each of their Affiliates), and each of
their respective officers, directors, employees, agents and advisors and hold
Agent, Arranger and each Lender (and each of their Affiliates) and each of their
respective officers, directors, employees, agents and advisors, harmless from
and against any liability, loss, damage, suit, action or proceeding ever
suffered or incurred by any such Person (including reasonable attorneys fees and
legal expenses) as the result of such Borrower's failure to observe, perform or
discharge such Borrower's duties hereunder or arising from or relating to this
Agreement, the other Loan Documents or the transactions contemplated hereby or
thereby, except those determined by a court of competent jurisdiction in a final
nonappealable judgment to have arisen out of the gross negligence or willful
misconduct of any such Person. In addition, Borrowers shall jointly and
severally defend Agent, Arranger and each Lender (and each of their Affiliates),
and each of their respective officers, directors, employees, agents and advisors
against and save it harmless from all claims of any Person with respect to the
Collateral (except those determined by a court of competent jurisdiction in a
final nonappealable judgment to have arisen out of the gross negligence or
intentional misconduct of any such Person). Without limiting the generality of
the foregoing, Borrowers shall jointly and severally indemnify and hold harmless
Agent and each Lender (and each of their Affiliates), and each of their
respective officers, directors, employees, agents and advisors from and against
any loss, damage, cost, expense or liability directly or indirectly arising out
of or under the Environmental Laws, or attributable to the use, generation,
storage, release, threatened release, discharge, disposal or presence of any
Hazardous Materials, except for those losses, damages, costs, expenses or
liabilities determined
-79-
by a court of competent jurisdiction in a final nonappealable judgment to have
arisen out of the gross negligence or willful misconduct of any such Person.
Notwithstanding any contrary provision in this Agreement, the obligation of each
Borrower under this Section 12.2 shall survive the payment in full of the
Obligations and the termination of this Agreement.
12.3. Sale of Interest.
No Borrower may sell, assign or transfer any interest in this
Agreement, any of the other Loan Documents, or any of the Obligations, or any
portion thereof, including, without limitation, such Borrower's rights, title,
interests, remedies, powers, and duties hereunder or thereunder.
12.4. Severability.
Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
12.5. Successors and Assigns.
This Agreement, the Other Agreements and the Security
Documents shall be binding upon and inure to the benefit of the successors and
assigns of Borrowers, Agent and each Lender permitted under Section 11.9 hereof.
12.6. Cumulative Effect; Conflict of Terms.
The provisions of the Other Agreements and the Security
Documents are hereby made cumulative with the provisions of this Agreement.
Except as otherwise provided in any of the other Loan Documents by specific
reference to the applicable provision of this Agreement, if any provision
contained in this Agreement is in direct conflict with, or inconsistent with,
any provision in any of the other Loan Documents, the provision contained in
this Agreement shall govern and control.
12.7. Execution in Counterparts.
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.
12.8. Notice.
Except as otherwise provided herein, all notices, requests and
demands to or upon a party hereto, to be effective, shall be in writing, return
receipt requested, by personal delivery against receipt, by overnight courier or
by facsimile and, unless otherwise expressly
-80-
provided herein, shall be deemed to have been validly served, given, delivered
or received, as applicable, immediately when delivered against receipt, one
Business Day after deposit with an overnight courier or, in the case of
facsimile notice, when sent, addressed as follows:
If to Agent: Fleet Capital Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Loan Administration Manager
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Goldberg, Kohn, Bell, Black,
▇▇▇▇▇▇▇▇▇▇ & Moritz, Ltd.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Borrower: c/o Wabash National Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. Black
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as each party may designate for itself by notice given
in accordance with this Section 12.8; provided, however, that any notice,
request or demand to or upon Agent or a Lender pursuant to subsection 3.1.1 or
4.2.2 hereof shall not be effective until received by Agent or such Lender.
12.9. Consent.
Whenever Agent's, Majority Lenders' or all Lenders' consent is
required to be obtained under this Agreement, any of the Other Agreements or any
of the Security Documents as a condition to any action, inaction, condition or
event, except as otherwise specifically provided herein, Agent, Majority Lenders
or all Lenders, as applicable, shall be authorized to give or withhold such
consent in their sole and absolute discretion and to condition its consent upon
the giving of additional Collateral security for the Obligations, the payment of
money or any other matter.
-81-
12.10. Credit Inquiries.
Each Borrower hereby authorizes and permits Agent and each
Lender to respond to usual and customary credit inquiries from third parties
concerning such Borrower or any of its Subsidiaries.
12.11. Time of Essence.
Time is of the essence of this Agreement, the Other Agreements
and the Security Documents.
12.12. Entire Agreement.
This Agreement and the other Loan Documents, together with all
other instruments, agreements and certificates executed by the parties in
connection therewith or with reference thereto, embody the entire understanding
and agreement between the parties hereto and thereto with respect to the subject
matter hereof and thereof and supersede all prior agreements, understandings and
inducements, whether express or implied, oral or written.
12.13. Interpretation.
No provision of this Agreement or any of the other Loan
Documents shall be construed against or interpreted to the disadvantage of any
party hereto by any court or other governmental or judicial authority by reason
of such party having or being deemed to have structured or dictated such
provision.
12.14. Confidentiality.
Agent and each Lender shall hold all nonpublic information
obtained pursuant to the requirements of this Agreement in accordance with
Agent's and such Lender's customary procedures for handling confidential
information of this nature and in accordance with safe and sound banking
practices and in any event may make disclosure reasonably required by a
prospective participant or assignee in connection with the contemplated
participation or assignment or as required or requested by any governmental
authority or representative thereof or pursuant to legal process or in
connection with the exercise of remedies and shall require any such participant
or assignee to agree to comply with this Section 12.14. In any event, however,
Agent, each Lender, Borrowers and their Affiliates may disclose to any and all
Persons, without limitation of any kind, the tax treatment and tax structure of
the transactions contemplated hereby and by the other Loan Documents and all
materials of any kind (including opinions or other tax analyses) that are
provided to Agent, any Lender, any Borrower or their Affiliates relating to such
tax treatment and tax structure; it being understood that this authorization is
retroactively effective to the commencement of the first discussions between or
among any of the parties regarding the transactions contemplated hereby and by
the other Loan Documents.
-82-
12.15. GOVERNING LAW; CONSENT TO FORUM.
THIS AGREEMENT HAS BEEN NEGOTIATED, EXECUTED AND DELIVERED IN
AND SHALL BE DEEMED TO HAVE BEEN MADE IN CHICAGO, ILLINOIS. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS; PROVIDED, HOWEVER, THAT IF ANY OF THE COLLATERAL SHALL BE LOCATED IN
ANY JURISDICTION OTHER THAN ILLINOIS, THE LAWS OF SUCH JURISDICTION SHALL GOVERN
THE METHOD, MANNER AND PROCEDURE FOR FORECLOSURE OF AGENT'S LIEN UPON SUCH
COLLATERAL AND THE ENFORCEMENT OF AGENT'S OTHER REMEDIES IN RESPECT OF SUCH
COLLATERAL TO THE EXTENT THAT THE LAWS OF SUCH JURISDICTION ARE DIFFERENT FROM
OR INCONSISTENT WITH THE LAWS OF ILLINOIS. AS PART OF THE CONSIDERATION FOR NEW
VALUE RECEIVED, AND REGARDLESS OF ANY PRESENT OR FUTURE DOMICILE OR PRINCIPAL
PLACE OF BUSINESS OF ANY BORROWER, AGENT OR ANY LENDER, EACH BORROWER HEREBY
CONSENTS AND AGREES THAT THE CIRCUIT COURT OF ▇▇▇▇ COUNTY, ILLINOIS, OR, AT
AGENT'S OPTION, THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS, EASTERN DIVISION, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN BORROWERS ON THE ONE HAND AND AGENT OR
ANY LENDER ON THE OTHER HAND PERTAINING TO THIS AGREEMENT OR TO ANY MATTER
ARISING OUT OF OR RELATED TO THIS AGREEMENT; PROVIDED, THAT AGENT AND LENDERS
ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF SUCH JURISDICTION AND; PROVIDED, FURTHER THAT NOTHING IN THIS
AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT OR
TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL
OR ANY OTHER SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF AGENT. EACH BORROWER EXPRESSLY SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND EACH BORROWER HEREBY WAIVES ANY OBJECTION WHICH SUCH BORROWER MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH BORROWER HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH BORROWER AT THE ADDRESS SET FORTH
IN THIS AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE
EARLIER OF SUCH BORROWER'S ACTUAL RECEIPT THEREOF OR 3 DAYS
-83-
AFTER DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID. NOTHING IN THIS
AGREEMENT SHALL BE DEEMED OR OPERATE TO AFFECT THE RIGHT OF AGENT OR ANY LENDER
TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW, OR TO PRECLUDE THE
ENFORCEMENT BY AGENT OR ANY LENDER OF ANY JUDGMENT OR ORDER OBTAINED IN SUCH
FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE SAME IN ANY
OTHER APPROPRIATE FORUM OR JURISDICTION.
