EXHIBIT 10.49
OMNIBUS AMENDMENT NO. 2
THIS OMNIBUS AMENDMENT NO. 2 (this "AMENDMENT") is entered
into as of April 11, 2003, by and among:
(1) WABASH NATIONAL CORPORATION, a Delaware
corporation (the "PERFORMANCE GUARANTOR"),
(2) WNC RECEIVABLES, LLC, a Delaware limited
liability company (the "SPE"),
(3) WNC RECEIVABLES MANAGEMENT CORP., a Delaware
corporation (the "INDEPENDENT MEMBER"),
(4) WNC FINANCING LLC, a Delaware limited liability
company ("WFL"),
(5) WABASH NATIONAL TRAILER CENTERS, INC., a Delaware
corporation (f/k/a NOAMTC, INC., a Delaware corporation) and WABASH
NATIONAL, L.P., a Delaware limited partnership (collectively, the
"ORIGINATORS"; and together with the Performance Guarantor, the SPE and
the Independent Member, each a "COMPANY" and collectively, the
"COMPANIES"), and
(6) GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
corporation, in its capacity as Agent (the "AGENT") for the purchasers
from time to time parties to the Purchase Agreement (as defined below)
and as the sole initial purchaser thereunder (the "PURCHASER"),
with respect to (a) that certain Receivables Sale and Contribution Agreement,
dated as of April 11, 2002, by and among the Performance Guarantor, the
Originators, as sellers, and the SPE, as buyer (as supplemented, restated,
amended or otherwise modified from time to time, the "SALE AGREEMENT"), and (b)
that certain Receivables Purchase and Servicing Agreement, dated as of April 11,
2002, by and among the SPE, as seller, WFL, as initial Servicer, the Independent
Member, the Agent and the Purchaser (as supplemented, restated, amended or
otherwise modified from time to time, the "PURCHASE AGREEMENT").
UNLESS OTHERWISE INDICATED, CAPITALIZED TERMS USED IN THIS
AMENDMENT ARE USED WITH THE MEANINGS ATTRIBUTED THERETO IN ANNEX X TO THE SALE
AGREEMENT AND PURCHASE AGREEMENT.
W I T N E S S E T H :
WHEREAS, the Performance Guarantor, the SPE, the Originators,
the Agent and the Purchaser have agreed to amend certain provisions of the Sale
Agreement, Purchase Agreement and the other Related Documents.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the parties hereto hereby agree as follows:
1. AMENDMENTS TO THE SALE AGREEMENT, PURCHASE AGREEMENTS AND
THE OTHER RELATED DOCUMENTS. Subject to the terms and conditions hereinafter set
forth, the parties hereby agree as follows:
1.1 Annex X Amendments.
(1) Annex X to the Sale Agreement and the Purchase Agreement
is hereby amended by adding the following new defined terms to Annex X in their
proper alphabetical order:
"ELIGIBLE ASSET DISPOSITION CHARGES" means charges, calculated
in accordance with Agreement Accounting Principles, incurred by the
Parent in its fiscal year ending on December 31, 2003 but only to the
extent (i) such charges relate solely and directly to the sales of
assets and properties permitted under Section (B) of Annex 4.04(o) to
the Sale Agreement (including without limitation charges composed of
brokerage and investment banking fees, rental and used trailer
disposition fees and charges and other disposition transaction costs)
and (ii) the proceeds of such sales are used to prepay Indebtedness (as
defined in Annex 4.04(l) to the Sale Agreement) of the Parent and its
Subsidiaries to the extent permitted under the Related Documents.
"ELIGIBLE ASSET IMPAIRMENT CHARGES" means up to $35,000,000 in
the aggregate attributable to, without duplication, any charges
incurred by the Parent in its fiscal year ending on December 31, 2003
but only to the extent such charges relate solely and directly to the
impairment of long-lived assets, goodwill and other intangible assets,
all in accordance with Agreement Accounting Principles.
"ELIGIBLE MISCELLANEOUS NON-CASH CHARGES" means non-cash
charges (including but not limited to non-cash losses on finance
contracts, severance and other loss contingencies but excluding
Eligible Asset Impairment Charges and Eligible Restructuring Charges),
calculated in accordance with Agreement Accounting Principles and, to
the extent deducted in computing Consolidated Operating Income (as
defined in Annex 4.04(l) to the Sale Agreement), incurred by the Parent
in its fiscal year ending on December 31, 2003 but only to the extent
the aggregate amount of such non-cash charges do not exceed
$10,000,000.
