WAIVER AND AMENDMENT NO. 4
TO LOAN AND SECURITY AGREEMENT
THIS WAIVER AND AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT
("Amendment") is dated as of September 29, 2004 and is by and among FLEET
CAPITAL CORPORATION, a Rhode Island corporation, and the other parties
identified as Lenders on the signature pages hereto (collectively, "Lenders"),
on the one hand, and WABASH NATIONAL CORPORATION, a Delaware corporation, Wabash
National, L.P., a Delaware limited partnership, WNC Cloud Merger Sub, Inc., an
Arkansas corporation, and FTSI Distribution Company, L.P., a Delaware limited
partnership (collectively, "Borrowers"), on the other hand. Capitalized terms
used herein but not otherwise defined herein shall have the respective meanings
assigned to such terms in the Loan Agreement referred to herein below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Lenders and Borrowers are parties to a Loan and
Security Agreement, dated as of September 23, 2003 (as the same has been and may
be amended, or modified from time to time, the "Loan Agreement"), pursuant to
which the Lenders have agreed to make certain loans and other financial
accommodations to or for the account of Borrower;
WHEREAS, Borrowers have requested that Lenders (i) waive the
requirement that certain appraisals be delivered during the 2004 fiscal year as
required under Section 2.10 of the Loan Agreement and (ii) amend the Loan
Agreement in certain respects; and
WHEREAS, Lenders have agreed to do so on the terms and subject
to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
respective parties hereto hereby agree as follows:
1. Waiver. Subject to the satisfaction of the conditions set
forth in Section 4 below, and in reliance on the representations set forth in
Section 5 below, Agent and Lenders hereby waive the requirement set forth in
Section 2.10 of the Loan Agreement that certain appraisals of Inventory, Xxxx
and Hold Inventory and Trailer Inventory be obtained during the 2004 fiscal
year. This is a limited waiver and shall not be deemed to constitute a waiver
of, or consent to, any current or future breach of the Loan Agreement or any of
the other Loan Documents or any other requirements of any provision of the Loan
Agreement or any other Loan Documents.
2. Amendments. Subject to the satisfaction of the conditions
set forth in Section 4 below, and in reliance upon the representations and
warranties set forth in Section 5 below, the Loan Agreement is hereby amended as
follows:
(a) Section 2.10 of the Loan Agreement is hereby amended and
restated in its entirety, as follows:
"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 commencing on January
1, 2005, at Borrowers' joint and several expense, (i) as
requested by Agent or Majority Lenders in their reasonable
credit judgment or (ii) promptly after any period of 10
consecutive days during which Availability is less than
$30,000,000 Agent shall (A) obtain a desk top appraisal of the
Inventory, the Xxxx 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
(B) obtain an appraisal of the Inventory, the Xxxx 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, Xxxx 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."
(b) Subsection 3.3.2 of the Loan Agreement is hereby amended
and restated in its entirety, as follows:
"3.3.2 [INTENTIONALLY OMITTED]"
(c) Subsection 8.1.4 of the Loan Agreement is hereby amended
and restated in its entirety, as follows:
"Borrowing Base Certificates. On or before the 20th day after
each fiscal quarter 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 fiscal quarter, with such supporting
materials as Agent shall reasonably request. On or before the
20th day after each month
-2-
from and after the date hereof (other than a month that is the
end of a fiscal quarter), Borrowers shall deliver to Agent, in
form and acceptable to Agent, an interim Borrowing Base
Certificate as of the last day of the immediately preceding
month calculated in a manner acceptable to Agent; provided,
that if Availability is less than $30,000,000 for any period
of 10 consecutive days, Borrowers shall deliver a fully
updated Borrowing Base Certificate for the month ending
subsequent to the last day of such period. 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 Xxxx and Hold Inventory information.
All Borrowing Base Certificates shall reflect all information
for each Borrower on a Consolidated and consolidating basis."
(d) Subsection 8.2.8 of the Loan Agreement is hereby amended
and restated in its entirety, as follows:
"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, (iii) $20,000,000
during the fiscal year ending December 31, 2005 or (iv)
$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."
(e) Appendix A to the Loan Agreement is hereby amended as
follows:
(i) the definition of "Applicable Margin" is hereby
hereby amended and restated in its entirety, as
follows:
"Applicable Margin - from September ___, 2004 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 0.25%
Base Rate Term Portion 0.25%
LIBOR Revolving Portion 2.25%
LIBOR Term Portion 2.25%
Unused Line Fee 0.375%
-3-
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 September 30, 2004 (each such date,
an "Adjustment Date"), effective prospectively on the first day of the
month immediately following 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 Term Unused Line
---------- ---------- ------ ----------- -----------
Financial Measurement Revolving Term Portion Revolving Portion Fee
--------------------- ---------- ------------ ---------- ------- ---
Portion Portion
------- -------
----------------------------------- -------------- ------------- -------------- ------------- --------------
Less than 1.75 to 1.00 0.25% 0.25% 2.25% 2.25% 0.375%
----------------------------------- -------------- ------------- -------------- ------------- --------------
Greater than or equal to 1.75 to 0.00% 0.00% 2.00% 2.00% 0.375%
1.00 and less than 2.50 to 1.00
----------------------------------- -------------- ------------- -------------- ------------- --------------
Greater than or equal to 0.00% 0.00% 1.75% 1.75% 0.250%
2.50 to 1.00
----------------------------------- -------------- ------------- -------------- ------------- --------------
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."
(ii) The definition of "Excess Cash Flow" is hereby
deleted in its entirety.