12.16. WAIVERS BY BORROWERS.
EACH BORROWER WAIVES (i) THE RIGHT TO TRIAL BY JURY (WHICH
AGENT AND EACH LENDER HEREBY ALSO WAIVES) IN ANY ACTION, SUIT, PROCEEDING OR
COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO ANY OF THE LOAN DOCUMENTS,
THE OBLIGATIONS OR THE COLLATERAL; (ii) PRESENTMENT, DEMAND AND PROTEST AND
NOTICE OF PRESENTMENT, PROTEST, DEFAULT, NON PAYMENT, MATURITY, RELEASE,
COMPROMISE, SETTLEMENT, EXTENSION OR RENEWAL OF ANY OR ALL COMMERCIAL PAPER,
ACCOUNTS, CONTRACT RIGHTS, DOCUMENTS, INSTRUMENTS , CHATTEL PAPER AND GUARANTIES
AT ANY TIME HELD BY AGENT OR ANY LENDER ON WHICH SUCH BORROWER MAY IN ANY WAY BE
LIABLE AND HEREBY RATIFIES AND CONFIRMS WHATEVER AGENT OR ANY LENDER MAY DO IN
THIS REGARD; (iii) NOTICE PRIOR TO AGENT'S TAKING POSSESSION OR CONTROL OF THE
COLLATERAL OR ANY BOND OR SECURITY WHICH MIGHT BE REQUIRED BY ANY COURT PRIOR TO
ALLOWING AGENT TO EXERCISE ANY OF AGENT'S REMEDIES; (iv) THE BENEFIT OF ALL
VALUATION, APPRAISEMENT AND EXEMPTION LAWS; (v) NOTICE OF ACCEPTANCE HEREOF AND
(vi) EXCEPT AS PROHIBITED BY LAW, ANY RIGHT TO CLAIM OR RECOVER ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. EACH BORROWER ACKNOWLEDGES THAT THE FOREGOING
WAIVERS ARE A MATERIAL INDUCEMENT TO AGENT'S AND EACH LENDER'S ENTERING INTO
THIS AGREEMENT AND THAT AGENT AND EACH LENDER IS RELYING UPON THE FOREGOING
WAIVERS IN ITS FUTURE DEALINGS WITH SUCH BORROWER. EACH BORROWER WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THE FOREGOING WAIVERS WITH ITS LEGAL COUNSEL AND
HAS KNOWINGLY AND VOLUNTARILY WAIVED ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY
BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
12.17. Advertisement.
Each Borrower hereby authorizes Agent to publish the name of
such Borrower and the amount of the credit facility provided hereunder in any
"tombstone" or comparable
-84-
advertisement which Agent elects to publish. In addition, each Borrower agrees
that, notwithstanding the provisions of Section 12.14, Agent may provide lending
industry trade organizations with information necessary and customary for
inclusion in league table measurements after the Closing Date.
12.18. English Language.
The parties hereby confirm their express wish that this
Agreement and all documents and agreements directly and indirectly related
thereto, including notices, be drawn up in English. Notwithstanding such express
wish, the parties agree that any of such documents, agreements and notices or
any part thereof or of this Agreement may be drawn up in French. Les parties
reconnaissent leur volonte expresse que la presente convention ainsi que tous
les documents et conventions qui s'y rattachent directement ou indirectement, y
compris ▇▇▇ ▇▇▇▇, soient rediges en langue anglaise. Nonobstant telle volonte
expresse, les parties conviennent que n'importe quelle desdits documents,
conventions et avis ou toute partie de ceux-ci ou de cette convention puissent
etre rediges en langue francaise.
-85-
IN WITNESS WHEREOF, this Agreement has been duly executed on
the day and year specified at the beginning of this Agreement.
BORROWERS:
WABASH NATIONAL CORPORATION
By________________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. Black
Its Vice President and Treasurer
WABASH NATIONAL, L.P.
By________________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. Black
Its Vice President and Treasurer
WNC CLOUD MERGER SUB, INC.
By________________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. Black
Its Authorized Representative
FTSI DISTRIBUTION COMPANY, L.P.
By________________________________________
▇▇▇▇▇▇▇▇▇▇▇ ▇. Black
Its Authorized Representative
[SIGNATURE PAGES TO WABASH - LOAN AND SECURITY AGREEMENT]
-1-
FLEET CAPITAL CORPORATION,
as Agent and as a Lender
By_________________________________________
Title______________________________________
Revolving Loan Commitment: $39,396,668.16
Term Loan Commitment: $10,603,331.84
[SIGNATURE PAGES TO WABASH - LOAN AND SECURITY AGREEMENT]
-2-
NATIONAL CITY COMMERCIAL FINANCE, INC.,
as Syndication Agent and as a Lender
By_________________________________________
Title______________________________________
Revolving Loan Commitment: $29,941,467.81
Term Loan Commitment: $8,058,532.19
[SIGNATURE PAGES TO WABASH - LOAN AND SECURITY AGREEMENT]
-3-
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Documentation Agent and as a Lender
By________________________________________
Title_____________________________________
Revolving Loan Commitment: $27,577,667.72
Term Loan Commitment: $7,422,332,28
[SIGNATURE PAGES TO WABASH - LOAN AND SECURITY AGREEMENT]
-4-
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Documentation Agent and as a Lender
By_________________________________________
Title______________________________________
Revolving Loan Commitment: $27,577,677.72
Term Loan Commitment: $7,422,332.28
[SIGNATURE PAGES TO WABASH - LOAN AND SECURITY AGREEMENT]
-▇-
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL, a Division of
▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial Services, Inc.
as a Lender
By____________________________________________
Title_________________________________________
Revolving Loan Commitment: $18,201,260.69
Term Loan Commitment: $4,898,739.31
[SIGNATURE PAGES TO WABASH - LOAN AND SECURITY AGREEMENT]
-6-
WASHINGTON MUTUAL BANK,
as a Lender
By_________________________________________
Title______________________________________
Revolving Loan Commitment: $8,667,267.00
Term Loan Commitment: $2,332,733.00
[SIGNATURE PAGES TO WABASH - LOAN AND SECURITY AGREEMENT]
-7-
FIFTH THIRD BANK,
as a Lender
By_________________________________________
Title______________________________________
Revolving Loan Commitment: $11,819,000.45
Term Loan Commitment: $3,180,999.55
[SIGNATURE PAGES TO WABASH - LOAN AND SECURITY AGREEMENT]
-8-
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By_________________________________________
Title______________________________________
Revolving Loan Commitment: $11,819,000.45
Term Loan Commitment: $3,180,999.55
[SIGNATURE PAGES TO WABASH - LOAN AND SECURITY AGREEMENT]
-9-
APPENDIX A
GENERAL DEFINITIONS
When used in the Loan and Security Agreement dated as of
September 23, 2003, by and among FLEET CAPITAL CORPORATION, individually as a
Lender and as Agent for Lenders, NATIONAL CITY COMMERCIAL FINANCE, INC.,
individually as a Lender and as Syndication Agent for Lenders, GENERAL ELECTRIC
CAPITAL CORPORATION, as a Documentation Agent and as a Lender, WACHOVIA BANK,
NATIONAL ASSOCIATION, as a Documentation Agent and as a Lender, FLEET
SECURITIES, INC., as Arranger, the other financial institutions which are or
become parties thereto as Lenders and WABASH NATIONAL CORPORATION AND EACH
SUBSIDIARY OF WABASH NATIONAL CORPORATION IDENTIFIED ON THE SIGNATURES PAGES
THERETO AS A BORROWER, (a) the terms Account, Certificated Security, Chattel
Paper, Commercial Tort Claims, Deposit Account, Document, Electronic Chattel
Paper, Equipment, Financial Asset, Fixture, General Intangibles, Goods,
Instruments, Inventory, Investment Property, Letter-of-Credit Rights, Payment
Intangibles, Proceeds, Security Entitlement, Software, Supporting Obligations,
Tangible Chattel Paper and Uncertificated Security have the respective meanings
assigned thereto under the UCC; (b) all terms reflecting Collateral having the
meanings assigned thereto under the UCC shall be deemed to mean such Property,
whether now owned or hereafter created or acquired by a Borrower or in which
such Borrower now has or hereafter acquires any interest; (c) capitalized terms
which are not otherwise defined have the respective meanings assigned thereto in
said Loan and Security Agreement; and (d) the following terms shall have the
following meanings (terms defined in the singular to have the same meaning when
used in the plural and vice versa):
Account Debtor - any Person who is or may become obligated
under or on account of any Account, Contract Right, Chattel Paper or
General Intangible.
Affiliate - a Person (other than a Subsidiary): (i) which
directly or indirectly through one or more intermediaries controls, or
is controlled by, or is under common control with, a Person; (ii) which
beneficially owns or holds 5% or more of any class of the Voting Stock
of a Person; or (iii) 5% or more of the Voting Stock (or in the case of
a Person which is not a corporation, 5% or more of the equity interest)
of which is beneficially owned or held by a Person or a Subsidiary of a
Person.
Agent - Fleet Capital Corporation in its capacity as agent for
the Lenders under the Agreement and any successor in that capacity
appointed pursuant to Section 11.11 of the Agreement.
Agent Loans - as defined in subsection 1.1.5 of the Agreement.
Aggregate Percentage - with respect to each Lender, the
percentage equal to the quotient of (i) such Lender's Loan Commitment
divided by (ii) the aggregate of all Loan Commitments.
Agreed Alternate Currency - as defined in Section 1.5 of the
Agreement.
Agreement - the Loan and Security Agreement referred to in the
first sentence of this Appendix A, all Exhibits and Schedules thereto
and this Appendix A, as each of the same may be amended from time to
time.
Apex - Apex Trailer Leasing & Rentals, L.P., a Delaware
limited partnership.
Apex Trailer Inventory - Inventory of Apex consisting of
trailers subject to a lease to a third Person.
Apex Trailer Leases - lease agreements whereby Apex has leased
Apex Trailer Inventory to a third Person.
Apex Sale - the sale of substantially all of the assets,
properties and rights of Apex, WNTC, Wabash and WTSI Technology Corp.
related to the business of renting and leasing over-the-road and
storage trailers and the business of wholesaling, retailing,
distributing and marketing aftermarket, replacement and warranty parts
and accessories for trailers.
Apex Sale Documents - that certain Asset Purchase Agreement,
dated as of July 22, 2003, by and among Apex, WNTC, Wabash and WTSI
Technology Corp., on the one hand, and Apex Trailer Leasing & Rental
LLC, Aurora Parts & Accessories LLC and Aurora Trailers Holdings LLC,
on the other hand, and each agreement, instrument or document entered
into in connection therewith.
Applicable Margin - from the Closing Date to, but not
including, the first Adjustment Date (as hereinafter defined) the
percentages set forth below with respect to the Base Rate Revolving
Portion, the Base Rate Term Portion, the LIBOR Revolving Portion, the
LIBOR Term Portion and the Unused Line Fee:
Base Rate Revolving Portion 0.50%
Base Rate Term Portion 0.75%
LIBOR Revolving Portion 2.50%
LIBOR Term Portion 2.75%
Unused Line Fee 0.375%
Notwithstanding the foregoing, each percentage listed above
(other than that applicable to the Unused Line Fee) shall be increased
by 0.25% for the first 180 day period after the Closing Date.