"ELIGIBLE RESTRUCTURING CHARGES" means any charges incurred by
the Parent in its fiscal year ending on December 31, 2003 but only to
the extent such charges (i) are incurred in accordance with Agreement
Accounting Principles and (ii) relate solely and directly to the
restructuring, waiving or amending of the instruments and documents
evidencing any of the Secured Obligations and other lines of credit,
leases or other extensions of credit, including any amounts paid to any
lenders, advisor fees and other related costs.
"FLEET EQUIVALENT INCREASE" is defined in Section 1.1(2)
hereof.
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"FLEET PARTICIPATION AGREEMENT" means that certain Amended and
Restated Participation Agreement dated as of March 30, 2001 as
currently in effect among Apex Trailer Leasing & Rentals, L.P., the
Performance Guarantor, certain financial institutions from time to time
party thereto, U.S. Bank National Association, as trustee and Fleet
Capital Corporation individually and as owner participant, collateral
agent and administrative agent, as such agreement may be amended,
restated, supplemented or otherwise modified from time to time.
"GE DEFERRED FEE ALLOCATION" means, at any time, the
percentage determined by dividing (a) the aggregate amount of the
amendment fees in favor of the Agent and the Purchaser as required by,
and in connection with, this Amendment by (b) the aggregate of the
Second Amendment Closing Fees (as defined in Section 5 hereof).
"SECOND AMENDMENT EFFECTIVE DATE" has the meaning assigned to
it in Section 4 hereof.
"TARGETED CONSOLIDATED EBITDA AMOUNT" means, for each relevant
month, the cumulative Consolidated EBITDA amount (measured from and
after January 1, 2003) furnished on March 6, 2003 to the Lenders as
part of the Parent's 2003 budget minus that portion of such cumulative
Consolidated EBITDA amount which is attributable to the sale, from and
after January 1, 2003, of any assets or any Subsidiary to the extent
permitted herein or otherwise approved by the Required Purchasers.
"UNADJUSTED CONSOLIDATED EBITDA" means, for any period, on a
consolidated basis for the Parent and its consolidated Subsidiaries,
the sum of the amounts for such period, without duplication, of (i)
Consolidated Operating Income (as defined in Annex 4.04(l) to the Sale
Agreement), plus (ii) charges against income for foreign taxes and U.S.
income taxes to the extent deducted in computing Consolidated Operating
Income, plus (iii) Interest Expense (as defined in Annex 4.04(l) to the
Sale Agreement) to the extent deducted in computing Consolidated
Operating Income, plus (iv) depreciation expense to the extent deducted
in computing Consolidated Operating Income, plus (v) amortization
expense, including, without limitation, amortization of goodwill and
other intangible assets to the extent deducted in computing
Consolidated Operating Income, plus (vi) Eligible Asset Disposition
Charges to the extent deducted in computing Consolidated Operating
Income, minus (a) the total interest income of the Parent and its
Subsidiaries to the extent included in computing Consolidated Operating
Income minus (b) the total tax benefit reported by the Parent and its
Subsidiaries to the extent included in computing Consolidated Operating
Income.
(2) Annex X to the Sale Agreement and the Purchase Agreement
is hereby further amended by amending and restating the definitions of
"CONSOLIDATED EBITDA" and "PER ANNUM DAILY MARGIN" in their entirety to read as
follows:
"CONSOLIDATED EBITDA"
means, for any period, on a consolidated basis for the Parent
and its consolidated Subsidiaries, the sum of the amounts for such
period, without duplication, of (i) Consolidated Operating Income (as
defined in Annex 4.04(l) to the Sale Agreement), plus (ii) charges
against income for foreign taxes and U.S. income
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taxes to the extent deducted in computing Consolidated Operating
Income, plus (iii) Interest Expense (as defined in Annex 4.04(l) to the
Sale Agreement) to the extent deducted in computing Consolidated
Operating Income, plus (iv) depreciation expense to the extent deducted
in computing Consolidated Operating Income, plus (v) amortization
expense, including, without limitation, amortization of goodwill and
other intangible assets to the extent deducted in computing
Consolidated Operating Income, plus (vi) Eligible Asset Disposition
Charges to the extent deducted in computing Consolidated Operating
Income, plus (vii) Eligible Asset Impairment Charges to the extent
deducted in computing Consolidated Operating Income, plus (viii)
Eligible Miscellaneous Non-Cash Charges to the extent deducted in
computing Consolidated Operating Income, plus (ix) Eligible
Restructuring Charges to the extent deducted in computing Consolidated
Operating Income, minus (a) the total interest income of the Parent and
its Subsidiaries to the extent included in computing Consolidated
Operating Income minus (b) the total tax benefit reported by the Parent
and its Subsidiaries to the extent included in computing Consolidated
Operating Income.
