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WABASH NATIONAL CORPORATION
AND
THE SUBSIDIARIES OF WABASH NATIONAL CORPORATION
IDENTIFIED ON THE SIGNATURE PAGES HERETO,
AS BORROWERS
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AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
Dated as of December 30, 2004
$125,000,000
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FLEET CAPITAL CORPORATION,
INDIVIDUALLY AND AS AGENT FOR ANY LENDER WHICH IS
OR BECOMES A PARTY HERETO,
NATIONAL CITY BUSINESS CREDIT, 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, AND
THE ADDITIONAL LENDERS NOW AND FROM
TIME TO TIME PARTY HERETO
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TABLE OF CONTENTS
Page
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SECTION 1. CREDIT FACILITY..................................................................... 1
1.1. Loans............................................................................. 1
1.2. Letters of Credit; LC Guaranties.................................................. 5
1.3. Reallocation of Revolving Loan Commitments........................................ 7
1.4. Borrowing Agent................................................................... 7
1.5. Alternate Currencies.............................................................. 7
1.6. Dollars; Conversion to Dollars.................................................... 8
1.7. Judgment Currency; Contractual Currency........................................... 8
1.8. Common Enterprise................................................................. 9
1.9. Effect of Amendment and Restatement............................................... 9
SECTION 2. INTEREST, FEES AND CHARGES.......................................................... 10
2.1. Interest.......................................................................... 10
2.2. Computation of Interest and Fees.................................................. 11
2.3. Fee Letter........................................................................ 11
2.4. Letter of Credit and LC Guaranty Fees............................................. 11
2.5. Unused Line Fee................................................................... 12
2.6. Intentionally omitted............................................................. 12
2.7. Audit Fees........................................................................ 12
2.8. Reimbursement of Expenses......................................................... 12
2.9. Bank Charges...................................................................... 13
2.10. Collateral Protection Expenses; Appraisals........................................ 13
2.11. Payment of Charges................................................................ 14
2.12. No Deductions..................................................................... 14
2.13. Joint and Several Obligations..................................................... 14
2.14. Subrogation and Contribution...................................................... 17
SECTION 3. LOAN ADMINISTRATION................................................................. 18
3.1. Manner of Borrowing Revolving Credit Loans/LIBOR Option........................... 18
3.2. Payments.......................................................................... 21
3.3. Mandatory and Optional Prepayments................................................ 23
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............................................................. 26
3.8. Increased Costs................................................................... 26
3.9. Basis for Determining Interest Rate Inadequate.................................... 27
3.10. Sharing of Payments, Etc.......................................................... 28
SECTION 4. TERM AND TERMINATION................................................................ 28
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4.1. Term of Agreement................................................................. 28
4.2. Termination....................................................................... 29
SECTION 5. SECURITY INTERESTS.................................................................. 30
5.1. Security Interest in Collateral................................................... 30
5.2. Other Collateral.................................................................. 31
5.3. Lien Perfection; Further Assurances............................................... 32
5.4. Lien on Realty.................................................................... 32
SECTION 6. COLLATERAL ADMINISTRATION........................................................... 33
6.1. General........................................................................... 33
6.2. Administration of Accounts........................................................ 34
6.3. Administration of Inventory....................................................... 36
6.4. Administration of Equipment....................................................... 36
6.5. Payment of Charges................................................................ 37
SECTION 7. REPRESENTATIONS AND WARRANTIES...................................................... 37
7.1. General Representations and Warranties............................................ 37
7.2. Continuous Nature of Representations and Warranties............................... 46
7.3. Survival of Representations and Warranties........................................ 47
SECTION 8. COVENANTS AND CONTINUING AGREEMENTS.............................................. 47
8.1. Affirmative Covenants............................................................. 47
8.2. Negative Covenants................................................................ 52
8.3. Specific Financial Covenants...................................................... 60
SECTION 9. CONDITIONS PRECEDENT................................................................ 60
9.1. Conditions Precedent to Initial Loans and Other Initial Credit Accommodations..... 60
9.2. Conditions Precedent to all Loans and other Credit Accommodations................. 61
SECTION 10. EVENTS OF DEFAULT; RIGHTS AND REMEDIES ON DEFAULT.................................. 61
10.1. Events of Default................................................................. 61
10.2. Acceleration of the Obligations................................................... 64
10.3. Other Remedies.................................................................... 64
10.4. Set Off and Sharing of Payments................................................... 66
10.5. Remedies Cumulative; No Waiver.................................................... 67
SECTION 11. THE AGENT.......................................................................... 67
11.1. Authorization and Action.......................................................... 67
11.2. Agent's Reliance, Etc............................................................. 68
11.3. Fleet and Affiliates.............................................................. 69
11.4. Lender Credit Decision............................................................ 69
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11.5. Indemnification................................................................... 69
11.6. Rights and Remedies to be Exercised by Agent Only................................. 70
11.7. Agency Provisions Relating to Collateral.......................................... 70
11.8. Agent's Right to Purchase Commitments............................................. 71
11.9. Right of Sale, Assignment, Participations......................................... 71
11.10. Amendment......................................................................... 73
11.11. Resignation of Agent; Appointment of Successor.................................... 74
11.12. Audit and Examination Reports; Disclaimer by Lenders.............................. 74
11.13. Syndication Agent; Documentation Agents........................................... 75
11.14. Quebec Security................................................................... 75
SECTION 12. MISCELLANEOUS...................................................................... 76
12.1. Power of Attorney................................................................. 76
12.2. Indemnity......................................................................... 77
12.3. Sale of Interest.................................................................. 78
12.4. Severability...................................................................... 78
12.5. Successors and Assigns............................................................ 78
12.6. Cumulative Effect; Conflict of Terms.............................................. 78
12.7. Execution in Counterparts......................................................... 79
12.8. Notice............................................................................ 79
12.9. Consent........................................................................... 80
12.10. Credit Inquiries.................................................................. 80
12.11. Time of Essence................................................................... 80
12.12. Entire Agreement.................................................................. 80
12.13. Interpretation.................................................................... 80
12.14. Confidentiality................................................................... 81
12.15. GOVERNING LAW; CONSENT TO FORUM................................................... 81
12.16. WAIVERS BY BORROWERS.............................................................. 82
12.17. Advertisement..................................................................... 83
12.18. English Language.................................................................. 83
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AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT is made as of
this 30th day of December, 2004, by and among FLEET CAPITAL CORPORATION
("Fleet"), a Rhode Island corporation with an office at Xxx Xxxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, 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 BUSINESS CREDIT, 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, and each of WABASH NATIONAL CORPORATION, a Delaware
corporation with its chief executive office and principal place of business at
0000 Xxxxxxxx Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx 00000 ("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. This Agreement amends,
supercedes, restates and replaces in its entirety that certain Loan and Security
Agreement dated as of September 23, 2003 by and among Agent, Syndication Agent,
Documentation Agents, Lenders and Borrowers (the "Original Loan Agreement").
