Exhibit 10.30
ANNEX X
to
RECEIVABLES SALE AND CONTRIBUTION AGREEMENT
and
RECEIVABLES PURCHASE AND SERVICING AGREEMENT,
each dated as of April 11, 2002,
Definitions and Interpretation
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SECTION 1. Definitions and Conventions. Capitalized terms used in the Sale
Agreement and the Purchase Agreement shall have (unless otherwise provided
elsewhere therein) the following respective meanings:
"ACCOUNTS" shall mean the Collection Account and the Lockbox Accounts,
collectively.
"ACCOUNTING CHANGES" shall mean, with respect to any Person, (a) changes in
accounting principles required by the promulgation of any rule, regulation,
pronouncement or opinion of the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants (or any successor thereto or
any agency with similar functions); (b) changes in accounting principles
concurred in by such Person's certified public accountants; (c) purchase
accounting adjustments under A.P.B. 16 or 17 and EITF 88-16, and the application
of the accounting principles set forth in FASB 109, including the establishment
of reserves pursuant thereto and any subsequent reversal (in whole or in part)
of such reserves; and (d) the reversal of any reserves established as a result
of purchase accounting adjustments.
"ACCUMULATED FUNDING DEFICIENCY" shall mean an "accumulated funding
deficiency" as defined in Section 412 of the Code and Section 302 of ERISA,
whether or not waived.
"ACCRUED SERVICING FEE" shall mean, as of any date of determination within
a Settlement Period, the sum of the Servicing Fees calculated for each day from
and including the first day of the Settlement Period through and including such
date.
"ACCRUED UNUSED FACILITY FEE" shall mean, as of any date of determination
within a Settlement Period, the sum of the Unused Facility Fees calculated for
each day from and including the first day of the Settlement Period through and
including such date.
"ACQUISITION" shall mean any transaction, or any series of related
transactions, consummated on or after the Closing Date, by which the Parent or
any of its Subsidiaries (a) acquires any going business or all or substantially
all of the assets of any firm, corporation or division thereof which constitutes
a going business, whether through purchase of assets, merger or otherwise or (b)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by percentage of voting
power) of the outstanding partnership interests of a partnership or a majority
(by percentage or voting power) of the outstanding ownership interests of a
limited liability company.
"ACQUISITION PURCHASE PRICE" shall mean the total consideration and other
amounts payable in connection with any Acquisition, including, without
limitation, any portion of the consideration payable in cash, the value of any
capital stock or other Equity Interests of the Parent or any Subsidiary (other
than the Seller or the Independent Member) issued as
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consideration for such Acquisition, all Indebtedness and other monetary
liabilities incurred or assumed in connection with such Acquisition and all
transaction costs and expenses incurred in connection with such Acquisition.
"ADDITIONAL AMOUNTS" shall mean any amounts payable to any Affected Party
under Sections 2.09 or 2.10 of the Purchase Agreement.
"ADDITIONAL COSTS" shall have the meaning assigned to it in Section 2.09(b)
of the Purchase Agreement.
"ADMINISTRATIVE AGENT" shall mean the Agent, in its capacity as the Agent
for the Purchasers under the Purchase Agent.
"ADVERSE CLAIM" shall mean any claim of ownership or any Lien, other than
any ownership interest or Lien created under the Sale Agreement or the Purchase
Agreement.
"AFFECTED PARTY" shall mean each of the following Persons: the Purchasers,
the Agent, the Depositary and each Affiliate of the foregoing Persons.
"AFFILIATE" shall mean, with respect to any Person, (a) each Person that,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, five percent (5%) or more of the Equity Interests
having ordinary voting power in the election of directors of such Person, (b)
each Person that controls, is controlled by or is under common control with such
Person, or (c) each of such Person's officers, directors, joint venturers and
partners. For the purposes of this definition, "control" of a Person shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of its management or policies, whether through the ownership of voting
securities, by contract or otherwise.
"AGENT" shall have the meaning set forth in the Preamble of the Purchase
Agreement.
"AGGREGATE INTEREST EXPENSE" shall mean, with respect to the Parent and its
consolidated Subsidiaries for any fiscal period, interest expense (whether cash
or non-cash) of such Person determined in accordance with GAAP for the relevant
period ended on such date, including interest expense with respect to any Funded
Indebtedness of such Person and interest expense for the relevant period that
has been capitalized on the balance sheet of such Person.
"AGGREGATE INTEREST COVERAGE RATIO" shall mean, as of any date the same is
to be determined, the ratio of (i) Consolidated EBITDA as of such date for (A)
in the case of calculating Consolidated EBITDA for each relevant month in the
Parent's fiscal year ending on or about December 31, 2002, the cumulative period
of months ending on and after April 30, 2002 and (B) in the case of calculating
Consolidated EBITDA for each month thereafter, the period of four consecutive
fiscal quarters then ending to (ii) Aggregate Interest Expense during the same
applicable periods.
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"AGREEMENT ACCOUNTING PRINCIPLES" shall mean generally accepted accounting
principles as in effect from time to time in the United States, applied in a
manner consistent with those used in preparing the financial statements referred
to in Section 4.01(f) of the Sale Agreement.
"ANCILLARY SERVICES AND LEASE AGREEMENT" shall mean that certain Ancillary
Services and Lease Agreement dated as of April 11, 2002 between Parent and the
Seller.
"APPENDICES" shall mean, with respect to any Related Document, all
exhibits, schedules, annexes and other attachments thereto, or expressly
identified thereto.
"ASSIGNMENT AGREEMENT" shall have the meaning assigned to it in Section
14.02(a) of the Purchase Agreement.
"AUTHORIZED OFFICER" shall mean, with respect to any corporation or limited
liability company, as the case may be, the Chief Executive Officer, Chief
Financial Officer, Treasurer, Chairman or Vice-Chairman of the Board, the
President, any Vice President, the Secretary, the Treasurer, any Assistant
Secretary, any Assistant Treasurer and each other officer of such corporation or
limited liability company specifically authorized in resolutions of the Board of
Directors or Board of Managers of such corporation or limited liability company,
as the case may be, to sign agreements, instruments or other documents on behalf
of such corporation in connection with the transactions contemplated by the Sale
Agreement, the Purchase Agreement and the other Related Documents.
"AVAILABILITY" shall mean, as of any date of determination, the amount
equal to the lesser of: (a) the Available Accounts Receivables minus (i)
Availability Block and minus (ii) accrued Servicing Fee for the Settlement
Period in which the date of determination falls, and (b) the Maximum Purchase
Limit.