"PER ANNUM DAILY MARGIN" shall mean:
(a) at all times prior to the date on which the Parent files
its 10-K for the year ended December 31, 2002:
(i) with respect to Capital Investment (A) at
the LIBOR Rate, 4.00%, and (B) at the Index
Rate, 2.50%, and
(ii) with respect to Unused Facility Fees. 1.00%;
and
(b) at all times from and after the date on which the Parent
files its 10-K for the year ended December 31, 2002, the applicable per
annum percentage set forth opposite the then applicable range of the
Aggregate Interest Coverage Ratio:
PER ANNUM DAILY MARGIN
----------------------------------------------
AGGREGATE CAPITAL CAPITAL
INTEREST COVERAGE INVESTMENT INVESTMENT UNUSED
RATIO AT THE AT THE FACILITY FEE
LIBOR RATE INDEX RATE
> 2.0 : 1.0 3.75% 2.25% 0.875%
< OR = 2.0 : 1.0 BUT 4.00% 2.50% 1.00%
> 1.5 : 1.0
< OR = 1.5 : 1.0 4.25% 2.75% 1.125%
In addition, the foregoing Per Annum Daily Margin (other than
with respect to the Unused Facility Fee) shall be subject, for each
month in which the same is determined, to an increase during such month
equal to the sum of (i) 0.50% for every 10% of negative
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variance from the Targeted Consolidated EBITDA Amount, (ii) 0.50% for
every quarterly occurrence of a Leverage Valuation Ratio (as defined in
Annex 4.04(l) to the Sale Agreement) above 0.85 to 1 as of the end of
the Parent's most recently ended fiscal quarter and to be paid in the
fiscal quarter following such occurrence (it being understood and
agreed that, once in effect, such Leverage Valuation Ratio-based
increase (a "LEVERAGE INCREASE") will remain in effect for each month
prior to the Parent's achievement of a Leverage Valuation Ratio of 0.85
to 1 or less but shall cease to apply (subject to subsequent quarterly
occurrences of a Leverage Valuation Ratio above 0.85 to 1) during and
after such month when the Parent's quarterly-based Leverage Valuation
Ratio is equal to or is less than 0.85 to 1), (iii) 0.50% for every
monthly occurrence of a negative monthly Unadjusted Consolidated EBITDA
and (iv) 0.20% for every month during which the "Additional Fee" (as
identified and defined in Section 10.1(d) of the Fleet Participation
Agreement) is payable under the Fleet Participation Agreement (a "FLEET
EQUIVALENT INCREASE") (the amount calculated by adding the sum of
increases specified in the foregoing subsections (i), (ii), (iii) and
(iv) being referred to as the "ADDITIONAL SPREAD"). Each calculation of
the Additional Spread (1) will be determined as of the end of each
calendar month (or quarter in the case of the applicability of a
Leverage Increase) and shall be in effect for the next succeeding
calendar month (or fiscal quarter in the case of a Leverage Increase),
(2) shall be determined without giving effect to, and shall not be
additive of, the Additional Spread determined in any previous month and
(3) the amount calculated by adding the sum of the increases specified
in the foregoing subsections (i), (ii) and (iii) shall not exceed 5.00%
for any month.
It is understood and agreed by the parties hereto that the
foregoing Per Annum Daily Margin shall be deemed to apply as of
February 27, 2003.
(3) Annex X of the Sale Agreement and the Purchase Agreement
is hereby further amended by amending and restating Schedule CC to Annex X to
the Sale Agreement and Purchase Agreement in the form of Amended Schedule CC
attached to this Amendment.
1.2 Sale Agreement Amendments
(1) Section (c) of Annex 4.03 to the Sale Agreement is hereby
amended by adding at the end thereof the following:
In addition, in the course of each calendar month, all
information concerning the business or financial condition of the
Performance Guarantor as is provided to (and at the same time as is
provided) to the Lenders and Noteholders, including, without
limitation, and as soon as available but in any event by no later than
fifteen (15) days after the end of each monthly accounting period of
the Parent, the following (prepared in such format and detail as is
required by the Agent (as Buyer's assignee)): (1) a statement of
projected cash sources and uses of the Parent and its Subsidiaries for
the 13 calendar weeks following the end of such monthly accounting
period and a report (to the extent requested by the Agent (as Buyer's
assignee)) containing management's discussion and analysis of such
projections and (2) a statement of cash sources and uses for the
immediately preceding monthly accounting period of the Parent and for
such historical period as is reasonably required by the Agent (as
Buyer's assignee), in comparative form against the figures and
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for the corresponding date and period in the projected cash flow
statements required under the foregoing subsection (1); the foregoing
statements required under subsections (1) and (2) being duly certified
by the chief financial officer or treasurer of the Parent. Concurrently
with the delivery of each monthly report and information under the
Fleet Participation Agreement (including without limitation under
Section 6.1(e)(vii) thereof), the Performance Guarantor shall deliver
to the Agent copies of such reports and information and any other
information relevant to the calculation and determination of the Fleet
Equivalent Increase.