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 $125,000,000
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
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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 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; and (viii) 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
$__________ 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 Xxxx and Hold Inventory,
Eligible Accounts. Eligible Equipment or Eligible Real Property, 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
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$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 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 payment of fees and expenses associated with the
transactions contemplated hereby, (ii) Borrowers' general operating
capital needs (including Capital Expenditures permitted hereunder) in a
manner consistent with the provisions of this Agreement and all applicable
laws, (iii) the funding of Permitted Acquisitions, (iv) prepayment of the
Breadner Debt as set forth in subsection 8.2.6(ii) and (v) other general
corporate purposes.
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 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
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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 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. For purposes of this Agreement,
Swingline Loans shall include any "Swingline Loans" made under the
Original Loan Agreement and outstanding on the Closing Date.
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.
1.1.6. Request for Increase of Revolving Loan Commitments. Lenders
agree that Borrowers may, so long as no Default or Event of Default has
occurred and is continuing, deliver a written notice to Agent and each
Lender (an "Increase Notice") requesting an increase in the Revolving Loan
Commitments in a minimum amount of $25,000,000 (a "Requested Revolver
Increase") with an aggregate limit for all Requested Revolver Increases of
$75,000,000. Three such Increase Notices may be delivered during the Term
and each Increase Notice shall be accompanied with a Compliance
Certificate confirming that the Fixed Charge Coverage Ratio for the 12
month period ending on the last day of the calendar month that ended most
recently
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prior to the delivery of such Increase Notice, is greater than 1.10 to
1.0. If Borrowers deliver an Increase Notice, each Lender shall have the
option to participate in the Requested Revolver Increase upon terms and in
amounts determined by Agent by delivering a written notice to Agent and
Borrowers within ten Business Days of such Lender's receipt of the
Increase Notice (it being agreed and understood that such Lender shall be
deemed to have elected not to participate in the Requested Revolver
Increase if it does not respond to the Increase Notice within ten Business
Days of its receipt thereof). If one or more Lenders with Revolving Loan
Commitments elect not to participate in the Requested Revolver Increase,
or if such participation is for less than the full amount of the Requested
Revolver Increase, then Agent may, at its option and in its separate
capacities as a Lender, elect to participate in such remaining portion of
the Requested Revolver Increase. If there is less than full participation
by existing Lenders with Revolving Loan Commitments in the Requested
Revolver Increase after the foregoing procedures, then one or more new
Lenders acceptable to Agent and Borrowers may be added as parties to this
Agreement for purposes of participating in such remaining portion. After
giving effect to the procedures described in this paragraph, each Lender
participating in the Requested Revolver Increase shall have its Revolving
Loan Commitment increase to the extent of its participation as determined
by Agent and, upon the request of such Lender, Borrowers will execute a
replacement Revolving Note for such Lender reflecting the increased amount
of its Revolving Loan Commitment. Borrowers agree to execute such
amendments and supplements to the Loan Documents as Agent reasonably deems
necessary in connection with a Requested Revolver Increase and further
agree to pay to Lenders a commitment fee and to Agent an arrangement fee
to be determined by Agent and Borrowers in connection with the Requested
Revolver Increase.
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. Prior to the Closing Date, Bank issued certain letters of credit
for the account of one or more Borrowers under the Original Loan
Agreement, which Letters of Credit are still outstanding on the Closing
Date and are more particularly described on Exhibit 1.2.1 hereto (the
"Existing Letters of Credit"). Agent, Lenders and Borrowers hereby agree
that the Existing Letters of Credit shall be deemed to be Letters of
Credit issued under this Agreement on the Closing Date.
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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 Guaranties supporting documentary letters of credit, more
than 180 days after the issuance date thereof.
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 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 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.
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1.3. Reallocation of Revolving Loan Commitments.
Each Borrower and each Lender hereby acknowledges and agrees that on
the Closing Date each Lender will each assign portions of its existing
Revolving Loan Commitment to and among the various other Lenders, without
recourse and without representations or warranties other than that no
liens or security interests were created by such Lender on such Lender's
Revolving Loan Commitment, in amounts sufficient to cause each Lender's
respective Revolving Loan Commitment to be the amounts set forth below
such Lender's name on the signature pages to this Agreement.