"AVAILABILITY BLOCK" shall mean
(a) for the period from and after the date hereof through and
including June 15, 2002, the greater of
(i) 25% of the aggregate amount of Available Accounts
Receivables (but in no event greater than $15,000,000) or
(ii) $7,500,000,
and
(b) at all times thereafter, $15,000,000; PROVIDED, HOWEVER, that if
the Availability Block is less than $15,000,000 on June 15, 2002, then the
Availability Block between June 16, 2002 and June 30, 2002 shall mean the actual
Availability Block in effect on June 15, 2002 plus $250,000 per diem thereafter
until the earlier to occur of
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(i) June 30, 2002 (when it shall be $15,000,000), or
(ii) the day on which the sum of such actual Availability Block
plus such $250,000 increments is not less than $15,000,000.
"AVAILABLE ACCOUNTS RECEIVABLES" shall mean the Investment Base multiplied
by the Purchase Discount Rate.
"BANKRUPTCY CODE" shall mean the provisions of title 11 of the United
States Code, 11 U.S.C. xx.xx. 101 et seq.
"BENEFIT PLAN" shall mean a defined benefit plan as defined in Section
3(35) of ERISA (other than a Multiemployer Plan) in respect of which the Parent
or any other member of the Controlled Group is, or within the immediately
preceding six (6) years was, an "employer" as defined in Section 3(5) of ERISA.
"BILLED AMOUNT" shall mean, with respect to any Receivable, the amount
billed on the Billing Date to the Obligor thereunder.
"BILLING DATE" shall mean, with respect to any Receivable, the date on
which the invoice with respect thereto was generated and billed to the Obligor.
"BREAKAGE COSTS" shall have the meaning assigned to it in Section 2.10 of
the Purchase Agreement.
"BRINGDOWN CERTIFICATE" shall have the meaning assigned to it in Section
5.02 of the Purchase Agreement.
"BUSINESS DAY" shall mean any day that is not a Saturday, a Sunday or a day
on which banks are required or permitted to be closed in any of the States of
Illinois, Indiana or New York.
"BUYER" shall mean Seller in its capacity as the purchaser under the Sale
Agreement.
"BUYER INDEMNIFIED PERSON" shall have the meaning assigned to it in Section
5.01 of the Sale Agreement.
"CAPITAL INVESTMENT" shall mean, as of any date of determination, the
amount equal to (a) the aggregate deposits made by the Purchaser to the
Collection Account pursuant to Section 2.04(b)(i) of the Purchase Agreement on
or before such date, minus (b) the aggregate amounts disbursed to the Purchaser
in reduction of Capital Investment pursuant to Section 6.03 of the Purchase
Agreement on or before such date.
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"CAPITAL INVESTMENT AVAILABLE" shall mean, as of any date of determination,
the amount, if any, by which Availability exceeds Capital Investment, in each
case as of the end of the immediately preceding day.
"CAPITALIZED LEASE" shall mean, with respect to any Person, any lease of
any property (whether real, personal or mixed) by such Person as lessee that, in
accordance with Agreement Accounting Principles, would be required to be
classified and accounted for as a capital lease on a balance sheet of such
Person.
"CAPITALIZED LEASE OBLIGATION" shall mean, with respect to any Capitalized
Lease of any Person, the amount of the obligation of the lessee thereunder that,
in accordance with Agreement Accounting Principles, would appear on a balance
sheet of such lessee in respect of such Capitalized Lease.
"CASH EQUIVALENTS" shall mean (i) marketable direct obligations issued or
unconditionally guaranteed by the government of the United States; (ii) domestic
and Eurodollar certificates of deposit and time deposits, bankers' acceptances
and floating rate certificates of deposit issued by any commercial bank
organized under the laws of the United States, any state thereof, the District
of Columbia, or its branches or agencies and having capital and surplus in an
aggregate amount not less than $500,000,000 (fully protected against currency
fluctuations for any such deposits with a term of more than ten (10) days);
(iii) shares of money market, mutual or similar funds having net assets in
excess of $500,000,000 maturing or being due or payable in full not more than
one hundred eighty (180) days after the Parent's acquisition thereof and the
investments of which are limited to investment grade securities (i.e.,
securities rated at least Baa by Xxxxx'x Investors Service, Inc. or at least BBB
by Standard & Poor's Ratings Group) and (iv) commercial paper of United States
banks and bank holding companies and their subsidiaries and United States
finance, commercial, industrial or utility companies which, at the time of
acquisition, are rated A-1 (or better) by Standard & Poor's Ratings Group or P-1
(or better) by Xxxxx'x Investors Service, Inc.; provided that the maturities of
such Cash Equivalents shall not exceed 365 days.
"CHANGE OF CONTROL" shall mean any event, transaction or occurrence as a
result of which (a) any person or group of persons (within the meaning of the
Securities Exchange Act of 1934, as amended) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the Securities
Exchange Commission under the Securities Exchange Act of 1934, as amended) of
20% or more of the issued and outstanding shares of capital stock of the Parent
having the right to vote for the election of directors of the respective entity
under ordinary circumstances; (b) during any twelve (12) consecutive calendar
months ending after the Closing Date, individuals who at the beginning of such
twelve-month period constituted the board of directors of the Parent (together
with any new directors whose election by such board or whose nomination for
election by the shareholders of the Parent was approved by a vote of a majority
of the directors still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) shall cease for any reason to constitute a majority of the board of
directors of the Parent then in office; (c) the Parent shall cease to own and
control, directly or indirectly, all of the economic and voting rights
associated
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with all of the outstanding Equity Interests of the other Originators, of the
Independent Member or of the Seller; or (d) the Parent has sold, transferred,
conveyed, assigned or otherwise disposed of all or substantially all of the
assets of the Parent.
"CLOSING DATE" shall mean April 12, 2002.
"CODE" shall mean the Internal Revenue Code of 1986 and any regulations
promulgated thereunder.
"COLLATERAL AGENT" shall mean Bank One, NA, in its capacity as collateral
agent for the Lenders and the Noteholders pursuant to the Intercreditor and
Collateral Agency Agreement, or any successor collateral agent appointed
pursuant to the terms thereof.
"COLLATERAL DOCUMENTS" shall mean that certain security agreement dated as
of the Closing Date, executed by the Parent and each of Parent's Domestic
Subsidiaries (other than Seller and Independent Member) in existence on the
Closing Date in favor of the Collateral Agent for the benefit of the Secured
Parties (as such term is defined in the Intercreditor and Collateral Agency
Agreement), the pledge agreements from time to time executed by Parent or its
Domestic Subsidiaries in favor of the Collateral Agent for the benefit of the
Secured Parties, the mortgages and deeds of trust from time to time executed by
the Parent or any of the Domestic Subsidiaries, and all other security
agreements, pledges, powers of attorney, assignments, financing statements,
vehicle titles and all other instruments and documents delivered to the
Collateral Agent pursuant to the Credit Agreement, together with all agreements,
instruments and documents referred to therein or contemplated thereby.