(2) Annex 4.04(l) to the Sale Agreement is hereby amended by
adding the following new defined terms to Annex 4.04(l) in their proper
alphabetical order:
"CONSOLIDATED EQUITY" means as of the date of any
determination thereof for any relevant period, the total stockholders'
equity of the Performance Guarantor and its Subsidiaries on a
consolidated basis, as determined in accordance with Agreement
Accounting Principles, plus the sum of the amounts for such period,
without duplication, of (i) foreign currency translation and
transaction gains and losses, plus (ii) all charges against income for
foreign taxes and U.S. income taxes, plus (iii) Eligible Asset
Disposition Charges, plus (iv) Eligible Asset Impairment Charges, plus
(v) Eligible Non-Cash Miscellaneous Charges, plus (vi) Eligible
Restructuring Charges.
"ELIGIBLE ASSET DISPOSITION CHARGES" means charges, calculated
in accordance with Agreement Accounting Principles, incurred by the
Performance Guarantor in its fiscal year ending on December 31, 2003
but only to the extent (i) such charges relate solely and directly to
the sales of assets and properties permitted under Section (B) of Annex
4.04(o) to the Sale Agreement (including without limitation charges
composed of brokerage and investment banking fees, rental and used
trailer disposition fees and charges and other disposition transaction
costs) and (ii) the proceeds of such sales are used to prepay
Indebtedness of the Performance Guarantor and its Subsidiaries to the
extent permitted under Annex 4.04(l) of the Sale Agreement.
"ELIGIBLE ASSET IMPAIRMENT CHARGES" means up to $35,000,000
attributable to, without duplication, any charges incurred by the
Performance Guarantor in its fiscal year ending on December 31, 2003
but only to the extent such charges relate solely and directly to the
impairment of long-lived assets, goodwill and other intangible assets,
all in accordance with Agreement Accounting Principles.
"ELIGIBLE MISCELLANEOUS NON-CASH CHARGES" means non-cash
charges (including but not limited to non-cash losses on finance contracts,
severance and other loss contingencies), calculated in accordance with Agreement
Accounting Principles and, to the extent deducted in computing Consolidated
Operating Income, incurred by the Performance Guarantor in its fiscal year
ending on December 31, 2003 but only to the extent the aggregate amount of
Eligible Miscellaneous Non-Cash Charges do not exceed $10,000,000.
(3) Annex 4.04(l) to the Sale Agreement is hereby amended by
amending and restating the definition of "CONSOLIDATED EBITDA" therein in its
entirety to read as follows:
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"CONSOLIDATED EBITDA" means, for any period, on a consolidated
basis for the Performance Guarantor and its consolidated Subsidiaries,
the sum of the amounts for such period, without duplication, of (i)
Consolidated Operating Income, plus (ii) charges against income for
foreign taxes and U.S. income taxes to the extent deducted in computing
Consolidated Operating Income, plus (iii) Interest Expense to the
extent deducted in computing Consolidated Operating Income, plus (iv)
depreciation expense to the extent deducted in computing Consolidated
Operating Income, plus (v) amortization expense, including, without
limitation, amortization of goodwill and other intangible assets to the
extent deducted in computing Consolidated Operating Income, plus (vi)
Eligible Asset Disposition Charges to the extent deducted in computing
Consolidated Operating Income, plus (vii) Eligible Asset Impairment
Charges to the extent deducted in computing Consolidated Operating
Income, plus (viii) Eligible Miscellaneous Non-Cash Charges to the
extent deducted in computing Consolidated Operating Income, plus (ix)
Eligible Restructuring Charges to the extent deducted in computing
Consolidated Operating Income, minus (a) the total interest income of
the Performance Guarantor and its Subsidiaries to the extent included
in computing Consolidated Operating Income minus (b) the total tax
benefit reported by the Performance Guarantor and its Subsidiaries to
the extent included in computing Consolidated Operating Income.
(4) Annex 4.04(l) to the Sale Agreement is hereby amended by
amending and restating Sections (A), (B), (C), (D) and (E) thereof in their
entirety to read as follows:
(A) Intentionally Omitted.
(B) Minimum Consolidated Equity. The Performance Guarantor
shall, as of the last day of each of the fiscal quarters
specified below, maintain Consolidated Equity at an amount not
less than the applicable "Minimum Consolidated Equity"
specified below:
Fiscal Quarter Ending Minimum Consolidated
Equity
March 31, 2003 $40,000,000
June 30, 2003 $35,000,000
September 30, 2003 $30,000,000
December 31, 2003 $25,000,000
(C) Maximum Leverage Valuation Ratio.