The percentages set forth above will be adjusted 3 days
following delivery by Borrowers to Agent of the financial statements
required to be delivered pursuant to subsection 8.1.3(ii) of the
Agreement for each March 31, June 30, September 30 and December 31
during the Term, commencing with the financial statements required to
be delivered for the month ending March 31, 2004 (each such date, an
"Adjustment Date"), effective prospectively on the first day of the
month immediately following
A-2
such delivery, by reference to the applicable "Financial Measurement"
(as defined below) for the four quarters most recently ending in
accordance with the following:
Base Rate Base Rate LIBOR LIBOR
Revolving Term Revolving Term Unused
Financial Measurement Portion Portion Portion Portion Line Fee
--------------------- ------- ------- ------- ------- --------
Less than 1.75 to 1.00 0.50% 0.75% 2.50% 2.75% 0.500%
Greater than or equal to
1.75 to 1.00 and less than
2.50 to 1.00 0.25% 0.50% 2.25% 2.50% 0.375%
Greater than or equal to
2.50 to 1.00 0.00% 0.25% 2.00% 2.25% 0.375%
provided that, (i) if Borrowers' audited financial statements for any
fiscal year delivered pursuant to subsection 8.1.3(i) of the Agreement
reflect a Financial Measurement that yields a higher Applicable Margin
than that yielded by the monthly financial statements previously
delivered pursuant to subsection 8.1.3(ii) of the Agreement for the
last month of such fiscal year, the Applicable Margin shall be
readjusted retroactively for the period that was incorrectly
calculated, (ii) if Borrowers fail to deliver the financial statements
required to be delivered pursuant to subsection 8.1.3(i) or subsection
8.1.3(ii) of the Agreement on or before the due date thereof, the
Applicable Margin shall automatically adjust to the highest pricing
tier set forth above, effective prospectively from such due date until
the next Adjustment Date and (iii) if on any Adjustment Date an Event
of Default is in existence, the Applicable Margin shall not be lowered
regardless of the Financial Measurement on such Adjustment Date. For
purposes hereof, "Financial Measurement" shall mean the Fixed Charge
Coverage Ratio.
Arranger - Fleet Securities, Inc., in its capacity as Arranger
under the Agreement.
Assignment and Acceptance Agreement - an assignment and
acceptance agreement in the form attached hereto as Exhibit A-2,
pursuant to which a Lender assigns to another Lender all or any portion
of any of such Lender's Revolving Loan Commitment, Term Loan or Term
Loan Commitment, as permitted pursuant to the terms of this Agreement.
Availability - the aggregate amount of additional money which
Borrowers are entitled to borrow from time to time as Revolving Credit
Loans, such amount being the difference derived when the sum of the
principal amount of Revolving Credit Loans then outstanding (including
any amounts which Agent or any Lender may have paid for the account of
any Borrower pursuant to any of the Loan Documents and which have not
been reimbursed by Borrowers), the sum of the Dollar Equivalent of the
LC Amount and the LC Obligations and any reserves is subtracted from
the Borrowing Base. If the amount outstanding is equal to or greater
than the Borrowing Base, Availability is 0.
A-3
Bank - Fleet National Bank.
Base Rate - the rate of interest announced or quoted by Bank
from time to time as its prime rate for commercial loans, whether or
not such rate is the lowest rate charged by Bank to its most preferred
borrowers (and, if such prime rate for commercial loans is discontinued
by Bank as a standard, a comparable reference rate designated by Bank
as a substitute therefor).
Base Rate Portion - a Base Rate Term Portion or a Base Rate
Revolving Portion.
Base Rate Revolving Portion - that portion of the Revolving
Credit Loans that is not subject to a LIBOR Option.
Base Rate Term Portion - that portion of the Term Loan that is
not subject to a LIBOR Option.
▇▇▇▇ and Hold Inventory - finished goods Inventory of a
Company as to which a Company has issued an invoice for payment to the
customer, but which, pursuant to such customers' instructions or such
Company's normal business practices, has not yet been shipped to such
customer and title to which has not yet passed to such customer.
Borrowing Base - as at any date of determination thereof, an
amount equal to the lesser of:
(i) the Revolving Credit Maximum Amount; or
(ii) an amount equal to the sum of
(a) 85% of the net amount of Eligible
Accounts outstanding at such date;
plus
(b) the least of (i) $120,000,000, (ii)
the sum of (A) 85% of the net
orderly liquidation percentage of
Eligible Inventory at such date and
(B) the lesser of (1) 30% of the
total amount of the Borrowing Base
derived from this clause (b) and
(2) 85% of the net orderly
liquidation value of Eligible
Trailer Inventory at such date or
(iii) the sum of (A) 75% of the
value of Eligible ▇▇▇▇ and Hold
Inventory at such date, plus (B)
65% of the value of Eligible
Inventory consisting of raw
materials, parts, or finished goods
(including ▇▇▇▇ and Hold Inventory
not constituting Eligible ▇▇▇▇ and
Hold Inventory) at such date plus
(C) 40% of the value of Eligible
Inventory consisting of
work-in-process at such date.
A-4
Notwithstanding the foregoing, each percentage contained in
clause (b) above shall be increased by 10% for the first 90 day period
after the Closing Date and 5% for the second 90 day period after the
Closing Date. The limitations set forth in the immediately preceding
sentence may be adjusted downward by Agent, as Agent shall deem
necessary or appropriate in its reasonable credit judgment. For
purposes hereof, (1) the net amount of Eligible Accounts at any time
shall be the face amount of such Eligible Accounts less any and all
returns, rebates, discounts (which may, at Agent's option, be
calculated on shortest terms), credits, allowances or excise taxes of
any nature at any time issued, owing, claimed by Account Debtors,
granted, outstanding or payable in connection with such Accounts at
such time, (2) the amount of Eligible Inventory, Eligible ▇▇▇▇ and Hold
Inventory and Eligible Trailer Inventory shall each be determined on a
first-in, first-out, lower of cost or market basis in accordance with
GAAP, net of intercompany charges, (3) the net orderly liquidation
percentage of Eligible Inventory shall be determined by a third party
appraiser reasonably acceptable to Agent and shall be as reflected in
the most recent appraisal delivered to Agent under this Agreement and
(4) the net orderly liquidation value of Eligible Trailer Inventory
shall be determined by a third party appraiser reasonably acceptable to
Agent and shall be reflected in the most recent appraisal delivered to
Agent under this Agreement.
Borrowing Base Certificate - a certificate by a responsible
officer of Wabash, substantially in the form of Exhibit 8.1.4 (or
another form reasonably acceptable to Agent) setting forth in Dollars
the calculation of the Borrowing Base, including a calculation of each
component thereof, all in such detail as shall be reasonably
satisfactory to Agent. All calculations of the Borrowing Base in
connection with the preparation of any Borrowing Base Certificate shall
originally be made by Wabash and certified to Agent; provided, that
Agent shall have the right to review and adjust, in the exercise of its
reasonable credit judgment, any such calculation after giving notice
thereof to Wabash, (1) to reflect its reasonable estimate of declines
in value of any of the Collateral described therein, and (2) to the
extent that Agent determines that such calculation is not in accordance
with this Agreement.
Breadner Debt - Indebtedness of Wabash Canada to ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ in the amount of $5,000,000 maturing on January 15, 2006.
Business Day - any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of the State of Wisconsin, the
State of Connecticut, the State of Illinois or the State of Indiana or
is a day on which banking institutions located in any of such states
are closed.
Canadian Dollars - the lawful currency of Canada.
Capital Expenditures - expenditures made or liabilities
incurred for the acquisition of any fixed assets or improvements,
replacements, substitutions or additions thereto which have a useful
life of more than one year, including the total principal portion of
Capitalized Lease Obligations.
A-5
Capitalized Lease Obligation - any Indebtedness represented by
obligations under a lease that is required to be capitalized for
financial reporting purposes in accordance with GAAP.
Closing Date - the date on which all of the conditions
precedent in Section 9 of the Agreement are satisfied or waived by
Agent and all Lenders and the initial Loan is made or the initial
Letter of Credit or LC Guaranty is issued under the Agreement.
Cloud Debt - Indebtedness of WNC Cloud and Cloud Oak Flooring
Company, Inc. in the amount of $826,495, comprising bond issuances by
the Arkansas Development Finance Authority as evidenced by those
certain loan agreements, (i) by and between Cloud Corporation and the
Arkansas Development Finance Authority, dated February 1, 1994,
maturing on January 25, 2004 and (ii) by and between Cloud Corporation
and the Arkansas Development Finance Authority dated May 1, 1996,
maturing on April 25, 2006.
Collateral - all of the Property and interests in Property
described in Section 5 of the Agreement, and all other Property and
interests in Property of any Person that now or hereafter secure the
payment and performance of any of the Obligations.
Company - individually, each of each Borrower and Wabash
Canada.
Compliance Certificate - as defined in subsection 8.1.3 of the
Agreement.
Computer Hardware and Software - all of each Borrower's rights
(including rights as licensee and lessee) with respect to (i) computer
and other electronic data processing hardware, including all integrated
computer systems, central processing units, memory units, display
terminals, printers, computer elements, card readers, tape drives, hard
and soft disk drives, cables, electrical supply hardware, generators,
power equalizers, accessories, peripheral devices and other related
computer hardware; (ii) all Software and all software programs designed
for use on the computers and electronic data processing hardware
described in clause (i) above, including all operating system software,
utilities and application programs in any form (source code and object
code in magnetic tape, disk or hard copy format or any other listings
whatsoever); (iii) any firmware associated with any of the foregoing;
and (iv) any documentation for hardware, Software and firmware
described in clauses (i), (ii) and (iii) above, including flow charts,
logic diagrams, manuals, specifications, training materials, charts and
pseudo codes.
Consolidated - the consolidation in accordance with GAAP of
the accounts or other items as to which such term applies.
Contract Right - any right of each Borrower to payment under a
contract for the sale or lease of goods or the rendering of services,
which right is at the time not yet earned by performance.
A-6
Convertible Note Documents - (i) the Convertible Note
Indenture, (ii) the Convertible Notes, (iii) the Registration Rights
Agreement relating to the Convertible Notes and (iv) the Purchase
Agreement relating to the Convertible Notes, together with such other
documents, agreements and instruments executed and delivered from time
to time in connection with the foregoing, in each case as amended from
time to time.
Convertible Note Indenture - that certain Indenture providing
for the issuance of the Convertible Notes between Wabash, as issuer and
the Convertible Note Trustee, dated as of August 1, 2003.
Convertible Note Trustee - Wachovia Bank, National
Association.