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 xxxx-to-market conversion completed in the manner set
forth in Section 1.6.
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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 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.
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(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 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.
1.9. Effect of Amendment and Restatement.
Upon the execution and delivery of this Agreement, the indebtedness
and other liabilities of each Borrower previously governed by the Original Loan
Agreement shall continue in full force and effect, but shall be governed by the
terms and conditions set forth in this Agreement. Such liabilities, together
with any and all additional liabilities incurred by each Borrower hereunder or
under any of the other Loan Documents, shall continue to be secured by, among
other things, the Collateral, whether now existing or hereafter acquired and
wheresoever located, all as more specifically set forth herein and in the
Security Documents. Each Borrower hereby reaffirms its obligations, liabilities,
grants of security interests, pledges and the validity
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of all covenants by such Borrower contained in any and all Security Documents.
The execution and delivery of this Agreement shall not constitute a novation or
repayment of the indebtedness outstanding under the Original Loan Agreement.
Each Borrower hereby acknowledges and agrees that any and all references in any
Loan Documents to the Original Loan Agreement shall be deemed to be amended to
refer to this Agreement. Each Borrower hereby reaffirms its obligations,
liabilities and indebtedness arising under each of the Loan Documents existing
on the date hereof, in each case after giving effect to the provisions of the
preceding sentence.
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 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 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.
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.
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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 amended and restated 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 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 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 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
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(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.
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 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
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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 Portions from time to time. Borrowers shall also
jointly and severally 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 commencing on January 1, 2005, at
Borrowers' joint and several expense, (a) Agent shall have the option to obtain
Availability Appraisals and (b)(i) as requested by Agent or Majority Lenders in
their reasonable credit judgment or (ii) promptly after any period
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of 10 consecutive days during which Availability is less than $40,000,000, 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 or (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.
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 Portions from time to time.
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
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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 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 Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx 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.
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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.
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 xxxxxxxx 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
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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 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
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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 Portion), provided, however, that no
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. 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
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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 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.
3.1.3. 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.
3.1.4. 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 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; provided
however that the applicable Borrower shall have 48 hours to review and pay
expenses related to attorneys' fees prior to Agent charging the
appropriate Borrower's Loan Account hereunder related thereto.
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
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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
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
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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 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. 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
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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 Portions and then to
LIBOR Portions.
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
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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 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. In
each case, 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 (a) Eligible Accounts, Eligible Inventory, Eligible Xxxx 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 or (b) Eligible
Equipment or Eligible Real Property, such prepayment shall (i) be
specifically applied against any limits or sublimits contained in the
Borrowing Base that are predicated on such Collateral and (ii) reduce the
Fixed Asset Sublimit by an amount equal to the appraised value of such
Collateral set forth in the most recently delivered Availability
Appraisal; provided however, that sales of Identified Real Property shall
not permanently reduce the Fixed Asset Sublimit hereunder.
3.3.2. Prepayments after Availability Appraisals. Promptly upon
receipt of an Availability Appraisal, Borrowers shall pay to Agent for the
ratable benefit of Lenders as a mandatory prepayment of the Loans, as
herein provided, a sum equal to, as applicable, (a) the amount that
Availability after giving effect to such Availability Appraisal is less
than Availability immediately prior to the delivery of such Availability
Appraisal or (b) the amount that 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, plus reserves, exceeds,
or would exceed with the making of any such Revolving Credit Loan, the
Borrowing Base (as calculated giving effect to such Availability
Appraisal). Each such prepayment shall be applied to reduce the
outstanding principal balance of the Revolving Credit Loans and as a
permanent reduction in the Fixed Asset Sublimit, but shall not permanently
reduce the Revolving Loan Commitments.
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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. Any such prepayment shall be applied to reduce the
outstanding principal balance of the Revolving Credit Loans, but shall not
permanently reduce the Revolving Loan Commitments.
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 reduce the outstanding principal balance of
the Revolving Credit Loans, but shall not permanently reduce the Revolving
Loan Commitments.
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. Any such prepayment shall be applied to reduce the
outstanding principal balance of the Revolving Credit Loans, but shall not
permanently reduce the Revolving Loan Commitments.
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 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
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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 the Term.
Except for charges under subsection 3.2.5 applicable to prepayments of
LIBOR Portions, such prepayments shall be without premium or penalty.
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 disbursed to a Borrower or otherwise at a Borrower's direction in the
manner set forth in subsection 3.1.3, 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 the payment of any other
Obligation (other than amounts related to Product Obligations) due to the
Agent or any Lender by any Borrower; and seventh, 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.
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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.
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
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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;
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
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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.
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, 2007 (the
"Term"), unless terminated as provided in Section 4.2 hereof.
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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 Borrowers' right
to reduce the amount of the Revolving Loan Commitments pursuant to
subsection 3.3.7, 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.
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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 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 Xxxx and Hold
Inventory and Trailer Inventory);
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(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;
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 XX Xxxxxxx 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
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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 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 owned on the Closing Date.
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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 Mortgages.
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. Apex Trailer Inventory shall
be located either (a) at one or more of the business locations set forth
in Exhibit 6.1.1 hereto, 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.