The Performance Guarantor shall not permit, as of the last day
of each of the fiscal quarters specified below, the Leverage
Valuation Ratio to exceed the applicable "Maximum Leverage
Valuation Ratio" specified below:
Fiscal Quarter Ending Maximum Leverage Valuation
Ratio
March 31, 2003 0.95 to 1
June 30, 2003 0.95 to 1
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September 30, 2003 0.95 to 1
December 31, 2003 0.95 to 1
(D) Minimum Consolidated EBITDA. The Performance Guarantor
shall, as of the last day of each of the fiscal quarters
specified below, maintain Consolidated EBITDA at an amount not
less than the applicable "Minimum Cumulative Consolidated
EBITDA" specified below for the period commencing on January
1, 2003 and ending on such last day:
Minimum Cumulative Consolidated
Month Ending EBITDA
March 31, 2003 $0
June 30, 2003 $5,000,000
September 30, 2003 $15,000,000
December 31, 2003 $20,000,000
(E) Minimum Interest Coverage Cash Collateral. The
Performance Guarantor shall, by no later than December 31,
2002, enter into a Cash Collateral Agreement (as defined by
the Credit Agreement) and, by no later than one (1) Business
Day prior to the first day of each fiscal quarter of the
Performance Guarantor ending on or after March 31, 2003,
deposit funds ("CASH COLLATERAL FUNDS") with the Collateral
Agent in an amount not less than the aggregate amount of
interest required to be paid, through the end of the
immediately succeeding fiscal quarter, under the Credit
Agreement and under the Note Agreements; provided that (i) in
the case of interest required to be paid through the end of
the fiscal quarter ending on March 31, 2004, the Performance
Guarantor may deposit Cash Collateral Funds (as defined by
the Credit Agreement) on or before (but not after) January
15, 2004 and (ii) it being understood and agreed that if, at
any time subsequent to the date Cash Collateral Funds are
deposited, the aggregate amount of interest required to be so
paid increases, the Performance Guarantor shall promptly, and
in any event within three (3) Business Days after demand by
the Credit Facility Agent or by the holders of the Senior
Notes, deposit additional funds with the Collateral Agent in
an aggregate amount not less than the amount of such
increase.
(F) Maximum Capital Expenditures. The Performance Guarantor
will not, and will not permit any Subsidiary to, expend for
Capital Expenditures during any fiscal year of the
Performance Guarantor and its Subsidiaries, in excess of
$4,000,000 in the aggregate for the Performance Guarantor and
its Subsidiaries.
1.3 Purchase Agreement Amendments. The Section 9.01 of the Purchase
Agreement is hereby amended by adding new subsections (y) and (z) which shall
read as follows:
(y) Failure to Deliver Refinancing Commitment Letter. The
Performance Guarantor shall fail to deliver, by no later than January
31, 2004, one or more binding commitment letters (in form and substance
satisfactory to the Required Secured Parties
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(as defined in the Intercreditor and Collateral Agency
Agreement)) from a bank, institutional lender or other qualified
lending source to pay in full, on or before the Termination Date (as
defined in the Credit Agreement), the Secured Obligations (as defined
in the Intercreditor and Collateral Agency Agreement).
(z) a default or breach under the Fleet Participation
Agreement, regardless of whether such default is waived or whether any
right with respect to such default or breach is exercised (including,
without limitation, any default or breach arising out of failure by
Performance Guarantor to deliver a business plan as required by Section
6.1(o) thereof).
2. CONSENTS. In connection with the amendments specified in
Section 1 hereof, the Parent has informed the Agent and the Purchaser of its
intention to amend the Note Agreements, the Credit Agreement and the lease
agreements evidencing the Fleet Lease Transactions, in each case in a manner
similar to the amendments hereunder. At the Parent's request, the Agent and the
Purchaser consent to such amendments.
3. REPRESENTATIONS.
3.1 In order to induce the Agent and the Purchaser to
enter into this Amendment, each of the Companies represents and warrants to the
Agent and the Purchaser that it has duly authorized, executed and delivered this
Amendment and that the Amendment constitutes, a legal, valid and binding
obligation of such Company, enforceable in accordance with its terms (except as
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability).
3.2 Each of the Originators further represents and
warrants to the SPE and the Agent that, after giving effect to this Amendment,
each of its representations and warranties set forth in Section 4.01 of the Sale
Agreement is true and correct as of the date hereof.
3.3 Each of the Servicer and SPE further represents
and warrants to the Agent and the Purchaser that, after giving effect to this
Amendment, each of its representations and warranties set forth in Article IV of
the Purchase Agreement is true and correct as of the date hereof and that no
Incipient Termination Event, Termination Event, Incipient Servicer Termination
Event, or Events of Servicer Termination exists as of the date hereof and is
continuing.