Convertible Notes - the 3 1/4% Convertible Senior Notes due
2008 of Wabash issued as of August 1, 2003 pursuant to the Convertible
Bond Documents in the original principal amount of $125,000,000.
Current Assets - at any date means the amount at which all of
the current assets of a Person would be properly classified as current
assets shown on a balance sheet at such date in accordance with GAAP.
Default - an event or condition the occurrence of which would,
with the lapse of time or the giving of notice, or both, become an
Event of Default.
Default Rate - as defined in subsection 2.1.2 of the
Agreement.
Derivative Obligations - every obligation of a Person under
any forward contract, futures contract, exchange contract, swap, option
or other financing agreement or arrangement (including, without
limitation, caps, floors, collars and similar agreement), the value of
which is dependent upon interest rates, currency exchange rates,
commodities or other indices.
Distribution - in respect of any Person means and includes:
(i) the payment of any dividends or other distributions on Securities
(except distributions in such Securities) and (ii) the redemption
(including by way of conversion to another debt or equity Security) or
acquisition of Securities of such Person, as the case may be, unless
made contemporaneously from the net proceeds of the sale of Securities.
Documentation Agents - each of General Electric Capital
Corporation and Wachovia Bank, National Association, in its capacity as
a Documentation Agent for the Lenders under this Agreement.
Dollar Equivalent - the amount of Dollars as of any date of
determination into which Canadian Dollars or amounts denominated in any
Agreed Alternate Currency can be converted or determined in accordance
with Section 1.6 of the Agreement.
Dollars - the lawful currency of the United States.
A-7
Domestic Subsidiary - a Subsidiary incorporated under the laws
of a state of the United States or the District of Columbia.
Dominion Account - a special bank account or accounts of Agent
established by a Company pursuant to subsection 6.2.4 of the Agreement
at banks selected by such Company, but acceptable to Agent in its
reasonable discretion, and over which Agent shall have sole and
exclusive access and control for withdrawal purposes.
Dominion Event - the occurrence of any one of the following:
(a) Availability is less than $15,000,000 for 5 consecutive days; (b)
Availability is at any time less than $10,000,000; (c) an Event of
Default occurs under subsection 10.1.3 because of a breach of Section
8.3 or (d) an Event of Default occurs under subsection 10.1.1.
Dominion Period - the period commencing with prior written
notice by Agent to Borrowers of the occurrence of a Dominion Event and
ending (a) no less than 60 days thereafter and (b) only after such
Dominion Event is no longer in existence or has been waived by Majority
Lenders for a period of at least 60 consecutive days, provided, that no
other Dominion Event has been in existence during such 60 consecutive
day period.
EBITDA - as defined in Exhibit 8.3 to the Agreement.
Eligible Account - an Account arising in the ordinary course
of the business of a Company from the sale of goods or rendition of
services which Agent, in its reasonable credit judgment, deems to be an
Eligible Account. Without limiting the generality of the foregoing, no
Account shall be an Eligible Account if:
(i) it arises out of a sale made or services
rendered by a Company to a Subsidiary of a Company or an
Affiliate of Company or to a Person controlled by an Affiliate
of a Company; or
(ii) it is owing to Wabash Canada to the extent
that the aggregate amount of such Accounts exceed $7,500,000
in the aggregate; or
(iii) it remains unpaid more than 105 days after
the original invoice date shown on the invoice or more than 60
days after the original due date shown on the invoice; or
(iv) the total unpaid Accounts of the Account
Debtor exceed (a) 30% of the net amount of all Eligible
Accounts in the case of ▇▇▇▇▇▇▇▇▇ National, Inc. and its
Affiliates, (b) 30% of the net amount of all Eligible Accounts
in the case of any Account Debtor rated 5A2 or better by Dun &
Bradstreet, and the Affiliates of such Account Debtor or (c)
20% of the net amount of all Eligible Accounts in the case of
any other Account Debtor, but in each case only to the extent
of such excess; or
A-8
(v) any covenant, representation or warranty
contained in the Agreement with respect to such Account has
been breached; or
(vi) except with respect to Accounts owing by an
Account Debtor listed on Exhibit A-1 and as to which Borrowers
have provided Agent with evidence that such Account Debtor has
contractually waived such rights, the Account Debtor is also a
creditor or supplier of a Company or any Subsidiary of a
Company, or the Account Debtor has disputed liability with
respect to such Account, or the Account Debtor has made any
claim with respect to any other Account due from such Account
Debtor to a Company or any Subsidiary of a Company, or the
Account otherwise is or may become subject to right of setoff
by the Account Debtor, provided, that any such Account shall
be eligible to the extent such amount thereof exceeds such
contract, dispute, claim, setoff or similar right; or
(vii) the Account Debtor has commenced a voluntary
case under the federal bankruptcy laws or the Insolvency Laws
of Canada, as now constituted or hereafter amended, or made an
assignment for the benefit of creditors, or a decree or order
for relief has been entered by a court having jurisdiction in
the premises in respect of the Account Debtor in an
involuntary case under the federal bankruptcy laws or the
Insolvency Laws of Canada, as now constituted or hereafter
amended, or any other petition or other application for relief
under the federal bankruptcy laws or the Insolvency Laws of
Canada, as now constituted or hereafter amended, has been
filed against the Account Debtor, or if the Account Debtor has
failed, suspended business, ceased to be Solvent, or consented
to or suffered a receiver, trustee, liquidator or custodian to
be appointed for it or for all or a significant portion of its
assets or affairs; or
(viii) it arises from a sale made or services
rendered to an Account Debtor outside the United States or
Canada, unless the sale is on letter of credit, guaranty or
acceptance terms (with the rights thereunder having been
assigned to Agent), in each case acceptable to Agent in its
reasonable credit judgment; or
(ix) (1) it arises from a sale to the Account
Debtor on a ▇▇▇▇-and-hold, guaranteed sale, sale-or-return,
sale-on-approval, consignment, or any other repurchase or
return basis; or (2) it is subject to a reserve established by
a Company for potential returns or refunds, to the extent of
such reserve; or
(x) the Account Debtor is the United States of
America or any department, agency or instrumentality thereof,
unless the applicable Company assigns its right to payment of
such Account to Agent, in a manner satisfactory to Agent, in
its reasonable credit judgment, so as to comply with the
Assignment of Claims Act of 1940 (31 U.S.C. Section 203 et
seq., as amended); or
A-9
(xi) it is not at all times subject to Agent's
duly perfected, first priority security interest or is subject
to a Lien that is not a Permitted Lien; or
(xii) the goods giving rise to such Account have
not been delivered to and accepted by the Account Debtor or
the services giving rise to such Account have not been
performed by the applicable Borrower and accepted by the
Account Debtor or the Account otherwise does not represent a
final sale; or
(xiii) the Account is evidenced by chattel paper
(including without limitation an Apex Trailer Lease) or an
instrument of any kind, or has been reduced to judgment; or
(xiv) a Company or a Subsidiary of a Company has
made any agreement with the Account Debtor for any extension,
compromise, settlement or modification of the Account or
deduction therefrom, except for discounts or allowances which
are made in the ordinary course of business for prompt payment
and which discounts or allowances are reflected in the
calculation of the face value of each invoice related to such
Account; or
(xv) 50% or more of the Accounts owing from the
Account Debtor are not Eligible Accounts hereunder; or
(xvi) a Company has made an agreement with the
Account Debtor to extend the time of payment thereof; or
(xvii) it represents service charges, late fees or
similar charges; or
(xviii) an invoice has been issued by a Company with
respect thereto, but the underlying Inventory has not yet been
shipped; or
(xix) it represents U.S. federal excise taxes,
state sales or use taxes or Canadian federal GST or similar
provincial sales or service taxes; or
(xx) it arises pursuant to an Apex Trailer Lease;
or
(xxi) it is not otherwise acceptable to Agent in
its reasonable credit judgment.
Eligible ▇▇▇▇ and Hold Inventory - ▇▇▇▇ and Hold Inventory
that (a) would constitute "Eligible Inventory" without the application
of the requirements of clause (i) of the definition thereof, (b) does
not remain on Wabash National, L.P.'s premises for more than 30 days
prior to shipment to the customer thereof and (c) is owned by Wabash
National, L.P.
Eligible Inventory - Inventory of a Company (other than
packaging materials and supplies, tooling, patterns, samples and
literature) which Agent, in its reasonable
A-10
credit judgment, deems to be Eligible Inventory. Without limiting the
generality of the foregoing, no Inventory shall be Eligible Inventory
if:
(i) it consists of ▇▇▇▇ and Hold Inventory, Apex
Trailer Inventory or Trailer Inventory;
(ii) it is not raw materials, work in process
that is, in Agent's opinion, readily marketable in its current
form or finished goods which meet the specifications of the
purchase order or contract for such Inventory, if any; or
(iii) it is not in good, new and saleable
condition; or
(iv) it is slow-moving, obsolete or
unmerchantable; or
(v) it does not meet all standards imposed by
any governmental agency or authority; or
(vi) it does not conform in all respects to any
covenants, warranties and representations set forth in the
Agreement; or
(vii) it is not at all times subject to Agent's
duly perfected, first priority security interest or is subject
to a Lien that is not a Permitted Lien; or
(viii) it is not situated at a location in
compliance with the Agreement, provided that Inventory
situated at a location not owned by a Company, other than
Inventory located at a storage lot, as reported on the most
recent Borrowing Base Certificate delivered to Agent, will be
Eligible Inventory only if Agent has received a satisfactory
landlord's agreement or bailee's letter, as applicable, with
respect to such location; or
(ix) it has been consigned to a Company's
customer; or
(x) it is located outside of the continental
United States of America or Canada; or
(xi) it is in transit; or
(xii) if it is owned by Wabash Canada, its
aggregate value, together with the aggregate value of Eligible
Trailer Inventory owned by Wabash Canada, exceeds $30,000,000;
or
(xiii) it is not otherwise acceptable to Agent in
its reasonable credit judgment.
Eligible Trailer Inventory - Trailer Inventory that would (i)
constitute "Eligible Inventory" without the application of the
requirements of clause (i) of the
A-11
definition thereof and (ii) if it is owned by Wabash Canada, not exceed
$30,000,000 in aggregate value, together with the aggregate value of
Eligible Inventory owned by Wabash Canada.
Environmental Laws - all United States, Canadian and other
federal, state, provincial and local laws, rules, regulations,
ordinances, orders and consent decrees relating to health, safety and
environmental matters.