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
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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. Concurrently with the delivery of each Borrowing
Base Certificate described in subsection 8.1.4, each Company shall deliver
to Agent a detailed aged trial balance of all of its Accounts in such form
and with such detail as may be reasonably requested by Agent from time to
time ("Schedule of Accounts"), and upon Agent's request therefor, such
additional information with respect to such Accounts as Agent shall
reasonably request. Concurrently with the delivery of the financial
statements to be delivered pursuant to subsection 8.1.3(i), each Company
shall deliver to Agent a listing of Account Debtors, showing all names and
addresses.
6.2.2. Intentionally Omitted.
6.2.3. Account Verification. At any time or times hereafter that
Availability is less than $40,000,000 for 10 consecutive days or an Event
of Default is in existence, any of Agent's officers, employees or agents
shall have the right, 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 Dominion 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
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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 (i) such
banks located outside Canada to deposit all payments or other remittances
received (other than funds in the Excluded Accounts not to exceed $250,000
in the aggregate at any time) to the Dominion Account, (ii) such banks
located in Canada to deposit all payments or other remittances received
("Canadian Deposits") to the Dominion Account immediately upon the receipt
of notice from Agent that a Dominion Period is in effect and (iii) Bank
One, N.A. to deposit all payments or other remittances received in the
Legacy Account ("Legacy Deposits") 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, (a) all Canadian Deposits and
Legacy Deposits shall immediately become the property of Agent in the
ratable benefit of Lenders and shall immediately be deposited to the
Dominion Account and (b) 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.
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 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
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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, Xxxx 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 Xxxx and Hold Inventory reports
for each Company concurrently with the delivery of each Borrowing Base
Certificate described in subsection 8.1.4, which reports will be in such
other format and detail as Agent shall reasonably request. 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. 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
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book value of its Equipment and all dispositions made in accordance with
subsection 8.2.9 hereof.
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 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.
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
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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 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
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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;
(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
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(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, 2003, 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 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 September 30, 2004,
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. 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
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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 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
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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, 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.
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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.
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.
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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.
7.1.27. 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.
7.1.28. 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
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will not violate any provision of any such statute or any rule, regulation
or order issued by the Securities and Exchange Commission.
7.1.29. 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.
7.1.30. 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.
7.1.31. 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.
7.1.32. Joint Venture Investments. Each of the Joint Venture
investments of each Borrower and its Subsidiaries on the Closing Date are
listed on Exhibit 7.1.32 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.
7.1.33. Anti-Terrorism Laws. None of the Borrowers or their
Subsidiaries or, to the knowledge of the Borrowers or their Subsidiaries,
any of their Affiliates is in violation of any laws relating to terrorism
or money laundering ("Anti-Terrorism Laws"), including Executive Order No.
13224 on Terrorist Financing, effective September 24, 2001 (the "Executive
Order"), and the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Public Law 107-56, signed into law October 26, 2001 (the "USA
Patriot Act"). None of the Borrowers or their Subsidiaries or, to the
knowledge of the Borrowers or their Subsidiaries, any of their Affiliates
or brokers or other agents of is, acting or benefiting in any capacity in
connection with any Loans hereunder is any of the following:
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(i) a person that is listed in the annex to, or is otherwise
subject to the provisions of, the Executive Order;
(ii) a person owned or controlled by, or acting for or on
behalf of, any person that is listed in the annex to, or is
otherwise subject to the provisions of, the Executive Order;
(iii) person with which any Lender is prohibited from dealing
or otherwise engaging in any transaction by any Anti-Terrorism Law;
(iv) a person that commits, threatens or conspires to commit
or supports "terrorism" as defined in the Executive Order; or
(v) a person that is named as a "specially designated national
and blocked person" on the most current list published by the USA
Treasury Department Office of Foreign Assets Control ("OFAC") at its
official website or any replacement website or other replacement
official publication of such list.
To each of their respective knowledge, no Borrower or any of their
Subsidiaries or, to the knowledge of the Borrowers or their Subsidiaries,
any broker or other agent of the Borrowers or any of their Subsidiaries,
is acting in any capacity in connection with any Loans hereunder (i)
conducts any business or engages in making or receiving any contribution
of funds, goods or services to or for the benefit of any person described
in paragraph (b) above, (ii) deals in, or otherwise engages in any
transaction relating to, any property or interests in property blocked
pursuant to the Executive Order, or (iii) engages in or conspires to
engage in any transaction that evades or avoids, or has the purpose of
evading or avoiding, or attempts to violate, any of the prohibitions set
forth in any Anti-Terrorism Law.
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.
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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 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
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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 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
Chief Financial Officer, Treasurer or Assistant 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 Chief Financial Officer,
Treasurer or Assistant 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
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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 any accountants' letter to Wabash's
management that is prepared in connection with such financial statements.
Concurrently with the delivery of the financial statements 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 Certificate in the form of Exhibit 8.1.3 hereto
executed by the Chief Financial Officer, Treasurer or Assistant Treasurer
of Wabash (a "Compliance Certificate").
8.1.4. Borrowing Base Certificates. On or before the 20th day of
each fiscal quarter from and after the date hereof, Borrowers shall
deliver to Agent, in form reasonably 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.