"COLLECTION ACCOUNT" shall mean Bankers Trust Company, New York, New York,
ABA No. 000000000, Account No. 00000000, Account Name: GECC/CAF Depository,
Reference: Wabash National CFC4337, established by the Agent pursuant to the
requirements set forth in Section 6.01(b) of the Purchase Agreement.
"COLLECTIONS" shall mean, with respect to any Receivable, all cash
collections and other proceeds of such Receivable (including late charges, fees
and interest arising thereon, and all recoveries with respect thereto that have
been written off as uncollectible) BUT EXCLUDING, HOWEVER, such collections,
other proceeds and any purchase price paid to the Originators by the Buyer with
respect to and as consideration for the sale of the Transferred Receivables by
any of the Originators to the Buyer.
"COMMITMENT" shall mean, with respect to each Purchaser, its commitment to
purchase its Pro Rata Share of the Purchaser Interest under the Purchase
Agreement in the amount set forth opposite its name on the signature pages of
the Purchase Agreement or any Assignment Agreement executed pursuant thereto.
"COMMITMENT REDUCTION NOTICE" shall have the meaning assigned to it in
Section 2.02(a) of the Purchase Agreement.
"COMMITMENT TERMINATION NOTICE" shall have the meaning
assigned to it in Section 2.02(b) of the Purchase Agreement.
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"CONCENTRATION DISCOUNT AMOUNT" shall mean, with respect to any Obligor,
and as of any date of determination after giving effect to all Eligible
Receivables to be transferred on such date, the amount by which the Outstanding
Balance of Eligible Receivables owing by such Obligor exceeds the product of (a)
the Outstanding Balance of all Eligible Receivables on such date, and (b) 10% or
such other percentage (a "SPECIAL CONCENTRATION LIMIT") for such Obligor
designated by the Agent in its reasonable credit judgment; provided that in the
case of an Obligor and any Affiliate of such Obligor, the Concentration Limit
shall be calculated as if such Obligor and such Affiliate are one Obligor; and
provided, further, that the Agent may, upon not less than five (5) Business
Days' notice to Seller, cancel any Special Concentration Limit, and provided,
further, that the Special Concentration Limit for the largest Obligor and its
Affiliates shall be limited to 22.5% of the Outstanding Balance of all Eligible
Receivables and the Special Concentration Limit for the second largest Obligor
and its Affiliates shall be limited to 15.0% of the Outstanding Balance of all
Eligible Receivables.
"CONSOLIDATED EBITDA" shall mean, for any period, on a consolidated basis
for the Parent and its Subsidiaries, the sum of the amounts for such period,
without duplication of (i) Consolidated Operating Income, plus (ii) charges
against income for foreign taxes and U.S. income taxes to the extent deducted in
computing Consolidated Operating Income, plus (iii) Interest Expense to the
extent deducted in computing Consolidated Operating Income, plus (iv)
depreciation expense to the extent deducted in computing Consolidated Operating
Income, plus (v) amortization expense, including, without limitation,
amortization of goodwill and other intangible assets to the extent deducted in
computing Consolidated Operating Income, plus (vi) other non-cash charges (in an
aggregate amount not in excess of $15,000,000 during any fiscal year of the
Parent in accordance with Agreement Accounting Principles to the extent deducted
in computing Consolidated Operating Income, minus (x) the total interest income
of the Parent and its Subsidiaries to the extent included in computing
Consolidated Operating Income minus (y) the total tax benefit reported by the
Parent and its Subsidiaries to the extent included in computing Consolidated
Operating Income.
"CONSOLIDATED EQUITY" shall mean as of the date of any determination
thereof, the total stockholders' equity of the Parent and its Subsidiaries on a
consolidated basis, all as determined in accordance with Agreement Accounting
Principles.
"CONSOLIDATED OPERATING INCOME" shall mean, with reference to any period,
the net operating income (or loss) of the Parent and its Subsidiaries for such
period (taken as a cumulative whole on a consolidated basis) including without
limitation all restructuring expenses for such period (exclusive of "other
income/expenses" as reflected in the Parent's consolidated statement of income
of the Parent and its Subsidiaries for such period and related to non-operating
and non-recurring income and expenses), as determined in accordance with
Agreement Accounting Principles, after eliminating all offsetting debits and
credits between the Performance Guarantor and its Subsidiaries and all other
items required to be eliminated in the
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course of the preparation of consolidated financial statements of the
Performance Guarantor and its Subsidiaries in accordance with Agreement
Accounting Principles.
"CONSOLIDATED TAX ADJUSTED EQUITY" shall mean, as of the date of any
termination thereof, Consolidated Equity plus the cumulative federal, state and
local income tax benefit reported by Parent in accordance Agreement Accounting
Principles.
"CONTAMINANT" shall mean any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBS"), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental Laws.
"CONTINGENT OBLIGATION," as applied to any Person, shall mean any
obligation (except the endorsement in the ordinary course of business of
negotiable instruments for deposit or collection) of such Person guaranteeing or
in effect guaranteeing any Indebtedness, dividend or other obligation of any
other Person in any manner, whether directly or indirectly, including (without
limitation) obligations incurred through an agreement, contingent or otherwise,
by such Person:
(a) to purchase such Indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such
Indebtedness or obligation, or (ii) to maintain any working capital or other
balance sheet condition or any income statement condition of any other Person or
otherwise to advance or make available funds for the purchase or payment of such
Indebtedness or obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such Indebtedness or
obligation of the ability of any other Person to make payment of the
Indebtedness or obligation; or
(d) otherwise to assure the owner of such Indebtedness or obligation
against loss in respect thereof.
In any computation of the Indebtedness or other liabilities of the Obligor
under any Contingent Obligation, the Indebtedness or other obligations that are
the subject of such Contingent Obligation shall be assumed to be direct
obligations of such Obligor.
"CONTRACT" shall mean any agreement (including any invoice) pursuant to, or
under which, an Obligor shall be obligated to make payments with respect to any
Receivable.
"CONTRIBUTED RECEIVABLES" shall have the meaning assigned to it in Section
2.01(d) of the Sale Agreement.
"CONTROLLED GROUP" shall mean the group consisting of (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of
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Section 414(b) of the Code) as the Parent; (ii) a partnership or other trade or
business (whether or not incorporated) which is under common control (within the
meaning of Section 414(c) of the Code) with the Parent; and (iii) a member of
the same affiliated service group (within the meaning of Section 414(m) of the
Code) as the Parent, any corporation described in clause (i) above or any
partnership or trade or business described in clause (ii) above.
"CREDIT AND COLLECTION POLICIES" shall mean the credit, collection,
customer relations and service policies of the Originators in effect on the
Closing Date, as the same may from time to time be amended, restated,
supplemented or otherwise modified with the written consent of the Agent.