ERISA - the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute, and all rules and regulations
from time to time promulgated thereunder.
Event of Default - as defined in Section 10.1 of the
Agreement.
Excess Cash Flow - with respect to any fiscal year of Wabash,
commencing with the fiscal year ending December 31, 2004, 25% of the
amount equal to the sum of EBITDA minus the sum of cash taxes paid,
preferred stock dividends paid, regularly scheduled payments of
principal on Indebtedness for Money Borrowed, cash interest payments
made and Capital Expenditures which are not financed for such fiscal
year, all determined for Wabash and its Subsidiaries on a Consolidated
basis in accordance with GAAP.
Fee Letter - as defined in Section 2.3 of the Agreement.
Fixed Charge Coverage Ratio - as defined in Exhibit 8.3 to the
Agreement.
Fleet Amtrak Debt - Indebtedness of Apex to Fleet in the
amount of $4,187,311 pursuant to that certain Master Lease Agreement by
and between BancBoston Leasing Inc. and Wabash National Finance
Corporation dated as of September 5, 1997, and that certain Equipment
Schedule No. C-03, by and between BancBoston Leasing Inc. and Wabash
National Finance Corporation dated as of September 5, 1997, maturing on
March 31, 2005.
Fleet Rocor Debt - Indebtedness of Apex to Fleet in the amount
of $688,984 pursuant to that certain Master Lease Agreement by and
between BancBoston Leasing Inc. and Wabash National Finance Corporation
dated as of September 5, 1997, that certain Equipment Schedule No.
A-01, by and between BancBoston Leasing Inc. and Wabash National
Finance Corporation dated as of September 5, 1997, and that certain
Equipment Schedule No. B-02, by and between BancBoston Leasing Inc. and
Wabash National Finance Corporation dated as of September 5, 1997, and
maturing on September 5, 2004 as it relates to Equipment Schedule No.
A-01 and August 5, 2005 as it relates to Equipment Schedule No. B-02.
GAAP - generally accepted accounting principles in the United
States of America in effect from time to time.
A-12
Guarantors - each Subsidiary Guarantor and each other Person
who now or hereafter guarantees payment or performance of the whole or
any part of the Obligations.
Guaranty Agreements - the Continuing Guaranty Agreement which
is to be executed on the Closing Date by each Subsidiary Guarantor, in
form and substance satisfactory to Agent, together with each other
guaranty hereafter executed by any Guarantor.
Hazardous Materials - 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 Property or to the indoor or outdoor environment.
Inactive Subsidiaries - collectively, WNC Receivables
Management Corp., WNC Receivables LLC, Wabash Financing, LLC and Wabash
do Brasil.
Indebtedness - as applied to a Person means, without
duplication:
(i) all items which in accordance with GAAP
would be included in determining total liabilities as shown on
the liability side of a balance sheet of such Person as at the
date as of which Indebtedness is to be determined, including,
without limitation, Capitalized Lease Obligations;
(ii) all obligations of other Persons which such
Person has guaranteed;
(iii) all reimbursement obligations in connection
with letters of credit or letter of credit guaranties issued
for the account of such Person;
(iv) Derivative Obligations; and
(v) in the case of Borrowers (without
duplication), the Obligations.
Insolvency Laws of Canada - each of the Bankruptcy and
Insolvency Act (Canada) and the Companies Creditors' Arrangement Act
(Canada), each as now and hereafter in effect, any successors to such
statutes and any other applicable insolvency or other similar law of
any jurisdiction including, without limitation, any law of any
jurisdiction permitting a debtor to obtain a stay or a compromise of
the claims of its creditors against it.
Intellectual Property - all past, present and future: trade
secrets, know-how and other proprietary information; trademarks,
internet domain names, service marks, trade dress, trade names,
business names, designs, logos, slogans (and all translations,
adaptations, derivations and combinations of the foregoing) indicia and
other source and/or business identifiers, and the goodwill of the
business relating thereto and all registrations or applications for
registrations which have heretofore been or may hereafter be issued
thereon throughout the world; copyrights (including copyrights for
A-13
computer programs) and copyright registrations or applications for
registrations which have heretofore been or may hereafter be issued
throughout the world and all tangible property embodying the
copyrights, unpatented inventions (whether or not patentable); patent
applications and patents; industrial design applications and registered
industrial designs; license agreements related to any of the foregoing
and income therefrom; books, records, writings, computer tapes or
disks, flow diagrams, specification sheets, computer software, source
codes, object codes, executable code, data, databases and other
physical manifestations, embodiments or incorporations of any of the
foregoing; the right to ▇▇▇ for all past, present and future
infringements of any of the foregoing; all other intellectual property;
and all common law and other rights throughout the world in and to all
of the foregoing.
Intercompany Loans - as defined in subsection 8.2.2 of the
Agreement.
Interest Period - as applicable to any LIBOR Portion, a period
commencing on the date such LIBOR Portion is advanced, continued or
converted, and ending on the date which is one (1) month, two (2)
months, three (3) months, or six (6) months later, as may then be
requested by Borrowers; provided that unless Agent notifies Borrowers
that the initial syndication of the Loan commitments has been
completed, each Interest Period commencing (a) within the first 60 days
after the Closing Date shall be a period of 1 month and (b) thereafter
shall be a period of 7 days; and provided further that (i) any Interest
Period which would otherwise end on a day which is not a Business Day
shall end in the next preceding or succeeding Business Day as is
Agent's custom in the market to which such LIBOR Portion relates (as
communicated by Agent to Lenders from time to time); (ii) there remains
a minimum of one (1) month, two (2) months, three (3) months or six (6)
months (depending upon which Interest Period a Borrower selects) in the
Term, unless Borrowers and Lenders have agreed to an extension of the
Term beyond the expiration of the Interest Period in question; (iii)
all Interest Periods of the same duration which commence on the same
date shall end on the same date; and (iv) with respect to any LIBOR
Term Portion, no applicable Interest Period shall extend beyond the
scheduled installment payment date for such LIBOR Term Portion.
Judgment Conversion Date - as defined in Section 1.7 of the
Agreement.
Judgment Currency - as defined in Section 1.7 of the
Agreement.
LC Amount - at any time, the aggregate undrawn available
amount of all Letters of Credit and LC Guaranties then outstanding.
LC Guaranty - any guaranty pursuant to which Agent or any
Affiliate of Agent shall guaranty the payment or performance by a
Borrower of its reimbursement obligation under any letter of credit.
LC Obligations - Any Obligations that arise from any draw
against any Letter of Credit or against any letter of credit supported
by an LC Guaranty.
A-14
Letter of Credit - any standby or documentary letter of credit
issued by Agent or any Affiliate of Agent for the account of a
Borrower.
Leverage Ratio - as defined in Exhibit 8.3 to the Agreement.
LIBOR - as applicable to any LIBOR Portion, for the applicable
Interest Period, the rate per annum (rounded upward, if necessary, to
the nearest 1/8 of one percent) as determined on the basis of the
offered rates for deposits in U.S. dollars, for a period of time
comparable to such Interest Period which appears on the Telerate page
3750 as of 11:00 a.m. (London time) on the day that is two (2) London
Banking Days preceding the first day of such Interest Period; provided,
however, if the rate described above does not appear on the Telerate
System on any applicable interest determination date, the LIBOR shall
be the rate (rounded upwards as described above, if necessary) for
deposits in U.S. dollars for a period substantially equal to the
Interest Period on the Reuters Page "LIBO" (or such other page as may
replace the LIBO Page on that service for the purpose of displaying
such rates), as of 11:00 a.m. (London Time), on the day that is two (2)
London Banking Days prior to the first day of such Interest Period. If
both the Telerate and Reuters systems are unavailable, then the rate
for that date will be determined on the basis of the offered rates for
deposits in U.S. dollars for a period of time comparable to such
Interest Period which are offered by four (4) major banks in the London
interbank market at approximately 11:00 a.m. (London time), on the day
that is two (2) London Banking Days preceding the first day of such
Interest Period as selected by Agent. The principal London office of
each of the major London banks so selected will be requested to provide
a quotation of its U.S. dollar deposit offered rate. If at least two
(2) such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations. If fewer than two quotations are
provided as requested, the rate for that date will be determined on the
basis of the rates quoted for loans in U.S. dollars to leading European
banks for a period of time comparable to such Interest Period offered
by major banks in New York City at approximately 11:00 a.m. (New York
City time), on the day that is two (2) London Banking Days preceding
the first day of such Interest Period. In the event that Agent is
unable to obtain any such quotation as provided above, it will be
determined that LIBOR pursuant to a Interest Period cannot be
determined. In the event that the Board of Governors of the Federal
Reserve System shall impose a Reserve Percentage with respect to LIBOR
deposits of Bank then for any period during which such Reserve
Percentage shall apply, LIBOR shall be equal to the amount determined
above divided by an amount equal to 1 minus the Reserve Percentage.
LIBOR Interest Payment Date - the first day of each calendar
month during the applicable Interest Period and the last day of the
applicable Interest Period.
LIBOR Option - the option granted pursuant to Section 3.1 of
the Agreement to have the interest on all or any portion of the
principal amount of the Revolving Credit Loans or the Term Loan based
on the LIBOR.
A-15
LIBOR Portion - a LIBOR Revolving Portion or a LIBOR Term
Portion.
LIBOR Request - a notice in writing (or by telephone confirmed
electronically or by telecopy or other facsimile transmission on the
same day as the telephone request) from a Borrower to Agent requesting
that interest on a Revolving Credit Loan or all or any portion of the
Term Loan be based on the LIBOR, specifying: (i) the first day of the
Interest Period (which shall be a Business Day); (ii) the length of the
Interest Period; (iii) whether the LIBOR Portion is a new Loan, a
conversion of a Base Rate Portion, or a continuation of a LIBOR
Portion, and (iv) the dollar amount of the LIBOR Portion, which shall
be in an amount not less than $1,000,000 or an integral multiple of
$100,000 in excess thereof.
LIBOR Revolving Portion - that portion of the Revolving Credit
Loans specified in a LIBOR Request (including any portion of Revolving
Credit Loans which is being borrowed by a Borrower concurrently with
such LIBOR Request) which, as of the date of the LIBOR Request
specifying such LIBOR Revolving Portion, has met the conditions for
basing interest on the LIBOR in Section 3.1 of the Agreement and the
Interest Period of which has not terminated.