If at any time the aggregate amount of the Obligations exceeds
$50,000,000, on or before the 20th day after the month next ending
thereafter (other than a month that is the end of a fiscal quarter),
Borrowers shall deliver to Agent, in form and reasonably acceptable to
Agent, a Borrowing Base Certificate as of the last day of the immediately
preceding month calculated in a manner reasonably acceptable to Agent,
with such supporting materials as Agent shall reasonably request. If (a)
Borrowers deem it advisable, or (b) 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, Eligible Xxxx and Hold Inventory
information, Eligible Equipment information and Eligible Real Property
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 leases and other similar agreements entered into
between any Borrower or any of its Subsidiaries and any landlord,
processor, distributor, warehouseman or
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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 30 days after 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) and each its domestic Joint Ventures, 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 or
Joint Venture, a security agreement, in form and substance reasonably
acceptable to Agent, pursuant to which such Subsidiary or Joint Venture,
as applicable, 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 or Joint Venture of such Person, other than foreign
Subsidiaries that are Inactive 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.
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
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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 xxxx,
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. Intentionally Omitted.
8.1.14. LCM Used Inventory Analysis. Not later than 45 days after
the end of each fiscal quarter hereafter during which Availability is less
than $40,000,000 for any period of 10 consecutive days, 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 Chief Financial Officer, Treasurer or Assistant 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
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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 xxxxx 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.
8.2. 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;
(iii) with notice to Agent, dissolution or other termination
of existence of any Inactive Subsidiary, any Wind Down Subsidiary,
or any of Apex, Continental Transit Corporation, Cloud Oak Flooring
Company, Inc., FTSI Distribution Company, L.P., Wabash National
Services, L.P., Wabash Technology Corporation and WTSI Technology
Corporation; and
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(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").
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 Breadner Debt;
(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;
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(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,
$20,000,000.
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 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
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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 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.
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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 Breadner Debt (including, without
limitation, any mandatory or voluntary prepayment, purchase or
redemption), except (a) regularly scheduled cash payments of
principal and interest pursuant to the Breadner Debt 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 thereby,
voluntary prepayments of the Breadner Debt from time to time so long
as after giving effect to each such prepayment, Availability is at
least $40,000,000;
(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; or
(iv) amend or modify any Convertible Note Document, Breadner
Debt 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.
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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 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; and
(iv) Distributions in the form of cash dividends declared and
paid by Wabash to holders of Common Stock from time to time, in each
case, so long as, and to the extent that, (a) no Default or Event of
Default is then in existence or would be caused thereby after giving
effect thereto, (b) after giving effect to the proposed
Distribution, Borrowers are in compliance with Fixed Charge Coverage
Ratio pursuant to Section 8.3 on a pro forma, but unadjusted, basis
as of the most recent testing date (c) immediately after completing
such Distribution, Borrowers have Availability of at least
$25,000,000, (d) the amount of all such Distributions by Wabash,
measured at the time made, does not exceed $10,000,000 in any fiscal
year of Wabash, unless otherwise approved in writing by Majority
Lenders, and (e) at least 5 Business Days prior to such
Distribution, Borrowers have delivered to Agent a certificate of
Wabash's Chief Financial Officer, Treasurer or Assistant Treasurer,
in form and substance reasonably satisfactory to Agent, certifying
compliance with each of the foregoing requirements and showing all
applicable calculations.
8.2.8. Intentionally Omitted.
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;
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(iii) dispositions of investments described in paragraphs
(iv), (v), (vi) and (vii) of the definition of the term "Restricted
Investments";
(iv) intentionally omitted;
(v) sales, leases and other dispositions of Property with a
fair market value of up to $20,000,000 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 $500,000, 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;
(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. Xxxx-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 to make, a sale to any customer
on a xxxx 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 (unless within 10 days thereafter, the applicable Borrower,
Subsidiary and/or Joint Venture, as applicable, has complied with the
requirements of subsection 8.1.8).
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.
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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 or create any new class of preferred stock
(other than an amendment to the terms of the Borrower's Series A Junior
Participating Preferred Stock or the creation of a new class of junior
preferred stock with substantially similar terms as the Series A Junior
Participating Preferred Stock in connection with the extension of the
expiration date of Borrower's current Rights Agreement, dated as of
December 4, 1995) 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
$10,000,000. 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 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.
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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, 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. 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 or the
consummation of the transactions contemplated hereby or thereby.
9.1.5. Material Adverse Effect. As of the Closing Date, since
September 30, 2004, 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
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reasonably be expected to have a material adverse effect on the
syndication of the Total Credit Facility.
9.1.6. Closing Fees. Borrowers shall have paid all fees and expenses
owing to Agent 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.
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,
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.
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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 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 Breadner Debt 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
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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), 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
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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 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
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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 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
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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 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.
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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.
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
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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 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
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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.
11.5. Indemnification.
Lenders agree to indemnify Agent (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 in any way relating to or arising out of this Agreement
or any other Loan Document or any action taken or omitted by Agent 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 gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse Agent 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, 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
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Person, including any Borrower, any creditor of any Borrower, a liquidator,
administrator or trustee in bankruptcy, recovers from Agent any amount found to
have been wrongfully paid to Agent or disbursed by Agent to Lenders, then
Lenders, in accordance with their respective Aggregate Percentages, shall
reimburse Agent, 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. 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
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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, the entire Revolving Loan
Commitment of such Lender, (ii) Agent 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
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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, 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 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
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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 Revolving
Loan Commitments, or any Lender's Revolving 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
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) modify the definitions of any of the terms Eligible Account,
Eligible Inventory, Eligible Xxxx and Hold Inventory, Eligible Trailer
Inventory, Eligible Equipment or Eligible Real Property if the effect of such
modification is to increase the amount available to be borrowed in respect of
the Revolving Loans, (7) reduce the number of Lenders that shall be required for
Lenders or any of them to take any action hereunder, (8) release or discharge
any Person liable for the performance of any obligations of any Borrower
hereunder or under any of the Loan Documents, (9) amend any provision of this
Agreement that requires the consent of all Lenders or consent to or waive any
breach thereof, (10) amend the definition of the term "Majority Lenders", (11)
amend Section 1.1.2, subsection 1.1.4(i), subsection 3.4.2, this Section 11.10
or subsection 10.3.6, (12) amend the definitions of either of the terms Dominion
Event or Dominion Period, (13) release any of the Collateral, unless otherwise
permitted pursuant to Section 11.7 hereof or (14) 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
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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 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.