"CREDIT AGREEMENT" shall mean that certain Amended and Restated Credit
Agreement dated as of April 11, 2002, among the Parent, as borrower, the lenders
party thereto and the Credit Facility Agent.
"CREDIT FACILITY" shall mean the Credit Agreement and the other loan
documents executed in connection therewith, together with such amendments,
restatements, supplements or modifications thereto or any refinancings,
replacements or refundings thereof as may be agreed to by the Purchaser and the
Agent.
"CREDIT FACILITY AGENT" shall mean Bank One, Indiana, N.A. in its capacity
as administrative agent under the Credit Agreement, or its successor appointed
pursuant to the Credit Agreement.
"CUSTOMARY PERMITTED LIENS" shall mean:
(a) Liens (other than Environmental Liens and Liens in favor of the
IRS or the PBGC) with respect to the payment of taxes, assessments or
governmental charges in all cases which are not yet due or which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provisions are being maintained in
accordance with Agreement Accounting Principles;
(b) statutory Liens of landlords and Liens of suppliers, mechanics,
carriers, materialmen, warehousemen or workmen and other similar Liens imposed
by law created in the ordinary course of business for amounts not yet due or
which are being contested in good faith by appropriate proceedings and with
respect to which adequate reserves or other appropriate provisions are being
maintained in accordance with Agreement Accounting Principles;
(c) Liens (other than Environmental Liens and Liens in favor of the
IRS or the PBGC) incurred or deposits made in the ordinary course of business in
connection with worker's compensation, unemployment insurance or other types of
social security benefits or to secure the performance of bids, tenders, sales,
contracts (other than for the repayment of borrowed money), surety, appeal and
performance bonds; provided that (A) all such Liens do not in the aggregate
materially detract from the value of assets or property of the Parent and its
Subsidiaries taken as a whole or materially impair the use thereof in the
operation of their businesses taken as a whole,
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and (B) all Liens securing bonds to stay judgments or in connection with appeals
that do not secure at any time an aggregate amount exceeding $5,000,000;
(d) Liens arising with respect to zoning restrictions, easements,
licenses, reservations, covenants, rights-of-way, utility easements, building
restrictions and other similar charges or encumbrances on the use of real
property which do not interfere in any material respect with the ordinary
conduct of the business of the Parent or any of its Subsidiaries;
(e) Liens of attachment or judgment with respect to judgments, writs
or warrants of attachment, or similar process against the Parent or any of its
Subsidiaries which do not constitute a Default (as such term is defined in the
Credit Agreement) under the Credit Agreement;
(f) Liens arising from leases, subleases or licenses granted to others
which do not interfere in any material respect with the business of the Parent
or any of its Subsidiaries; and
(g) any interest or title of the lessor in the property subject to any
operating lease entered into by the Parent or any of its Subsidiaries in the
ordinary course of business.
"DAILY DEFAULT MARGIN" shall mean, for any day on which a Termination Event
has occurred and is continuing, two percent (2.0%) divided by 360.
"DAILY INVESTMENT BASE CERTIFICATE" shall have the meaning assigned to it
in Section 2.03(a)(i) of the Purchase Agreement.
"DAILY MARGIN" shall mean, for any day, the Per Annum Daily Margin on such
day divided by 360.
"DAILY YIELD" shall mean, for any day, the aggregate of the following for
each portion of the Capital Investment: the product of (a) the portion of the
Capital Investment outstanding on such day at a given Daily Yield Rate,
multiplied by (b) the sum of (i) such Daily Yield Rate, plus (ii) the applicable
Daily Margin on such day for such Daily Yield Rate, plus (iii) if a Termination
Event has occurred and is continuing, the Daily Default Margin.
"DAILY YIELD RATE" shall mean, for any day during a Settlement Period, (a)
the LIBOR Rate or Index Rate, as applicable, on such day, divided by (b) 360.
"DEFAULTED RECEIVABLE" shall mean any Receivable (a) with respect to which
any payment, or part thereof, remains unpaid for more than 60 days from its
Maturity Date or 90 days from its invoice date, (b) with respect to which the
Obligor thereunder has taken any action, or suffered any event to occur, of the
type described in Sections 9.01(c) or 9.01(d) of the Purchase Agreement or (c)
that otherwise is determined to be uncollectible and is written off in
accordance with the Credit and Collection Policies.
"DEPOSITARY" shall mean Banker's Trust Company, in its capacity as the
depositary for GECC.
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"DILUTION FACTORS" shall mean, with respect to any Receivable, any credits,
rebates, freight charges, cash discounts, volume discounts, cooperative
advertising expenses, royalty payments, warranties, cost of parts required to be
maintained by agreement (whether express or implied), warehouse and other
allowances, disputes, setoffs, chargebacks, defective returns, other returned or
repossessed goods, inventory transfers, allowances for early payments and
trade-ins and other similar allowances that are reflected on the books of each
Originator and made or coordinated with the usual practices of the Originator
thereof; provided, that any allowances or adjustments in accordance with the
Credit and Collection Policies made on account of the insolvency of the Obligor
thereunder or such Obligor's inability to pay shall not constitute a Dilution
Factor.
"DILUTION RATIO" shall mean, as of any date of determination, the ratio
(expressed as a percentage) of:
(a) the sum of (i) the aggregate Dilution Factors during the twelve
consecutive Settlement Periods most recently ended on or prior to the date of
determination (exclusive of any Dilution Factors arising from trade-ins during
such twelve Settlement Periods), plus, without duplication (ii) the aggregate
warranty claims paid in cash or credit during such twelve Settlement Periods,
to
(b) the aggregate Billed Amount of all Transferred Receivables
originated during such twelve Settlement Periods net of the amount of any
trade-ins in cash or credit during such twelve Settlement Periods.
"DILUTION RESERVE RATIO" shall mean, on any date of determination, the sum
of (a) the product of (i) two multiplied by (ii) the Dilution Ratio, plus (b)
5%.
"DISQUALIFIED STOCK" shall mean any Equity Interest that, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is 91 days after the earlier of (a) March 30, 2004 and (b) the date of
termination of the Revolving Loan Commitments (as such term is defined in the
Credit Agreement).
"DOL" shall mean the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLARS" or "$" shall mean lawful currency of the United States of
America.
"DOMESTIC SUBSIDIARY" shall mean a Subsidiary organized under the laws of a
jurisdiction located in the United States of America.
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"DYNAMIC PURCHASE DISCOUNT RATE" shall mean, as of any date of
determination, the rate equal to (a) 100% minus (b) the Dilution Reserve Ratio.
"ELECTION NOTICE" shall have the meaning assigned to it in Section 2.01(d)
of the Sale Agreement.