LIBOR Term Portion - that portion of the Term Loan specified
in a LIBOR Request which, as of the date of the LIBOR Request
specifying such LIBOR Term Portion, has met the conditions for basing
interest on the LIBOR in Section 3.1 of the Agreement and the Interest
Period of which has not terminated.
Lien - any interest in Property (whether legal or equitable)
securing an obligation owed to, or a claim by, a Person other than the
owner of the Property, whether such interest is based on common law,
statute or contract. The term "Lien" shall also include rights of set
off, rights of seller under conditional sales contracts or title
retention agreements, reservations, exceptions, encroachments,
easements, rights-of-way, covenants, conditions, restrictions, leases
and other title exceptions, encumbrances and security interests
affecting Property. For the purpose of the Agreement, each Borrower
shall be deemed to be the owner of any Property which it has acquired
or holds subject to a conditional sale agreement or other arrangement
pursuant to which title to the Property has been retained by or vested
in some other Person for security purposes.
Loan Account - each loan account established on the books of
Agent pursuant to Section 3.6 of the Agreement.
Loan Commitment - with respect to any Lender, the amount of
such Lender's Revolving Loan Commitment plus such Lender's Term Loan
Commitment.
Loan Documents - the Agreement, the Other Agreements and the
Security Documents.
A-16
Loans - all loans and advances of any kind made by Agent, any
Lender, or any Affiliate of Agent or any Lender, pursuant to the
Agreement.
London Banking Day - any date on which commercial banks are
open for business in London, England.
Majority Lenders - as of any date, Lenders holding 51% of the
Term Loan and Revolving Loan Commitments determined on a combined basis
and following the termination of the Revolving Loan Commitments,
Lenders holding 51% or more of the outstanding Loans, LC Amounts and LC
Obligations not yet reimbursed by a Borrower or funded with a Revolving
Credit Loan; provided, that (i) in each case, if there are 2 or more
Lenders with outstanding Loans, LC Amounts, unfunded and unreimbursed
LC Obligations or Revolving Loan Commitments, at least 2 Lenders shall
be required to constitute Majority Lenders; and (ii) prior to
termination of the Revolving Loan Commitments, if any Lender breaches
its obligation to fund any requested Revolving Credit Loan, for so long
as such breach exists, its voting rights hereunder shall be calculated
with reference to its outstanding Loans, LC Amounts and unfunded and
unreimbursed LC Obligations, rather than its Revolving Loan Commitment.
Material Adverse Effect - (i) a material adverse effect on the
business, condition (financial or otherwise), operation, performance or
properties of Borrowers and their Subsidiaries taken as a whole, (ii) a
material adverse effect on the rights and remedies of Agent or Lenders
under the Loan Documents, or (iii) the material impairment of the
ability of any Borrower or any of its Subsidiaries to perform its
obligations hereunder or under any Loan Document.
Money Borrowed - (i) Indebtedness arising from the lending of
money by any Person to any Borrower or any of its Subsidiaries; (ii)
Indebtedness, whether or not in any such case arising from the lending
by any Person of money to any Borrower or any of its Subsidiaries, (1)
which is represented by notes payable or drafts accepted that evidence
extensions of credit, (2) which constitutes obligations evidenced by
bonds, debentures, notes or similar instruments, or (3) upon which
interest charges are customarily paid (other than accounts payable) or
that was issued or assumed as full or partial payment for Property;
(iii) Indebtedness that constitutes a Capitalized Lease Obligation;
(iv) reimbursement obligations with respect to letters of credit or
guaranties of letters of credit and (v) Indebtedness of any Borrower or
any of its Subsidiaries under any guaranty of obligations that would
constitute Indebtedness for Money Borrowed under clauses (i) through
(iii) hereof, if owed directly by a Borrower or any of its
Subsidiaries. Money Borrowed shall not include trade payables or
accrued expenses.
Mortgage - each mortgage, deed of trust or comparable document
now or at any time hereafter executed and delivered to Agent creating a
Lien on real Property of a Borrower, a Subsidiary Guarantor or any
other Person as security for all or any part of the Obligations.
A-17
Multiemployer Plan - has the meaning set forth in Section
4001(a)(3) of ERISA.
Northern Trust Amtrak Debt - Indebtedness of Apex in the
amount of $9,347,053 to The Northern Trust Company pursuant to that
certain Term Loan Agreement by and between Wabash National Finance
Corporation and The Northern Trust Company dated March 31, 2000,
maturing on May 31, 2008.
Notes - the Revolving Notes and the Term Notes.
Obligations Currency - as defined in Section 1.6 of the
Agreement.
Obligations - all Loans, all LC Obligations, Letters of
Credit, LC Guaranties and all other advances, debts, liabilities,
obligations, covenants and duties, together with all interest, fees and
other charges thereon, owing, arising, due or payable from each
Borrower to Agent, for its own benefit, from each Borrower to Agent for
the benefit of any Lender, from each Borrower to any Lender or any
Affiliate of any Lender, and from each Borrower to Bank or any other
Affiliate of Agent, of any kind or nature, present or future, whether
or not evidenced by any note, guaranty or other instrument, whether
arising under the Agreement, any of the other Loan Documents or any
agreements evidencing the Product Obligations, whether direct or
indirect (including those acquired by assignment), absolute or
contingent, primary or secondary, due or to become due, now existing or
hereafter arising and however acquired, and including, without
limitation, any Product Obligations.
Organizational I.D. Number - with respect to any Person, the
organizational identification number assigned to such Person by the
applicable governmental unit or agency of the jurisdiction of
organization of such Person.
Other Agreements - any and all agreements, instruments and
documents (other than the Agreement and the Security Documents),
heretofore, now or hereafter executed by any Borrower, any of its
Subsidiaries or any Guarantor and delivered to Agent, Bank or any
Lender or any of their respective Affiliates in respect of the
transactions contemplated by the Agreement or any Product Obligations.
Other Indebtedness - collectively, the Breadner Debt, the
Northern Trust Amtrak Debt, the Pitney ▇▇▇▇▇ Rocor Debt, the Fleet
Rocor Debt and the Fleet Amtrak Debt.
Other Indebtedness Documents - collectively, the agreements,
instruments and documents evidencing and securing the Breadner Debt,
the Northern Trust Amtrak Debt, the Cloud Debt, the Pitney ▇▇▇▇▇ Rocor
Debt, the Fleet Rocor Debt and the Fleet Amtrak Debt, respectively.
Overadvance - as defined in subsection 1.1.2 of the Agreement.
A-18
Permitted Acquisition - any acquisition after the Closing Date
by any Borrower or any Subsidiary formed by such Borrower for such
purpose (a "New Subsidiary"), by any means, of all or substantially all
of the assets or capital stock, an operating division or a business
unit, of any Person that is a going concern, that has been incorporated
or organized under the laws of a State within the United States or a
Province within Canada and that is in a similar or related field of
business to a Borrower as of the date hereof, and so long as Agent and
Lenders shall have received evidence at least 3 Business Days prior to
the closing date of such acquisition that such acquisition satisfies
the following conditions:
(a) no Default or Event of Default is in existence at the
time of such acquisition or would be caused thereby
after giving effect thereto;
(b) after giving effect to the proposed acquisition,
Borrowers are in compliance with each of the
financial covenants set forth in Section 8.3 on a pro
forma, but unadjusted, basis through the termination
of the Agreement;
(c) the Person or business to be acquired has shown an
unadjusted positive EBITDA for the twelve month
period ended immediately prior to the date of
acquisition, as determined by Agent;
(d) the Board of Directors and/or owners of the entity
whose business is to be acquired have approved the
proposed transaction;
(e) Agent has received at least ten (10) days' prior
written notice thereof and, as soon as available,
copies of all agreements delivered in connection
therewith;
(f) subsection 8.1.8 of the Agreement has been satisfied
with respect to such assets, Person or New Subsidiary
and, as a result thereof, Agent has obtained a first
priority Lien (subject only to Permitted Liens) on
the applicable stock and assets;
(g) Agent has received a certificate from Wabash's
Treasurer certifying that all of the applicable
conditions contained herein to treating such
acquisition as a Permitted Acquisition have been
satisfied;
(h) if the total consideration (including cash, notes and
other debt, maximum earnouts, consulting and
non-compete payments and the like) (i) for such
acquisition exceeds $10,000,000 or (ii) for such
acquisition, together with all other acquisitions
completed in the current calendar year, exceeds
$10,000,000, in each case Agent and Majority Lenders
have consented in writing to such acquisition;
(i) immediately after completing such acquisition,
Borrowers have Availability of at least $25,000,000;
and
A-19
(j) consents have been obtained in favor of Agent to the
collateral assignment of rights and indemnities under
the related acquisition documents.
In no event shall any Accounts, Inventory, ▇▇▇▇ and Hold Inventory or
Trailer Inventory acquired in connection with a Permitted Acquisition
be deemed eligible for advance hereunder unless and until Agent has
completed (at Borrowers' expense) a Collateral audit and appraisal of
such Property so acquired or to be acquired.
Permitted Liens - any Lien of a kind specified in subsection
8.2.5 of the Agreement.
Permitted Purchase Money Indebtedness - Purchase Money
Indebtedness of any Borrower incurred after the date hereof which is
secured by a Purchase Money Lien and the principal amount of which,
when aggregated with the principal amount of all other such
Indebtedness and Capitalized Lease Obligations of Borrowers and the
Borrowers' Subsidiaries at the time outstanding, does not exceed
$5,000,000. For the purposes of this definition, the principal amount
of any Purchase Money Indebtedness consisting of capitalized leases (as
opposed to operating leases) shall be computed as a Capitalized Lease
Obligation.
Person - an individual, partnership, corporation, limited
liability company, joint stock company, land trust, business trust, or
unincorporated organization, or a government or agency or political
subdivision thereof.
Pitney ▇▇▇▇▇ Rocor Debt - Indebtedness of Apex to Pitney ▇▇▇▇▇
Credit Corporation in the amount of $2,082,386 pursuant to that certain
Master Equipment Lease Agreement No. 0000136 by and between Pitney
▇▇▇▇▇ Credit Corporation and Wabash National Finance Corporation, dated
as of September 30, 1997, and those certain Equipment Schedules A-E, by
and between Pitney ▇▇▇▇▇ Credit Corporation and Wabash National Finance
Corporation, dated as of September 30, 1997, maturing August 30, 2004.