11.12. 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;
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(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 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
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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:
(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,
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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
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
xxxx, xxxx 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
and each Lender (and each of their Affiliates), and each of their respective
officers, directors, employees, agents and advisors and hold Agent 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
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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 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 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
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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 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
Xxx Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Loan Administration Manager
Facsimile No.: (000) 000-0000
With a copy to: Goldberg, Kohn, Bell, Black,
Xxxxxxxxxx & Moritz, Ltd.
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to any Borrower: c/o Wabash National Corporation
0000 Xxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Facsimile No.: (000) 000-0000
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With a copy to: Xxxxx & Xxxxxxx
000 Xxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
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.
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.
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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.
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 XXXX 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
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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 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
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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 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 xxx xxxx, 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.
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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: Xxxxxx Xxxxx
Title: Senior Vice President and Chief Financial
Officer
WABASH NATIONAL, L.P.
________________________________________________
By: Xxxxxx Xxxxx
Title: Senior Vice President and Chief Financial
Officer
WNC CLOUD MERGER SUB, INC.
________________________________________________
By: Xxxxxx Xxxxx
Title: Senior Vice President and Chief Financial
Officer
FTSI DISTRIBUTION COMPANY, L.P.
________________________________________________
By: Xxxxxx Xxxxx
Title: Senior Vice President and Chief Financial
Officer
Amended and Restated Loan and Security Agreement
FLEET CAPITAL CORPORATION,
as Agent and as a Lender
By______________________________________
Title___________________________________
Revolving Loan Commitment: $45,000,000
Amended and Restated Loan and Security Agreement
NATIONAL CITY BUSINESS CREDIT, INC.,
as Syndication Agent and as a Lender
By_______________________________________
Title____________________________________
Revolving Loan Commitment: $22,000,000
Amended and Restated Loan and Security Agreement
GENERAL ELECTRIC
CAPITAL CORPORATION,
as a Documentation Agent and as a Lender
By________________________________________
Title_____________________________________
Revolving Loan Commitment: $16,000,000
Amended and Restated Loan and Security Agreement
WACHOVIA BANK,
NATIONAL ASSOCIATION,
as a Documentation Agent and as a Lender
By__________________________________________
Title_______________________________________
Revolving Loan Commitment: $15,000,000
Amended and Restated Loan and Security Agreement
FIFTH THIRD BANK,
as a Lender
By______________________________________________
Title___________________________________________
Revolving Loan Commitment: $5,000,000
Amended and Restated Loan and Security Agreement
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By________________________________________
Title_____________________________________
Revolving Loan Commitment: $12,000,000
Amended and Restated Loan and Security Agreement
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as a Lender
By_________________________________________
Title______________________________________
Revolving Loan Commitment: $10,000,000
Amended and Restated Loan and Security Agreement
APPENDIX A
GENERAL DEFINITIONS
When used in the Amended and Restated Loan and Security Agreement
dated as of December 30, 2004, by and among FLEET CAPITAL CORPORATION,
individually as a Lender and as Agent for Lenders, NATIONAL CITY BUSINESS
CREDIT, 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,
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 Amended and
Restated 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 Revolving Loan Commitment
divided by (ii) the aggregate of all Revolving Loan Commitments.
Agreed Alternate Currency - as defined in Section 1.5 of the
Agreement.
Agreement - the Amended and Restated 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.
Anti-Terrorism Laws - as defined in Section 7.1.33 of the Agreement.
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.
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 Portion, the LIBOR Portion and the
Unused Line Fee:
Base Rate Portion 0.00%
LIBOR Portion 1.50%
Unused Line Fee 0.250%
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
December 31, 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:
Financial Measurement Base Rate Portion LIBOR Portion Unused Line Fee
--------------------- ----------------- ------------- ---------------
Less than 1.75 to 1.00 0.25% 2.25% 0.375%
Greater than or equal to 1.75 to 1.00 0.00% 2.00% 0.375%
and less than 2.50 to 1.00
Greater than or equal to 2.50 to 1.00 0.00% 1.75% 0.250%
and less than 3.00 to 1.00
Greater than or equal to 3.00 to 1.00 0.00% 1.50% 0.250%
and less than 3.50 to 1.00
Greater than or equal to 3.50 to 1.00 0.00% 1.25% 0.250%
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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.
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, as permitted pursuant to the terms of
the 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.
Availability Appraisal - collectively, (i) an appraisal of the
orderly liquidation value of Equipment of the Companies and (ii) an
appraisal of the fair market value of real Property of the Companies, in
each case prepared by an employee of Agent or a third party appraiser
reasonably acceptable to Agent, addressed to Agent, in form, scope and
methodology, and containing assumptions and other terms, reasonably
acceptable to Agent.
Bank - Bank of America, N.A.
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).
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Base Rate Portion - that portion of the Revolving Credit Loans that
is not subject to a LIBOR Option.