"ELIGIBLE RECEIVABLE" shall mean, as of any date of determination, a
Transferred Receivable:
(a) that is not a liability of an Obligor (i) organized under the laws
of any jurisdiction outside of the United States of America and Canada
(including the District of Columbia but otherwise excluding its territories and
possessions), (ii) having its principal place of business outside of the United
States of America (including the District of Columbia but otherwise excluding
its territories and possessions), (iii) that is an Affiliate of the Seller or
the applicable Originator, (iv) that is a government or a governmental
subdivision or agency, or (v) that is a natural person;
(b) that is only denominated and payable in Dollars in the United
States of America;
(c) that is not and will not be subject to any right of rescission,
set-off (including, without limitation, set-offs against Receivables by reason
of any customer deposit, any guaranty of value of trade-ins or any Contingent
Obligation), recoupment, counterclaim, dispute or defense, whether arising out
of transactions concerning the Contract therefor or otherwise, that has not been
waived in writing in a manner satisfactory to the Agent or, in the case of
set-offs, by execution of a waiver of offset letter in the form of Schedule ER-C
to this Annex X to the Sale Agreement and the Purchase Agreement; PROVIDED,
HOWEVER, that if such right of rescission, set-off, recoupment, counterclaim,
dispute or defense affects only a portion of the Outstanding Balance of such
Receivable, then such Receivable may be deemed an Eligible Receivable to the
extent of the portion of such Outstanding Balance which is not so affected; and
PROVIDED FURTHER that if such right of set-off arises from the applicable
Originator's agreement to accept a trailer as a trade-in which has not yet been
delivered to such Originator, such right of set-off shall not render the
applicable Receivable ineligible at any time prior to May 12, 2002 so long as
the aggregate Outstanding Balance of all such Receivables does not exceed
$5,000,000;
(d) that is not a Defaulted Receivable or an Unapproved Receivable;
(e) which is not the liability of an Obligor as to which more than 50%
of the aggregate Outstanding Balance of all Receivables owing from such Obligor
are Defaulted Receivables;
(f) that, does not represent "billed but not yet shipped," "xxxx and
hold" or "progress-billed" goods or merchandise, unperformed services, consigned
goods or "sale or return" goods and does not arise from a transaction for which
any additional performance by the Originator thereof, or acceptance by or other
act of the Obligor thereunder, remains to be
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performed as a condition to any payments on such Receivable; PROVIDED, HOWEVER,
for purposes of this clause, "billed but not yet shipped" and "xxxx and hold"
shall not include Transferred Receivables arising from the sale of goods where
the underlying Contract clearly states (in the opinion of the Agent) that title
thereto has passed to the Obligor so long as (i) such goods have not been on the
applicable Originator's premises more than 45 days after the Billing Date
therefor, and (ii) the aggregate Outstanding Balance of all such Transferred
Receivables which are included as Eligible Receivables does not exceed 3% of the
aggregate Outstanding Balance of all Transferred Receivables (it being
understood that only the amount in excess of such 3% shall be ineligible);
(g) as to which the representations and warranties of Sections
4.01(x)(ii)-(iv) of the Sale Agreement are true and correct in all respects as
of the Transfer Date therefor and has been transferred to the Seller pursuant to
the Sale Agreement in a transaction constituting a true sale or other outright
conveyance and contribution;
(h) that is not the liability of an Obligor that has any claim of a
material nature against or affecting the Originator thereof or the property of
such Originator;
(i) that is a true and correct statement of a bona fide indebtedness
incurred in the amount of the Billed Amount of such Receivable for merchandise
or goods sold to or services rendered and accepted by the Obligor thereunder and
the Billing Date of which is not later than 10 days after merchandise or goods
are sold or service rendered;
(j) that was originated by the Originator in the ordinary course of
business in accordance with and satisfies all applicable requirements of the
Credit and Collection Policies, except to the extent that the failure to satisfy
such requirements could not reasonably be expected to have a material adverse
effect on the collectibility or enforceability of such Receivable;
(k) that represents the genuine, legal, valid and binding obligation
of the Obligor thereunder enforceable by the holder thereof in accordance with
its terms;
(l) that is entitled to be paid pursuant to the terms of the Contract
therefor, has not been paid in full or been compromised, adjusted, extended,
satisfied, subordinated, rescinded or modified, and is not subject to
compromise, adjustment, extension, satisfaction, subordination, rescission, or
modification by the Originator thereof (except for adjustments to the
Outstanding Balance thereof to reflect Dilution Factors made in accordance with
the Credit and Collection Policy);
(m) with respect to which the Originator thereof has submitted all
necessary documentation for payment to the Obligor thereunder and such
Originator has fulfilled all of its other obligations in respect thereof;
(n) the stated term of which, if any, is not greater than 30 days
after its Billing Date unless the Obligor is Swift Transportation, Yellow
Freight System, Xxxxxxxxx National and Wick, in which case, the stated term of
which may be 45 days after its Billing Date;
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(o) that was created in compliance with and otherwise does not
contravene any laws, rules or regulations applicable thereto (including laws,
rules and regulations relating to usury, consumer protection, truth in lending,
fair credit billing, fair credit reporting, equal credit opportunity, fair debt
collection practices and privacy) and with respect to which no party to the
Contract therefor is in violation of any such law, rule or regulation, in each
case except to the extent that such noncompliance or contravention could not
reasonably be expected to have a material adverse effect on the collectibility,
enforceability, value or payment terms of such Receivable;
(p) with respect to which no proceedings or investigations are pending
or threatened before any Governmental Authority (i) asserting the invalidity of
such Receivable or the Contract therefor, (ii) asserting the bankruptcy or
insolvency of the Obligor thereunder, (iii) seeking payment of such Receivable
or payment and performance of such Contract or (iv) seeking any determination or
ruling that might materially and adversely affect the validity or enforceability
of such Receivable or such Contract;
(q) with respect to which the Obligor thereunder is not: (i) bankrupt
or insolvent, (ii) unable to make payment of its obligations when due, (iii) a
debtor in a voluntary or involuntary bankruptcy proceeding, or (iv) the subject
of a comparable receivership or insolvency proceeding;
(r) that is an "account" (and is not evidenced by a promissory note or
other instrument and does not constitute chattel paper) within the meaning of
the UCC of the jurisdictions in which each of the Originators, the Parent and
the Seller are organized;
(s) that is payable solely and directly to an Originator and not to
any other Person (including any shipper of the merchandise or goods that gave
rise to such Receivable), except to the extent that payment thereof may be made
to the Collection Account or otherwise as directed pursuant to Article VI of the
Purchase Agreement;
(t) with respect to which all material consents, licenses, approvals
or authorizations of, or registrations with, any Governmental Authority required
to be obtained, effected or given in connection with the creation of such
Receivable or the Contract therefor have been duly obtained, effected or given
and are in full force and effect;
(u) that is created through the provision of merchandise, goods or
services by the Originator thereof in the ordinary course of its business in a
current transaction;
(v) that complies with such other criteria and requirements as the
Agent may from time to time, in its reasonable credit judgment, specify to the
Seller or the Originator thereof upon not less than three Business Days' prior
written notice;
(w) that is not the liability of an Obligor that is receiving or,
under the terms of the Credit and Collection Policies, should receive
merchandise, goods or services on a "cash on delivery" basis;
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(x) that does not constitute a rebilled amount arising from a
deduction taken by an Obligor with respect to a previously arising Receivable or
the balance owed on a Receivable with respect to which one or more partial
payments have been made;
(y) with respect to which no check, draft or other item of payment has
previously been received which was returned unpaid or otherwise dishonored;
(z) no portion of which constitutes sales tax or excise tax or
commission; and
(aa) that is not subject to any Lien, right, claim, security interest
or other interest of any other Person, other than Liens in favor of the
Purchaser.