Plan - an employee benefit plan now or hereafter maintained
for employees of any Borrower or any of its Subsidiaries that is
covered by Title IV of ERISA.
Pledge Agreements - collectively, (i) the Pledge Agreement
executed by Wabash on or about the Closing Date in favor of Agent, for
the benefit of itself and Lenders, by which Wabash has granted to
Agent, as security for the Obligations, a Lien on the 100% of the
Securities of each other Borrower owned by Wabash and 100% of the
portion of the Securities of each of its other direct Subsidiaries
owned by Wabash and (ii) all other pledge agreements and comparable
documents now or at any time hereafter securing the whole or any part
of the Obligations.
PPSA - the Personal Property Security Act in force in the
Province of Ontario; provided, that in the event that, by reason of
mandatory provisions of law, the
A-20
validity, perfection and effect of perfection or non-perfection of a
security interest or other applicable Lien is governed by other
personal property security laws, the term "PPSA" means such other
personal property security laws.
Prior Claims - Liens on the Collateral that pursuant to
applicable law are prior to or pari passu with Agent's Liens.
Product Obligations - every obligation of each Borrower under
and in respect of any one or more of the following types of services or
facilities extended to any Borrower by Bank, Agent, any Lender or any
Affiliate of Bank, Agent or any Lender: (i) credit cards, (ii) cash
management or related services including the automatic clearing house
transfer of funds for the account of any Borrower pursuant to agreement
or overdraft, (iii) controlled disbursement services and (iv)
Derivative Obligations.
Projections - Wabash's forecasted Consolidated and
consolidating (i) balance sheets, (ii) profit and loss statements,
(iii) cash flow statements, and (iv) capitalization statements, all
prepared on a consistent basis with the historical financial statements
of Wabash and its Subsidiaries, together with appropriate supporting
details and a statement of underlying assumptions.
Property - any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
Purchase Money Indebtedness - means and includes (i)
Indebtedness (other than the Obligations) for the payment of all or any
part of the purchase price of any fixed assets, (ii) any Indebtedness
(other than the Obligations) incurred at the time of or within 10 days
prior to or after the acquisition of any fixed assets for the purpose
of financing all or any part of the purchase price thereof, and (iii)
any renewals, extensions or refinancings thereof, but not any increases
in the principal amounts thereof outstanding at the time.
Purchase Money Lien - a Lien upon fixed assets which secures
Purchase Money Indebtedness, but only if such Lien shall at all times
be confined solely to the fixed assets the purchase price of which was
financed through the incurrence of the Purchase Money Indebtedness
secured by such Lien.
Rebuild Reserve - a reserve created under subsection 1.1.1 of
the Agreement in the amount of (a) all proceeds of insured losses or
destruction to Equipment or real Property being held by Agent pursuant
to subsection 3.3.1(a) pending possible repair or replacement of such
Property subject to the original loss or destruction and (b) all
proceeds of dispositions under subsection 8.2.9(vi) being held by Agent
pending possible replacement of the Property subject to the
disposition.
Regulation D - Regulation D of the Board of Governors of the
Federal Reserve System.
A-21
Rentals - as defined in subsection 8.2.19 of the Agreement.
Reportable Event - any of the events set forth in Section
4043(c) of ERISA.
Reserve Percentage - the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves) which
is imposed on member banks of the Federal Reserve System against
"Euro-currency Liabilities" as defined in Regulation D.
Restricted Investment - any investment made in cash or by
delivery of Property to any Person, whether by acquisition of stock,
Indebtedness or other obligation or Security, or by loan, advance or
capital contribution, or otherwise, or in any Property except the
following:
(i) investments by a Borrower, to the extent
said investments exist on the Closing Date, in one or more
Subsidiaries of such Borrower;
(ii) investments in Property to be used in the
ordinary course of business;
(iii) investments in Current Assets arising from
the sale of goods and services in the ordinary course of
business of any Borrower or any of its Subsidiaries;
(iv) investments in direct obligations of the
United States of America, or any agency thereof or obligations
guaranteed by the United States of America, provided that such
obligations mature within one year from the date of
acquisition thereof;
(v) investments in certificates of deposit
maturing within one year from the date of acquisition and
fully insured by the Federal Deposit Insurance Corporation;
(vi) investments in commercial paper given the
highest rating by a national credit rating agency and maturing
not more than 270 days from the date of creation thereof;
(vii) investments in money market, mutual or
similar funds having assets in excess of $100,000,000 and the
investments of which are limited to investment grade
securities;
(viii) Intercompany Loans;
(ix) investments made in exchange for Accounts
arising in the ordinary course of business which have not been
collected for 120 days and which are, in the good faith
judgment of such Borrower or one of its Subsidiaries,
substantially uncollectible, provided that the instrument
A-22
evidencing such investment is delivered to Agent to be held as
security for the Obligations pursuant to the terms of the
Agreement;
(x) investments in evidence of Indebtedness,
securities or other Property received from another Person by
such Borrower or any of its Subsidiaries in connection with
any bankruptcy case or by reason of a composition or a
readjustment of debt or reorganization of such Person as a
result of foreclosure, perfection or enforcement of any Lien
in exchange for evidence of Indebtedness, securities or other
Property of such Person; and
(xi) investments existing on the date hereof and
listed on Exhibit 8.2.12 hereto;
(xii) investments otherwise expressly permitted
pursuant to the Agreement.
Revolving Credit Loan - a Loan made by any Lender pursuant to
Section 1.1 of the Agreement.
Revolving Credit Maximum Amount - $175,000,000, as such amount
may be reduced from time to time pursuant to the terms of the
Agreement.
Revolving Loan Commitment - with respect to any Lender, the
amount of such Lender's Revolving Loan Commitment pursuant to
subsection 1.1.1 of the Agreement, as set forth below such Lender's
name on the signature page hereof or any Assignment and Acceptance
Agreement executed by such Lender.
Revolving Loan Percentage - with respect to each Lender, the
percentage equal to the quotient of such Lender's Revolving Loan
Commitment divided by the aggregate of all Revolving Loan Commitments.
Revolving Notes - the Secured Promissory Notes to be jointly
and severally executed by Borrowers on or about the Closing Date in
favor of each Lender to evidence the Revolving Credit Loans, which
shall be in the form of Exhibit 1.1 to the Agreement, together with any
replacement or successor notes therefor.
Security - all shares of stock, partnership interests,
membership interests, membership units or other ownership interests in
any other Person and all warrants, options or other rights to acquire
the same.
Security Documents - the Guaranty Agreements, the Mortgages,
the Pledge Agreements, any applicable hypothecs, and all other
instruments and agreements now or at any time hereafter securing the
whole or any part of the Obligations.
Senior Leverage Ratio - at any date, the ratio of (i)
Indebtedness for Money Borrowed as of such date, other than
Subordinated Debt, to (ii) EBITDA for the 12 month period ending on
such date (in the case of testing dates prior to September 30,
A-23
2004, the period from September 1, 2003 to and including such testing
date), all as determined for Wabash and its Subsidiaries on a
Consolidated basis and in accordance with GAAP.
Series B Preferred Stock - the Series B 6% Cumulative
Convertible Exchangeable Preferred Stock of Wabash.
Solvent - as to any Person, that such Person (i) owns Property
whose fair saleable value is greater than the amount required to pay
all of such Person's Indebtedness (including contingent debts), (ii) is
able to pay all of its Indebtedness as such Indebtedness matures and
(iii) has capital sufficient to carry on its business and transactions
and all business and transactions in which it is about to engage.
Subject Equipment - with respect to each portion of the Other
Indebtedness, the Equipment listed on Exhibit 8.2.9 opposite such Other
Indebtedness.
Subordinated Debt - Indebtedness of any Borrower or any of its
Subsidiaries that is subordinated to the Obligations in a manner
satisfactory to Majority Lenders, and contains terms, including without
limitation, payment terms, satisfactory to Majority Lenders.
Subsidiary - any Person of which another Person owns, directly
or indirectly through one or more intermediaries, more than 50% of the
Voting Stock at the time of determination.
Subsidiary Guarantors - each Subsidiary of Wabash that now or
hereafter executes a Guaranty Agreement.
Swingline Loans - as defined in subsection 1.1.4 of the
Agreement.
Syndication Agent - National City Commercial Finance, Inc. in
its capacity as Syndication Agent for the Lenders under the Agreement.
Term - as defined in Section 4.1 of the Agreement.
Term Loan - the Loan described in Section 1.3 of the
Agreement.
Term Loan Commitment - with respect to any Lender, the amount
of such Lender's Term Loan Commitment pursuant to Section 1.3 of the
Agreement, as set forth below such Lender's name on the signature pages
hereof or any Assignment and Acceptance Agreement executed by such
Lender, minus all Term Loan payments paid to such Lender.
Term Notes - the Secured Promissory Notes to be executed by
Borrower on or about the Closing Date in favor of each applicable
Lender to evidence its Term Loan, which shall be in the form of Exhibit
1.3 to the Agreement, together with any replacement or successor notes
therefor.
A-24
Total Credit Facility - $222,100,000, as such amount may be
reduced from time to time pursuant to the terms of the Agreement.
Trailer Inventory - Inventory of a Company (other than Apex
Trailer Inventory) consisting of new and used trailers held by such
Company for sale or lease.
Type of Organization - with respect to any Person, the kind or
type of entity by which such Person is organized, such as a corporation
or limited liability company.
UCC - the Uniform Commercial Code as in effect in the State of
Illinois on the date of this Agreement, as it may be amended or
otherwise modified.
Unused Line Fee - as defined in Section 2.5 of the Agreement.
Voting Stock - Securities of any class or classes of a
corporation, limited partnership or limited liability company or any
other entity the holders of which are ordinarily, in the absence of
contingencies, entitled to vote with respect to the election of
corporate directors (or Persons performing similar functions).
Wabash - as defined in the Preamble to the Agreement.
Wabash Canada - FTSI Canada, Ltd., a corporation organized
under the laws of the Province of New Brunswick.
Wind Down Subsidiaries - collectively, National Trailer
Funding, LLC; Roadrailer Bimodel Ltd.; Roadrailer Mercosul, Ltda.;
Roadrailer Technology Development Co., Ltd.; and Wabash National, GmbH.