Xxxx 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 Xxxx and Hold
Inventory at such date, plus (B) 65% of the value
of Eligible Inventory consisting of raw materials,
parts, or finished goods (including Xxxx and Hold
Inventory not constituting Eligible Xxxx and Hold
Inventory) at such date plus (C) 40% of the value
of Eligible Inventory consisting of
work-in-process at such date; plus
(c) the least of (i) the Fixed Asset Sublimit or (ii)
the sum of (A) 85% of the net orderly liquidation
value of Eligible Equipment at such date and (B)
65% of the fair market value of Eligible Real
Property at such date.
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 Xxxx 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
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a third party appraiser reasonably acceptable to Agent and shall be as
reflected in the most recent appraisal delivered to Agent under the
Agreement, (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 the Agreement, (5) the net orderly liquidation
value of Eligible Equipment shall be determined as set forth in the
Availability Appraisal and (6) the fair market value of Eligible Real
Property shall be determined as set forth in the Availability Appraisal.
Borrowing Base Certificate - a certificate by the Chief Financial
Officer, Treasurer or Assistant Treasurer 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 Xxxxxx Xxxxxxxx in
the amount of $5,000,000 maturing on January 15, 2006.
Breadner Debt Documents - collectively, the agreements, instruments
and documents evidencing and securing the Breadner Debt.
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
Illinois or the State of Indiana or is a day on which banking institutions
located in any of such states are closed.
Canadian Deposits - as defined in subsection 6.2.4 of the Agreement.
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.
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.
A-5
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.
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.
Common Stock - the common stock of Wabash, par value $1.00 per
share.
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.
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.
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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 the 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.
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.
A-7
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
Xxxxxxxxx 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
(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
A-8
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
xxxx-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
(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
A-9
(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 Equipment - shall mean Equipment of a Company, in each case
that is acceptable to Agent based on the criteria set forth below.
Equipment shall be Eligible Equipment if:
(i) it is owned by a Company on the Closing Date;
(ii) it is included in the most recent Availability Appraisal;
(iii) it is in good condition and is not worn-out, damaged or
defective and is not obsolete;
(iv) it is located within the United States or Canada at one
of the Company's locations;
(v) in the case of Equipment constituting motor vehicles
subject to a certificate of title statute, the original certificate
of title has been delivered to Agent, along with a certificate of
title lien application executed by the applicable Borrower, showing
Agent as the secured party;
(vi) it is at all times subject to Agent's duly perfected,
first priority security interest and is not subject to a Lien that
is not a Permitted Lien;
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(vii) it does not constitute fixtures;
(viii) it is owned by a Company and is not leased to a Company
by a third party; and
(ix) it is not otherwise deemed unacceptable by Agent in its
reasonable credit judgment.
Eligible Xxxx and Hold Inventory - Xxxx 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 WNLP's premises for more than 30 days prior to shipment to the customer
thereof and (c) is owned by WNLP.
Eligible Inventory - Inventory of a Company (other than packaging
materials and supplies, tooling, patterns, samples and literature) which
Agent, in its reasonable 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 Xxxx 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
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(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 Real Property - shall mean real Property of a Company, in each
case that is acceptable to Agent based on the criteria set forth below. Real
Property shall be Eligible Real Property if:
(i) it is owned by a Company on the Closing Date;
(ii) it is not Identified Real Property;
(iii) it is included in the most recent Availability Appraisal;
(iv) it is located within the United States or Canada;
(v) it is at all times subject to Agent's duly perfected, first
priority security interest and is not subject to a Lien that is not a
Permitted Lien; and
(vi) it is not otherwise deemed unacceptable by 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 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.
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Excluded Accounts - those certain Deposit Accounts of Wabash National
Services, L.P. at Bank of America, N.A. (account number 3752179833) and WNTC at
Bank of America, N.A. (account number 3752180013).
Executive Order - as defined in Section 7.1.33 of the Agreement.
Existing Letters of Credit - as defined in subsection 1.2.1 of the
Agreement.
Fee Letter - as defined in Section 2.3 of the Agreement.
Fixed Asset Sublimit - means $28,000,000, which amount shall be reduced by
$1,000,000 on the first day of each April, July, October and January, commencing
on April 1, 2005, and further reduced as otherwise provided in this Agreement.
Fixed Charge Coverage Ratio - as defined in Exhibit 8.3 to the Agreement.
GAAP - generally accepted accounting principles in the United States of
America in effect from time to time.
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 executed on the
Original Closing Date by each Subsidiary Guarantor, in form and substance
satisfactory to Agent, together with each other guaranty thereafter or 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.
Increase Notice - as defined in Section 1.1.6 of the Agreement.
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;
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(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.
Identified Real Property - means the real Property owned by the Borrowers
at the following locations: 0000 Xxxx Xxxxxxx Xxxxxx, X. Xxxxxxxxxx, XX 00000;
0000 Xxxxxxx Xxxxxxxxx, Xxxxxx, XX 00000; 0000 Xxxxxxxx Xxxxxx XX, Xxxxxx, XX
00000; 0000 Xxxxxx Xxxx, Xxxxxxxxxxxxxx, XX, 00000; 0000 Xxxxxxxxxxxx Xxxx,
Xxxxxxxx, XX 00000, 0000 Xxxxxx Xxxxxxx, Xxxxxxx, XX 00000, 000 00xx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 and 0000 00xx Xxxxxx XX, Xxxxxxx, Xxxxxxx.
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 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 xxx 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 (i) any
Interest Period which
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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.