(bb) that is paid to a Retail Deposit Account which after May 15, 2002
is subject to a Lockbox Account Agreement.
"ENVIRONMENTAL LAWS" shall mean all applicable federal, state, local and
foreign laws, statutes, ordinances, codes, rules, standards and regulations, now
or hereafter in effect, and in each case as amended or supplemented from time to
time, and any applicable judicial or administrative interpretation thereof,
including any applicable judicial or administrative order, consent decree, order
or judgment, imposing liability or standards of conduct for or relating to the
regulation and protection of human health, safety, the environment and natural
resources (including ambient air, surface water, groundwater, wetlands, land
surface or subsurface strata, wildlife, aquatic species and vegetation).
Environmental Laws include, without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.ss.ss.9601 et seq.);
the Hazardous Materials Transportation Authorization Act of 1994 (49
U.S.C.ss.ss.5101 et seq.); the Federal Insecticide, Fungicide, and Rodenticide
Act (7 U.S.C.ss.ss.136 et seq.); the Solid Waste Disposal Act (42
U.S.C.ss.ss.6901 et seq.); the Toxic Substance Control Act (15 U.S.C.ss.ss.2601
et seq.); the Clean Air Act (42 U.S.C.ss.ss.7401 et seq.); the Federal Water
Pollution Control Act (33 U.S.C.ss.ss.1251 et seq.); the Occupational Safety and
Health Act (29 U.S.C.ss.ss.651 et seq.); the Safe Drinking Water Act (42
U.S.C.ss.ss.300(f) et seq.); and the Resource Conservation and Recovery Act of
1976, 42 X.X.X.xx.xx. 6901 et seq., each as from time to time amended, and any
and all regulations promulgated thereunder, and all analogous state, local and
foreign counterparts or equivalents and any transfer of ownership notification
or approval statutes.
"ENVIRONMENTAL LIEN" shall mean a lien in favor of any Governmental
Authority for (a) any liability under Environmental Law, or (b) damages arising
from, or costs incurred by such Governmental Authority in response to a release,
spill, emission, leaking, pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration into the indoor or outdoor environment,
including the movement of Contaminants through or in the air, soil, surface
water or groundwater (a "RELEASE") or threatened Release of a Contaminant into
the environment.
"ENVIRONMENTAL PERMITS" shall mean all permits, licenses, authorizations,
certificates, approvals, registrations or other written documents required by
any Governmental Authority under any Environmental Laws.
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"EQUIPMENT" shall mean all "equipment," as such term is defined in the
Uniform Commercial Code, as amended, now owned or hereafter acquired by any
member of the Parent Group, wherever located and, in any event, including all
such member's machinery and equipment, including processing equipment,
conveyors, machine tools, data processing and computer equipment, including
embedded software and peripheral equipment and all engineering, processing and
manufacturing equipment, office machinery, furniture, materials handling
equipment, tools, attachments, accessories, automotive equipment, trailers,
trucks, forklifts, molds, dies, stamps, motor vehicles, rolling stock and other
equipment of every kind and nature, trade fixtures and fixtures not forming a
part of real property, together with all additions and accessions thereto,
replacements therefor, all parts therefor, all substitutes for any of the
foregoing, fuel therefor, and all manuals, drawings, instructions, warranties
and rights with respect thereto, and all products and proceeds thereof and
condemnation awards and insurance proceeds with respect thereto.
"EQUITY INTEREST" shall mean all shares, options, warrants, member
interests, general or limited partnership interests or other equivalents
(regardless of how designated) of or in a corporation, limited liability
company, partnership or equivalent entity whether voting or nonvoting, including
common stock, preferred stock or any other "equity security" (as such term is
defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the
Securities and Exchange Commission under the Securities Exchange Act).
"EQUITY HOLDERS" shall mean, with respect to any Person, each holder of
Equity Interests of such Person.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974 and
any regulations promulgated thereunder.
"ERISA AFFILIATE" shall mean, with respect to any Originator, any trade or
business (whether or not incorporated) that, together with such Originator, are
treated as a single employer within the meaning of Sections 414(b), (c), (m) or
(o) of the Code.
"ERISA EVENT" shall mean, with respect to any Originator or any ERISA
Affiliate, (a) any event described in Section 4043(c) of ERISA with respect to a
Title IV Plan; (b) the withdrawal of any Originator or ERISA Affiliate from a
Title IV Plan subject to Section 4063 of ERISA during a plan year in which it
was a "substantial employer," as defined in Section 4001(a)(2) of ERISA; (c) the
complete or partial withdrawal of any Originator or any ERISA Affiliate from any
Multiemployer Plan; (d) the filing of a notice of intent to terminate a Title IV
Plan or the treatment of a plan amendment as a termination under Section 4041 of
ERISA; (e) the institution of proceedings to terminate a Title IV Plan or
Multiemployer Plan by the PBGC; (f) the failure by any Originator or ERISA
Affiliate to make when due required contributions to a Multiemployer Plan or
Title IV Plan unless such failure is cured within 30 days; (g) any other event
or condition that might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Title IV Plan or Multiemployer Plan or for the imposition of
liability under Section 4069 or 4212(c) of ERISA; (h) the termination of a
Multiemployer Plan under Section
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4041A of ERISA or the reorganization or insolvency of a Multiemployer Plan under
Section 4241 of ERISA; (i) the loss of a Qualified Plan's qualification or tax
exempt status; or (j) the termination of a Plan described in Section 4064 of
ERISA.
"ESOP" shall mean a Plan that is intended to satisfy the requirements of
Section 4975(e)(7) of the Code.