4. CONDITION PRECEDENT. This Amendment shall become effective
on the date (the "SECOND AMENDMENT EFFECTIVE DATE") all the following condition
precedents shall have been satisfied: (i) the Agent shall have received
counterparts of this Amendment duly executed by each of the parties hereto, (ii)
amendments to the Note Agreements, the Credit Agreement and the lease agreements
evidencing the Fleet Lease Transaction shall have been executed and delivered by
the parties thereto and become effective, which amendments shall be in form and
substance acceptable to the Agent and its counsel, (iii) the SPE and WFL,
jointly and severally, shall have paid to the Agent, for the account of each
Purchaser, the GE Second
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Amendment Closing Fee in the amount and manner as set forth in Section 5 hereof,
(iv) the Agent shall have received, for the ratable account of Purchaser, the
aggregate unpaid amount of Daily Yield and all accrued and unpaid fees, costs
and expenses through the Second Amendment Effective Date, including, without
limitation, an amount equal to the excess of (A) the unpaid portion of the
Unused Facility Fee resulting from the increase in the Per Annum Daily Margin
effective as of February 27, 2003 and the implementation of the Additional
Spread pursuant hereto minus (B) the amount of Unused Facility Fee actually paid
thereon for such period, and (v) the Agent shall have received reimbursement in
full of the Agent's legal and other advisory fees and expenses it has heretofore
incurred in connection with the preparation, negotiation, execution and delivery
of this Amendment and the transactions contemplated hereby.
5. CLOSING FEES. SPE and WFL acknowledge that they are
required, jointly and severally, to pay amendment/closing fees in the amount of
$412,500 (in addition to and not including the 0.25% fee described in Section 9
hereof and reimbursement for out of pocket costs and expenses), representing
0.375% of the Maximum Purchase Limit of $110,000,000, to Agent in connection
with, and as required by, this Amendment (the "GE SECOND AMENDMENT CLOSING
FEE"), and the Performance Guarantor acknowledges that it is required to pay
certain closing fees (in addition to and not including reimbursement for out of
pocket costs and expenses) to (i) the Credit Facility Agent and the Lenders in
connection with, and as required by, the amendment (comparable to this
Amendment) to the Credit Agreement, (ii) the holders of the Senior Notes in
connection with, and as required by, amendments (comparable to this Amendment)
to the Note Agreements, and (iii) Fleet Capital Corporation in connection with,
and as required by, the amendment (comparable to this Amendment) to the lease
agreements evidencing the Fleet Lease Transaction (such fees to such financial
institutions being hereinafter referred to collectively as the "LENDERS' SECOND
AMENDMENT CLOSING FEES"; and together with the GE Second Amendment Closing Fee,
the "SECOND AMENDMENT CLOSING FEES"). In lieu of paying the entire balance of
the Second Amendment Closing Fees on the Second Amendment Effective Date, (1) on
the Second Amendment Effective Date, SPE, WFL and the Performance Guarantor
shall pay to such financial institutions and Agent at least $2,000,000 (in the
aggregate) of such Second Amendment Closing Fees and the GE Second Amendment
Closing Fee paid to the Agent shall not be less than the GE Deferred Fee
Allocation multiplied by the actual amount of the Second Amendment Closing Fees
paid on the Second Amendment Effective Date and (2) by a date no later than
January 15, 2004, SPE and WFL, jointly and severally, shall pay to the Agent (a)
the then unpaid balance of the GE Second Amendment Closing Fee and (b) a
deferral fee to the Agent in an amount equal to the Deferred Fee Amount at a
rate per annum equal to the sum of (A) the Daily Yield as in effect on such date
plus (B) (i) 2.00% from the Second Amendment Effective Date until the date such
Deferred Fee Amount has been paid in full plus (ii) 1.00% on the date
immediately prior to the day such Deferred Fee Amount balance has been paid in
full and for the period from the date such Deferred Fee Amount has been paid in
full until January 15, 2004. As used in this Section 5, "DEFERRED FEE AMOUNT"
means, with respect to the Second Amendment Closing Fees, the GE Deferred Fee
Allocation multiplied by the excess of (x) the actual amount of the Second
Amendment Closing Fees minus (y) the amount of the Second Amendment Closing Fees
paid on the Second Amendment Effective Date. The Performance Guarantor agrees
that in connection with any payment on any date of the Deferred Fee Amount or
the deferral fees described in this Section 5, the Performance Guarantor shall
cause SPE and WFL to, jointly and severally, pay to the Agent on the same date
an amount equal to the GE Deferred Fee Allocation multiplied by the amount of
such payment.