Joint Venture - a Person (whether or not a Subsidiary) in which any
Borrower or any of its Subsidiaries is an equity holder.
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.
Legacy Account - that certain Deposit Account of Wabash at Bank One, N.A.
(account number 56900.21).
Legacy Deposits - as defined in subsection 6.2.4. of the Agreement.
Letter of Credit - any standby or documentary letter of credit issued by
Agent or any Affiliate of Agent for the account of a Borrower.
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
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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 based on the LIBOR.
LIBOR 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 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 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 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.
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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 Documents - the Agreement, the Other Agreements and the Security
Documents.
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 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
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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 heretofore,
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.
Multiemployer Plan - has the meaning set forth in Section 4001(a)(3) of
ERISA.
Notes - the Revolving 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.
OFAC - as defined in Section 7.1.33 of the Agreement.
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.
Original Closing Date - September 23, 2003.
Original Loan Agreement - as defined in the Preamble to the Agreement.
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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.
Overadvance - as defined in subsection 1.1.2 of the Agreement.
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 Chief Financial
Officer, Treasurer or Assistant Treasurer certifying that all of the
applicable conditions contained herein to treating such acquisition
as a Permitted Acquisition have been satisfied;
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(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 $30,000,000 or (ii) for such
acquisition, together with all other acquisitions completed in the
current calendar year, exceeds $30,000,000, 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 $40,000,000; and
(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, Xxxx 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 $10,000,000. 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.
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 Original 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 heretofore, now or at any time hereafter securing the whole or any
part of the Obligations.
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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 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. For purposes of the Agreement,
"Product Obligations", shall include any of the foregoing services or facilities
entered into by any Borrower on or prior to the Closing Date and still in
existence on the Closing Date.
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.
Regulation D - Regulation D of the Board of Governors of the Federal
Reserve System.
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.
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Requested Revolver Increase - as defined in Section 1.1.6 of the
Agreement.
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
evidencing such investment is delivered to Agent to be held as security
for the Obligations pursuant to the terms of the Agreement;
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(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;
(xi) investments existing on the date hereof and listed on Exhibit
8.2.12 hereto;
(xii) investments otherwise expressly permitted pursuant to the
Agreement; and
(xiii) investments not listed in clauses (i) through (xii) above
(including without limitation investments in Joint Ventures and
Subsidiaries) in an aggregate amount not in excess of $15,000,000.
Revolving Credit Loan - a Loan made by any Lender pursuant to Section 1.1
of the Agreement.
Revolving Credit Maximum Amount - $125,000,000, 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 Amended and Restated 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.
A-23
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.
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 Business Credit, Inc., in its capacity
as Syndication Agent for the Lenders under the Agreement.
Term - as defined in Section 4.1 of the Agreement.
Total Credit Facility - $125,000,000, as such amount may be increased or
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.
USA Patriot Act - as defined in Section 7.1.33 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).
A-24
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.
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 1.2.1 Existing Letters of Credit
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 7.1.13 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 7.1.31 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 8.2.12 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 1.2.1
EXISTING LETTERS OF CREDIT
Exhibit 1.2.1 - Page 1
EXHIBIT 8.1.3
COMPLIANCE CERTIFICATE
[_____________________]
_______________,___
Fleet Capital Corporation, as Agent
Xxx Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
The undersigned, the [CHIEF FINANCIAL OFFICER/TREASURER/ASSISTANT
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 Amended and Restated Loan
and Security Agreement dated December 30, 2004 among Wabash, as a Borrower, the
Subsidiaries of Wabash party thereto as Borrowers, Agent, National City Business
Credit, 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 THE FIXED CHARGE COVERAGE RATIO AS OF THE LAST DAY OF THE PERIOD IS
_____:1.0.]
[1/2]. No Default exists on the date hereof, other than:
__________________ ________________________________________________ [IF NONE, SO
STATE]; and
[2/3]. No Event of Default exists on the date hereof, other than
__________ ____________________________________________________ [IF NONE, SO
STATE].
Very truly yours,
________________________________________
[CHIEF FINANCIAL OFFICER/TREASURER/ASSISTANT TREASURER]
Exhibit 8.1.3 - Page 1
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 and (ii) impairment charges relating to fixed assets or intangibles
for such period but excluding any extraordinary gains for such period), all as
determined for Wabash and its Subsidiaries on a Consolidated basis and in
accordance with GAAP.
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) the aggregate amount of Distributions made during such period
pursuant to clause (iv) of subsection 8.2.7 of the Agreement, 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), 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.
Exhibit 8.3 - Page 1
COVENANTS
FIXED CHARGE COVERAGE RATIO. If Availability is less than
$40,000,000 at any time, Borrowers shall not permit the Fixed Charge Coverage
Ratio for the 12 month period ending on the last day of the calendar month that
ended most recently prior to such time, to be less than 1.10 to 1.0.
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 (Xxxxxx), Georgia
8. Lafayette, Indiana (North Plant)
9. Lafayette, Indiana (South Plant)
10. Fort Madison, Iowa
11. Xx. Xxxx, Xxxxxxxxx
00. Xxxxxxxxx, Xxxxx Xxxxxxxx (23rd Xx. Xxxx)
00. Xxxxxxxxx, Xxxxx Xxxxxxxx (Xxxxxx Xxxxxx)
00. Memphis, Tennessee
15. Roanoke, Virginia
Exhibit 10.3.6 - Page 1
EXHIBIT A-2
FORM OF ASSIGNMENT AND ACCEPTANCE
Exhibit A-2