"EVENT OF SERVICER TERMINATION" shall have the meaning assigned to it in
Section 9.02 of the Purchase Agreement.
"EXTENDED TERM RESERVE" shall mean a reserve established, dollar for
dollar, against the amount by which (a) the aggregate Outstanding Balance of
Transferred Receivables having stated terms of 45 days after the Billing Date of
one or more of Swift Transportation, Yellow Freight System, Xxxxxxxxx National
and Wick as Obligors thereunder exceeds (b) 40% of the aggregate Outstanding
Balance of all Transferred Receivables.
"FACILITY TERMINATION DATE" shall mean the earliest of (a) the date so
designated pursuant to Section 9.01 of the Purchase Agreement, (b) the Final
Purchase Date, and (c) the date of termination of the Maximum Purchase Limit
specified in a notice from Seller to the Purchaser delivered pursuant to and in
accordance with Section 2.02(b) of the Purchase Agreement.
"FAIR LABOR STANDARDS ACT" shall mean the provisions of the Fair Labor
Standards Act, 29 U.S.C. xx.xx. 201 et seq.
"FEDERAL FUNDS RATE" shall mean, for any day, a floating rate equal to the
weighted average of the rates on overnight federal funds transactions among
members of the Federal Reserve System, as determined by the Agent.
"FEDERAL RESERVE BOARD" shall mean the Board of Governors of the Federal
Reserve System.
"FEE LETTER" shall mean that certain letter agreement dated April 11, 2002,
among the Seller, the Agent and GECC.
"FINAL PURCHASE DATE" shall mean April 15, 2004.
"FINANCE CONTRACT" shall mean any chattel paper originated by the Parent or
any of its Subsidiaries pursuant to a bona fide sale in the ordinary course of
business with a customer of any Subsidiary.
"FINANCIAL STATEMENTS" shall mean, consolidated and consolidating income
statements, statements of cash flows and balance sheets of the Parent delivered
in accordance with Section of the Sale Agreement and of the Seller delivered in
accordance with Section 5.02 of the Purchase Agreement.
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"FLEET LEASE TRANSACTION" shall mean (i) the lease transaction among Wabash
Statutory Trust - 2000 as lessor and Apex Trailer Leasing & Rentals, L.P. as
lessee under that certain Amended and Restated Equipment Lease, dated as of
March 30, 2001, as amended, restated, supplemented or otherwise modified from
time to time and all other investments and documents related thereto and (ii)
the lease transaction among Fleet Capital Corporation (as successor to
BancBoston Leasing, Inc.) as lessor and Apex Trailer Leasing & Rentals, L.P. as
lessee under that certain Master Lease Agreement dated as of September 5, 1997,
as amended, restated, supplemented or otherwise modified from time to time and
all other instruments and documents related thereto.
"FOREIGN SUBSIDIARY" shall mean a Subsidiary which is not a Domestic
Subsidiary.
"FRUEHAUF PREFERRED STOCK" shall mean the Series A 6% Cumulative
Convertible Exchangeable Preferred Stock of the Parent.
"FUNDED INDEBTEDNESS" shall mean, with respect to any Person, without
duplication, all Indebtedness for borrowed money evidenced by notes, bonds,
debentures, or similar evidences of Indebtedness and that by its terms matures
more than one year from, or is directly or indirectly renewable or extendible at
such Person's option under a revolving credit or similar agreement obligating
the lender or lenders to extend credit over a period of more than one year from
the date of creation thereof, and specifically including Capitalized Lease
Obligations, current maturities of long-term debt, revolving credit and
short-term debt extendible beyond one year at the option of the debtor.
"GAAP" shall mean generally accepted accounting principles in the United
States of America as in effect on the Closing Date.
"GECC" shall mean General Electric Capital Corporation, a Delaware
corporation, and its successors and assigns.
"GENERAL TRIAL BALANCE" shall mean, with respect to any Originator and as
of any date of determination, such Originator's accounts receivable trial
balance (whether in the form of a computer printout, magnetic tape or diskette)
as of such date, listing Obligors and the Receivables owing by such Obligors as
of such date together with the aged Outstanding Balances of such Receivables, in
form and substance satisfactory to the Seller and the Purchasers.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any state or
other political subdivision thereof, and any agency, department or other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"GUARANTEED INDEBTEDNESS" shall mean, as to any Person, any obligation of
such Person guaranteeing any indebtedness, lease, dividend, or other obligation
("primary obligation") of any other Person (the "primary obligor") in any
manner, including any obligation or
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arrangement of such Person to (a) purchase or repurchase any such primary
obligation, (b) advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet condition of the primary obligor, (c) purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation, or (d) indemnify the owner of such primary obligation
against loss in respect thereof. The amount of any Guaranteed Indebtedness at
any time shall be deemed to be the amount equal to the lesser at such time of
(x) the stated or determinable amount of the primary obligation in respect of
which such Guaranteed Indebtedness is incurred and (y) the maximum amount for
which such Person may be liable pursuant to the terms of the instrument
embodying such Guaranteed Indebtedness; or, if not stated or determinable, the
maximum reasonably anticipated liability (assuming full performance) in respect
thereof.
"GUARANTEED OBLIGATIONS" shall mean, collectively: (a) all covenants,
agreements, terms, conditions and indemnities to be performed and observed by
either or both of the Originators under and pursuant to the Sale Agreement and
each other document executed and delivered by either or both of them pursuant to
the Sale Agreement, including, without limitation, the due and punctual payment
of all sums which are or may become due and owing by either of the Originators
under the Sale Agreement, whether for fees, expenses (including counsel fees),
indemnified amounts or otherwise, whether upon any termination or for any other
reason and (b) all obligations of Wabash Financing, LLC, as Servicer under the
Purchase Agreement, or which arise pursuant to the Purchase Agreement as a
result of its termination as Servicer.
"HEDGING OBLIGATIONS" of a Person shall mean any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, commodity prices,
exchange rates or forward rates applicable to such party's assets, liabilities
or exchange transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
"INCIPIENT SERVICER TERMINATION EVENT" shall mean any event that, with the
passage of time or notice or both, would, unless cured or waived, become an
Event of Servicer Termination.
"INCIPIENT TERMINATION EVENT" shall mean any event that, with the passage
of time or notice or both, would, unless cured or waived, become a Termination
Event.
"INDEBTEDNESS" of any Person shall mean, without duplication,
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(a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services payment for which is deferred 90
days or more, but excluding obligations to trade creditors incurred in the
ordinary course of business that are not overdue by more than 90 days unless
being contested in good faith,
(b) all reimbursement and other obligations with respect to letters of
credit, bankers' acceptances and surety bonds, whether or not matured,
(c) all indebtedness created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property),
(d) all Capitalized Lease Obligations,
(e) all indebtedness referred to in clauses (a) through (d) above
secured by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property or other
assets (including accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
indebtedness,
(f) all Off-Balance Sheet Liabilities of such Person,
(g) the aggregate Capital Investment, and
(h) all Contingent Obligation of such Person with respect to
liabilities of a type described in any of clauses (a) through (g) hereof.