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6. RATIFICATION. Except as expressly modified hereby, each of
the Sale Agreement, the Purchase Agreement and each of the other Related
Documents, as amended hereby, is hereby ratified, approved and confirmed in all
respects.
7. PERFORMANCE GUARANTOR REAFFIRMATION. Without limiting the
generality of Section 6 of this Amendment above, the Performance Guarantor
hereby acknowledges, ratifies and reaffirms the Undertaking and all of its other
obligations and undertakings under Article VIII of the Sale Agreement, and
acknowledges and agrees that subsequent to, and taking into account all of the
terms and conditions of the Amendment, the Undertaking and all of its other
obligations and undertakings under Article VIII of the Sale Agreement are and
shall remain in full force and effect in accordance with the terms thereof.
8. REFERENCE TO RELATED DOCUMENTS. From and after the date
hereof, each reference in the Sale Agreement, the Purchase Agreement and the
other Related Documents to "this Agreement", "hereof", or "hereunder" or words
of like import, and all references to such agreement in any and all agreements,
instruments, documents, notes, certificates and other writings of every kind and
nature shall be deemed to mean such Sale Agreement, Purchase Agreement or other
Related Documents, as the case may be, as amended by this Amendment.
9. ADDITIONAL FEE. SPE and WFL shall, jointly and severally,
pay an additional fee to Agent in connection with this Amendment in an amount
equal to 0.25% of the daily average balance of Capital Investments for the
period of 30 days ending on January 15, 2004, which additional fee shall be
payable on January 15, 2004 and which is non-refundable and is fully earned on
the date hereof.
10. MISCELLANEOUS.
10.1 Except as expressly amended hereby, the Sale
Agreement, the Purchase Agreement and the Related Documents shall remain
unaltered and in full force and effect, and each of the parties hereby ratifies
and confirms each of the Related Documents to which it is a party.
10.2 THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF ILLINOIS WITHOUT
REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW.
10.3 EACH OF THE COMPANIES HEREBY ACKNOWLEDGES AND
AGREES THAT IT IRREVOCABLY (i) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION, FIRST,
OF ANY UNITED STATES FEDERAL COURT, AND SECOND, IF FEDERAL JURISDICTION IS NOT
AVAILABLE, OF ANY ILLINOIS COURT, IN EITHER CASE SITTING IN XXXX COUNTY,
ILLINOIS, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE
AGREEMENTS, AND (ii) WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF AN ACTION OR PROCEEDING
IN SUCH COURTS.
10.4 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 shall be deemed to be an original and all of which
when taken together shall constitute one and the same Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
GENERAL ELECTRIC CAPITAL CORPORATION,
AS AGENT
By:
-------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION,
AS PURCHASER
By:
------------------------------------
Name:
Title:
WABASH NATIONAL CORPORATION
By:
------------------------------------
Name:
Title:
WNC RECEIVABLES, LLC
By:
-----------------------------------
Name:
Title:
WNC RECEIVABLES MANAGEMENT CORP.
By:
-----------------------------------
Name:
Title:
WNC FINANCING, LLC
By:
-----------------------------------
Name:
Title:
NOAMTC, INC.
By:
------------------------------------
Name:
Title:
WABASH NATIONAL, L.P.
By:
------------------------------------
Name:
Title:
[Signature Page to Omnibus Amendment No. 2]
AMENDED SCHEDULE CC
FORM OF COMPLIANCE CERTIFICATE
To: Agent, as Buyer's Assignee (as defined in the Agreement described below)
This Compliance Certificate is furnished pursuant to that
certain that certain Receivables Sale and Contribution Agreement, dated as of
April 11, 2002, (as amended, modified, renewed or extended from time to time,
the "Agreement") among Wabash National Corporation (the "Performance
Guarantor"), NOAMTC, INC. and WABASH NATIONAL, L.P., (each, an "Originator") and
WNC Receivables, LLC (the "Buyer"). Unless otherwise defined herein, capitalized
terms used in this Compliance Certificate have the meanings ascribed thereto in
the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _________________ of the Performance
Guarantor and the [Chief Financial Officer] [Treasurer];
2. I have reviewed the terms of the Agreement and I have made,
or have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Performance Guarantor and its Subsidiaries
during the accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose,
and I have no knowledge of, the existence of any condition or event which
constitutes a Default or Unmatured Default (as defined in the Credit Agreement)
during or at the end of the accounting period covered by the attached financial
statements or as of the date of this Certificate, except as set forth below; and
4. Schedule I and Schedule II attached hereto set forth
financial data and computations evidencing the Performance Guarantor's
compliance with certain covenants of the Agreement and the Excess Cash Flow
during the accounting period covered by the attached financial statements, all
of which data and computations are true, complete and correct.