3. Scope of Amendment. Subject to the satisfaction of the
conditions set forth in Section 4 below and in reliance upon the representations
and warranties of Borrowers set forth therein, this Amendment shall have the
effect of amending the Loan Agreement as appropriate to express the agreements
contained herein. In all other respects, the Loan Agreement and the other Loan
Documents shall remain in full force and effect in accordance with their
respective terms.
-4-
4. Conditions to Effectiveness. The effectiveness of this
Amendment and the amendments contained herein are subject to the satisfaction of
the following conditions precedent or concurrent:
(a) Agent shall have received a copy of this Amendment
executed by Borrowers and the Lenders, together with a reaffirmation of Guaranty
Agreement executed by each Guarantor; and
(b) No Default or Event of Default shall be in existence.
5. Representations and Warranties. To induce Lenders to
execute and deliver this Amendment, Borrowers hereby represent and warrant to
Lenders that, after giving effect to this Amendment:
(a) All representations and warranties contained in the Loan
Agreement and the other Loan Documents are true and correct in all material
respects on and as of the date of this Amendment, in each case as if then made,
other than representations and warranties that expressly relate solely to an
earlier date (in which case such representations and warranties remain true and
accurate on and as of such earlier date).
(b) No Default or Event of Default has occurred which is
continuing.
(c) This Amendment, and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of Borrowers and are enforceable
against Borrowers in accordance with their respective terms.
(d) The execution and delivery by Borrowers of this Amendment
does not require the consent or approval of any Person, except such consents and
approvals as have been obtained.
6. Governing Law. THE VALIDITY, INTERPRETATION AND ENFORCEMENT
OF THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS AND DECISIONS OF THE STATE OF
ILLINOIS, WITHOUT REGARD TO CONFLICT
OF LAWS PRINCIPLES.
7. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. Counterparts. This Amendment may be executed in any number
of counterparts and by the different parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument. Any such
counterpart which may be delivered by facsimile transmission shall be deemed the
equivalent of an originally signed counterpart and shall be fully admissible in
any enforcement proceedings regarding this Amendment.
-5-
[SIGNATURE PAGES TO FOLLOW]
-6-
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the date first set forth above.
LENDERS:
FLEET CAPITAL CORPORATION, as Agent
and as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxx
---------------------------------
Title: V.P.
------------------------------
NATIONAL CITY COMMERCIAL
FINANCE, INC., as Syndication Agent and
as a Lender
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Title: V.P.
------------------------------
GENERAL ELECTRIC
CAPITAL CORPORATION, as a Documentation
Agent and as a Lender
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Title: Duly Authorized Signatory
------------------------------
WACHOVIA BANK,
NATIONAL ASSOCIATION, as a
Documentation Agent and as a Lender
By: /s/ Xxxxxx X. Xxxx
---------------------------------
Title: V.P.
------------------------------
XXXXXXX XXXXX CAPITAL, a Division of
Xxxxxxx Xxxxx Business Financial Services,
Inc., as a Lender
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Title: V.P.
------------------------------
WASHINGTON MUTUAL BANK, as a Lender
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Title: V.P.
------------------------------
FIFTH THIRD BANK, as a Lender
By: /s/ Xxxxxx Xxxx
---------------------------------
Title: V.P.
------------------------------
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Title: A.V.P.
------------------------------
BORROWERS:
WABASH NATIONAL CORPORATION
By: c/o Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President and Controller
--------------------------------
WABASH NATIONAL, L.P.
By: c/o Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President and Controller
--------------------------------
WNC CLOUD MERGER SUB, INC.
By: c/o Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President and Controller
--------------------------------
FTSI DISTRIBUTION COMPANY, L.P.
By: c/o Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President and Controller
--------------------------------
REAFFIRMATION
Wabash National Trailer Centers, Inc., a Delaware corporation,
Wabash Financing LLC, a Delaware limited liability company, National Trailer
Funding, L.L.C., a Delaware limited liability company, Apex Trailer Leasing &
Rentals, L.P., a Delaware limited partnership, Continental Transit Corporation,
an Indiana corporation, Wabash National Services, L.P., a Delaware limited
partnership, and Cloud Oak Flooring Company, Inc., an Arkansas corporation (each
"Guarantor" and collectively, "Guarantors"), hereby (i) acknowledge receipt of a
copy of the foregoing Waiver and Amendment No. 4 to
Loan and Security Agreement
(the "Amendment"); (ii) affirm that nothing contained in the Amendment shall
modify in any respect whatsoever any Loan Document to which any Guarantor is a
party; and (iii) reaffirm that such Loan Documents and all obligations of the
Guarantors thereunder shall continue to remain in full force and effect.
IN WITNESS WHEREOF, Guarantors have executed this
Reaffirmation on and as of the date of the Amendment.
WABASH NATIONAL TRAILER CENTERS, INC.
By: c/o Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President and Controller
--------------------------------
WABASH FINANCING LLC
By: c/o Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President and Controller
--------------------------------
NATIONAL TRAILER FUNDING, L.L.C.
By: c/o Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President and Controller
--------------------------------
APEX TRAILER LEASING & RENTALS, L.P.
By: c/o Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President and Controller
--------------------------------
CONTINENTAL TRANSIT CORPORATION
By: c/o Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President and Controller
--------------------------------
WABASH NATIONAL SERVICES, L.P.
By: c/o Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President and Controller
--------------------------------
CLOUD OAK FLOORING COMPANY, INC.
By: c/o Xxxxxx X. Xxxxx
-----------------------------------
Title: Vice President and Controller
--------------------------------