WNC Cloud - WNC Cloud Merger Sub, Inc., an Arkansas
corporation.
WNLP - Wabash National, L.P., a Delaware limited partnership.
WNTC - Wabash National Trailer Centers, Inc., a Delaware
corporation.
OTHER TERMS. All other terms contained in the Agreement shall
have, when the context so indicates, the meanings provided for by the UCC to the
extent the same are used or defined therein.
CERTAIN MATTERS OF CONSTRUCTION. The terms "herein", "hereof"
and "hereunder" and other words of similar import refer to the Agreement as a
whole and not to any particular section, paragraph or subdivision. Any pronoun
used shall be deemed to cover all genders. The section titles, table of contents
and list of exhibits appear as a matter of convenience only and shall not affect
the interpretation of the Agreement. All references to statutes and related
regulations shall include any amendments of same and any successor statutes and
regulations. All references to any of the Loan Documents shall include any and
all modifications thereto and any and all extensions or renewals thereof.
A-25
LIST OF EXHIBITS
Exhibit 1.1 Form of Revolving Note
Exhibit 1.3 Form of Term Note
Exhibit 5.2.1 Commercial Tort Claims
Exhibit 6.1.1 Business Locations
Exhibit 6.3.2 Apex Trailer Leases
Exhibit 7.1.1 Jurisdictions in which each Borrower, Wabash Canada and each of
the Domestic Subsidiaries is Authorized to do Business
Exhibit 7.1.4 Capital Structure of each Borrower and each of its Subsidiaries
Exhibit 7.1.5 Names; Organization
Exhibit 7.1.10 Charges
Exhibit 7.1.13 Surety Obligations
Exhibit 7.1.14 Tax Identification Numbers of each Borrower and each of its
Subsidiaries
Exhibit 7.1.15 Brokers' Fees
Exhibit 7.1.16 Patents, Trademarks, Copyrights and Licenses
Exhibit 7.1.19 Contracts Restricting Right to Incur Debts
Exhibit 7.1.20 Litigation
Exhibit 7.1.22 Capitalized and Operating Leases
Exhibit 7.1.23 Pension Plans
Exhibit 7.1.25 Labor Relations
Exhibit 7.1.33 Joint Ventures
Exhibit 8.1.3 Form of Compliance Certificate
Exhibit 8.1.4 Form of Borrowing Base Certificate
Exhibit 8.2.3 Existing Indebtedness
Exhibit 8.2.5 Permitted Liens
Exhibit 8.2.9 Subject Equipment
Exhibit 8.2.12 Permitted Investments
Exhibit 8.2.19 Lease Financing Arrangements
Exhibit 8.3 Financial Covenants
Exhibit 10.3.6 Real Property Subject to Phase II Environmental Reports
Exhibit A-1 Account Debtors that have Waived Setoff Rights
Exhibit A-2 Form of Assignment and Acceptance
List of Exhibits
EXHIBIT 1.1
FORM OF REVOLVING NOTE
Exhibit 1.1 - Page 1
EXHIBIT 1.3
FORM OF TERM NOTE
Exhibit 1.3 - Page 1
EXHIBIT 7.1.10
CHARGES
1. $22,000,000 make whole payment to existing private placement lenders
made in the third quarter of 2003.
2. $3,000,000 write down of assets in connection with the Fleet Amtrak
Debt and the Northern Trust Amtrak Debt, taken in the third quarter of
2003.
3. $2,000,000 retail alignment/closure charges taken in the third quarter
of 2003.
4. $2,000,000 Apex Sale charges taken in the third quarter of 2003.
Exhibit 7.1.10 - Page 1
EXHIBIT 8.1.3
COMPLIANCE CERTIFICATE
[_________________]
__________________, ___
Fleet Capital Corporation, as Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The undersigned, the Treasurer of Wabash National Corporation
("Wabash"), gives this certificate to Fleet Capital Corporation, in its capacity
as Agent ("Agent") in accordance with the requirements of subsection 8.1.3 of
that certain Loan and Security Agreement dated September 23, 2003 among Wabash,
as a Borrower, the Subsidiaries of Wabash party thereto as Borrowers, Agent,
Fleet Securities, Inc., as Arranger, National City Commercial Finance, Inc., as
Syndication Agent, General Electric Capital Corporation, as a Documentation
Agent, Wachovia Bank, National Association, as a Documentation Agent and the
Lenders party thereto ("Loan Agreement"). Capitalized terms used in this
Certificate, unless otherwise defined herein, shall have the meanings ascribed
to them in the Loan Agreement.
1. Based upon my review of the balance sheets and statements
of income of Wabash and its Subsidiaries for the [__________] period ending
_______________, ____, copies of which are attached hereto, I hereby certify
that:
(i) Capital Expenditures during the period and for the
fiscal year to date total $__________ and $__________, respectively.
(ii) The Fixed Charge Coverage Ratio as of the last day of
the period is _____:1.0.
(iii) The Leverage Ratio as of the last day of the period
is _____:1.0.
2. No Default exists on the date hereof, other than: _________
________________________________________________ [IF NONE, SO STATE]; and
Exhibit 8.1.3 - Page 1
3. No Event of Default exists on the date hereof, other than
____________________________________________________ [IF NONE, SO STATE].
Very truly yours,
__________________________
Treasurer
Exhibit 8.1.3 - Page 2
EXHIBIT 8.1.4
FORM OF BORROWING BASE CERTIFICATE
Exhibit 8.1.4 - Page 1
EXHIBIT 8.3
FINANCIAL COVENANTS
DEFINITIONS
EBITDA - with respect to any period, the sum of net earnings
(or loss) before Interest Expense, income taxes, depreciation, amortization and
other non-cash charges (including (i) gains and losses from currency
fluctuations, (ii) impairment charges relating to fixed assets or intangibles
and (iii) the amount by which obligations in respect of financing contracts
exceeds the cash proceeds of liquidation of such financing contracts to the
extent in excess of $5,000,000) for such period (but excluding any extraordinary
gains for such period and the charges described on Exhibit 7.1.10 to the
Agreement), all as determined for Wabash and its Subsidiaries on a Consolidated
basis and in accordance with GAAP; provided, that for the 3 month period ended
March 31, 2003, EBITDA shall be deemed to be equal to $12,169,000 and for the 3
month period ended June 30, 2003, EBITDA shall be deemed to be equal to
$14,861,000.
FIXED CHARGE COVERAGE RATIO - with respect to any period, the
ratio of (i) EBITDA for such period minus the sum of (a) any provision for (plus
any benefit from) income taxes included in the determination of net earnings (or
loss) for such period plus (b) non-financed Capital Expenditures during such
period plus (c) preferred stock dividends paid during such period, to (ii) Fixed
Charges for such period, all as determined for Wabash and its Subsidiaries on a
Consolidated basis and in accordance with GAAP.
FIXED CHARGES - with respect to any period, the sum of: (i)
scheduled principal payments required to be made during such period in respect
to Indebtedness for Money Borrowed (including the principal portion of
Capitalized Lease Obligations), excluding the mandatory prepayment of the Term
Loan made pursuant to subsection 3.3.9 of the Agreement, plus (ii) Interest
Expense for such period, all as determined for Wabash and its Subsidiaries on a
Consolidated basis and in accordance with GAAP.
INTEREST EXPENSE - with respect to any period, cash interest
expense paid or accrued for such period, including without limitation the
interest portion of Capitalized Lease Obligations, plus the Letter of Credit and
LC Guaranty fees owing for such period, all as determined for Wabash and its
Subsidiaries on a Consolidated basis and in accordance with GAAP.
LEVERAGE RATIO - at any date, the ratio of (i) Indebtedness
for Money Borrowed as of such date, other than Indebtedness existing on the
Closing Date in respect of the Convertible Notes, to (ii) EBITDA for the 12
month period ending on such date, all as determined for Wabash and its
Subsidiaries on a Consolidated basis and in accordance with GAAP.
Exhibit 8.3 - Page 1
COVENANTS
1. FIXED CHARGE COVERAGE RATIO. Borrowers shall not
permit the Fixed Charge Coverage Ratio for any period set forth below to be less
than the ratio set forth below opposite such period:
PERIOD RATIO
------ -----
Three (3) month period ending on December 31, 2003 1.00 to 1.0
Six (6) month period ending on March 31, 2004 1.05 to 1.0
Nine (9) month period ending on June 30, 2004 1.10 to 1.0
Twelve (12) month period ending on September 30, 2004 and each 1.25 to 1.0
December 31, March 31, June 30 and September 30 thereafter
2. LEVERAGE RATIO. Borrowers shall not permit the
Leverage Ratio for any period set forth below to be more than the ratio set
forth below opposite such period:
PERIOD RATIO
------ -----
Twelve (12) month period ending on December 31, 2003 4.50 to 1.0
Twelve (12) month period ending on March 31, 2004 4.25 to 1.0
Twelve (12) month period ending on June 30, 2004 4.00 to 1.0
Twelve (12) month period ending on September 30, 2004 3.75 to 1.0
Twelve (12) month period ending on December 31, 2004 3.50 to 1.0
Twelve (12) month period ending on March 31, 2005 3.25 to 1.0
Twelve (12) month period ending on June 30, 2005 and each 3.00 to 1.0
September 30, December 31, March 31 and June 30 thereafter
Exhibit 8.3 - Page 2
EXHIBIT 10.3.6
REAL PROPERTY SUBJECT TO PHASE II ENVIRONMENTAL REPORTS
1. Phoenix, Arizona
2. Harrison, Arkansas
3. Sheridan, Arkansas
4. Sacramento, California
5. Denver, Colorado
6. Miami, Florida
7. Atlanta (▇▇▇▇▇▇), Georgia
8. Lafayette, Indiana (North Plant)
9. Lafayette, Indiana (South Plant)
10. Des Moines, Iowa
11. Fort Madison, Iowa
12. Shreveport, Louisiana
13. St. ▇▇▇▇, Minnesota
14. St. Louis, Missouri
15. Charlotte, North Carolina (23rd ▇▇. ▇▇▇▇)
▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇ ▇▇▇▇▇▇)
▇▇. Huntsville, Tennessee
18. Memphis, Tennessee
19. Roanoke, Virginia
20. Seattle, Washington
Exhibit 10.3.6 - Page 1
EXHIBIT A-2
FORM OF ASSIGNMENT AND ACCEPTANCE
Exhibit A-2