Described below are the exceptions, if any, to paragraph 3,
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Performance Guarantor has taken,
is taking, or proposes to take with respect to each such condition or event:
-----------------------------------------------------------------
-----------------------------------------------------------------
The foregoing certifications, together with the computations
set forth in Schedule I and Schedule II hereto and the financial statements
delivered with this Certificate in support hereof, are made and delivered this
_____ day of __________, ____.
--------------------------------
[Insert Name of Officer]
Wabash National Corporation
Quarterly Compliance Certificate Worksheet
COMPLIANCE CERTIFICATE
QUARTERLY SCHEDULE OF COMPLIANCE AS OF _________, 2003
A. INTENTIONALLY OMITTED
B. INTENTIONALLY OMITTED
C. MINIMUM CONSOLIDATED EQUITY (SECTION (B) OF ANNEX 4.04(l))
1. Actual Amount:
a. Consolidated Equity $ -
b. Minimum Required Amount $ -
D. MAXIMUM LEVERAGE VALUATION RATIO (SECTION (C) OF ANNEX 4.04(l))
1. Actual Amount:
a. Term Debt (Notes & Bank Debt) $ -
b. Revolver (Super Revolver) $ -
-----------
c. Total Debt (a+b) $ -
d. Cash and Cash Equivalents $ -
e. Net Inventory $ -
f. Net Prepaid and Other Expenses $ -
g. Net PP&E $ -
-----------
h. Total Assets (d+e+f+g) $ -
i. Leverage Ratio (c/h) x
-----
2. Minimum Required Amount x
-----
E. MINIMUM CONSOLIDATED CUMULATIVE (SINCE 1/1/2003) EBITDA
(SECTION (D) OF ANNEX 4.04(l))
1. Actual Amount:
a. Consolidated Operating Income $ -
b. Foreign and Domestic Taxes Deducted in Operating Income $ -
c. Interest Expense Deducted in Operating Income $ -
d. Eligible Asset Disposition Charges $ -
e. Eligible Asset Impairment Charges $ -
f. Eligible Miscellaneous Non-Cash Charges $ -
g. Eligible Restructuring Charges $ -
h. Depreciation Expense Deducted in Operating Income $ -
i. Amortization Expense Deducted in Operating Income $ -
j. Interest Income Included in Operating Income $ -
k. Total Tax Benefit Included in Operating Income $ -
l. Consolidated EBITDA (a+b+c+d+e+f+g+h+i-j-k) $ -
2. Minimum Required Amount $ -
F. INTENTIONALLY OMITTED
G. MAXIMUM CAPITAL EXPENDITURES (SECTION (F) OF ANNEX 4.04(l))
1. Actual Amount:
a. Capital Expenditures (Year-to-Date) $ -
2. Maximum Annual Allowed Amount $ 4,000,000
H. MAXIMUM FINANCE CONTRACTS (SECTION (G) OF ANNEX 4.04(l))
1. Actual Amount:
a. Finance Contracts (Year-To-Date) $ -
2. Maximum Annual Allowed Amount $ 5,000,000
A. MAXIMUM OTHER UNSECURED INDEBTEDNESS (SECTION (A) OF ANNEX 4.04(o))
1. Actual Amount: $_____________
2. Maximum Permitted Amount: $3,000,000
B. SALES OF ASSETS (SECTION (B)(v) OF ANNEX 4.04(o))
1. Actual Amount:
a. Total amount of sales of assets in current
fiscal year to date (See Schedule II for
detail) $_____________
2. Maximum Permitted Amount: $5,000,000
C. INTENTIONALLY OMITTED
D. INVESTMENTS (SECTION (D)(vii) OF ANNEX 4.04(o))
For each new Investment pursuant to Section (D)(vii) of Annex 4.04(o)
of the Agreement during the most recent fiscal quarter covered by this
Certificate, complete the following:
1. Date and brief description of nature of new Investment:
-------------------------------------------------------
-------------------------------------------------------
2. Actual Amount:
a. Amount of new Investment $_____________
b. Amount of existing Investments under
Section (D)(vii) of Annex 4.04(o) +_____________
c. Total Investments under =$_____________
Section (D)(vii) of Annex 4.04(o)
3. Maximum Permitted Amount: $5,000,000
E. LEASES (SECTION (N) OF ANNEX 4.04(o))
1. Actual Amount of Leases: $__________
2. Maximum Permitted Amount: $5,000,000
SCHEDULE II TO COMPLIANCE CERTIFICATE
Schedule of Compliance as of __________, ____
(Dollars in Thousands)
A. Sales of Assets
[List separate sales and amounts] $_____________
______________
______________
______________
______________
Total $_____________