Indebtedness of any Person shall include all obligations of such Person of the
character described in clauses (a) through (h) to the extent such Person remains
legally liable in respect thereof notwithstanding that any such obligation is
deemed to be extinguished under Agreement Accounting Principles. In no event
shall Indebtedness include Unfunded Liabilities of any Plan of the Parent and
its Subsidiaries, which amount, as of December 31, 2001, was zero.
"INDEMNIFIED AMOUNTS" shall mean, with respect to any Person, any and all
suits, actions, proceedings, claims, damages, losses, liabilities and expenses
(including attorneys' fees and disbursements and other costs of investigation or
defense, including those incurred upon any appeal).
"INDEMNIFIED PERSON" shall have the meaning assigned to it in Section
12.01(a) of the Purchase Agreement.
"INDEMNIFIED TAXES" shall have the meaning assigned to it in Section
2.08(b) of the Purchase Agreement.
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"INDEPENDENT MEMBER" shall mean WNC Receivables Management Corp., a
Delaware corporation.
"INDEX RATE" shall mean, for any day, a floating rate equal to the higher
of (i) the rate publicly quoted from time to time by The Wall Street Journal as
the "base rate on corporate loans at large U.S. money center commercial banks"
(or, if The Wall Street Journal ceases quoting a base rate of the type
described, the highest per annum rate of interest published by the Federal
Reserve Board in Federal Reserve statistical release H.15 (519) entitled
"Selected Interest Rates" as the Bank prime loan rate or its equivalent), and
(ii) the Federal Funds Rate plus fifty (50) basis points per annum. Each change
in any interest rate provided for in the Purchase Agreement based upon the Index
Rate shall take effect at the time of such change in the Index Rate.
"INTENDED CHARACTERIZATION" shall mean, for income tax purposes, the
characterization of the acquisition by the Purchasers of Purchaser Interests
under the Purchase Agreement as a loan or loans by the Purchasers to the Seller
secured by the Receivables and the Collections.
"INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT" shall mean that certain
Intercreditor and Collateral Agency Agreement dated as of the Closing Date by
and among the Lenders, the Noteholders, the Collateral Agent and the Credit
Facility Agent.
"INTERCREDITOR AGREEMENT" shall mean that certain Intercreditor Agreement
dated as of the Closing Date, among the Agent, the Collateral Agent, Originators
and Seller.
"INVESTMENT" shall mean, with respect to any Person, (i) any purchase or
other acquisition by that Person of any Indebtedness, Equity Interest or other
securities, or of a beneficial interest in any Indebtedness, Equity Interest or
other securities, issued by any other Person, (ii) any purchase by that Person
of all or substantially all of the assets of a business conducted by another
Person, and (iii) any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts
receivable, advances to employees and similar items made or incurred in the
ordinary course of business) or capital contribution by that Person to any other
Person, including all Indebtedness to such Person arising from a sale of
property by such Person other than in the ordinary course of its business.
"INVESTMENT BASE" shall mean, as of any date of determination, the amount
equal to the Outstanding Balance of Eligible Receivables minus the Reserves with
respect thereto, in each case as disclosed in the most recently submitted
Investment Base Certificate or as otherwise determined by the Purchaser or the
Agent based on Seller Collateral information available to any of them, including
any information obtained from any audit or from any other reports with respect
to the Seller Collateral, which determination shall be final, binding and
conclusive on all parties to the Purchase Agreement (absent manifest error).
"INVESTMENT BASE CERTIFICATE" shall mean a Daily Investment Base
Certificate or a Weekly Investment Base Certificate, as the case may be.
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"INVESTMENT COMPANY ACT" shall mean the provisions of the Investment
Company Act of 1940, 15 X.X.X.xx.xx. 80a et seq., and any regulations
promulgated thereunder.
"INVESTMENT REPORTS" shall mean, collectively, the Investment Base
Certificates, the Monthly Reports and each of the reports with respect to the
Transferred Receivables and the Seller Collateral referred to in Annex 7.08 of
the Purchase Agreement.
"IRS" shall mean the Internal Revenue Service.
"LENDERS" shall mean the lenders from time to time party to the Credit
Agreement.
"LIBOR BUSINESS DAY" shall mean a Business Day on which banks in the City
of London are generally open for interbank or foreign exchange transactions.
"LIBOR PERIOD" shall mean, with respect to any LIBOR Tranche, each period
commencing on a LIBOR Business Day selected by Seller pursuant to the Purchase
Agreement and ending one, two or three months thereafter, as selected by
Seller's irrevocable notice to Agent as set forth in the Purchase Agreement;
provided that the foregoing provision relating to LIBOR Periods is subject to
the following:
(a) if any LIBOR Period would otherwise end on a day that is not a
LIBOR Business Day, such LIBOR Period shall be extended to the next succeeding
LIBOR Business Day unless the result of such extension would be to carry such
LIBOR Period into another calendar month in which event such LIBOR Period shall
end on the immediately preceding LIBOR Business Day;
(b) any LIBOR Period that would otherwise extend beyond the Facility
Termination Date shall end 2 LIBOR Business Days prior to such date;
(c) any LIBOR Period that begins on the last LIBOR Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such LIBOR Period) shall end on the last
LIBOR Business Day of a calendar month;
(d) Seller shall select LIBOR Periods so as not to require a payment
or prepayment of any LIBOR Tranche during a LIBOR Period for such LIBOR Tranche;
and
(e) Seller shall select LIBOR Periods so that there shall be no more
than 5 separate LIBOR Tranches in existence at any one time.
"LIBOR RATE" shall mean for each LIBOR Period, a rate of interest
determined by the Agent equal to:
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(a) the offered rate for deposits in United States Dollars for the
applicable LIBOR Period that appears on Telerate Page 3750 as of 11:00 a.m.
(London time), on the second full LIBOR Business Day next preceding the first
day of such LIBOR Period (unless such date is not a Business Day, in which event
the next succeeding Business Day will be used); divided by
(b) a number equal to 1.0 minus the aggregate (but without
duplication) of the rates (expressed as a decimal fraction) of reserve
requirements in effect on the day that is 2 LIBOR Business Days prior to the
beginning of such LIBOR Period (including basic, supplemental, marginal and
emergency reserves under any regulations of the Federal Reserve Board or other
Governmental Authority having jurisdiction with respect thereto, as now and from
time to time in effect) for Eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Federal Reserve Board that are
required to be maintained by a member bank of the Federal Reserve System.
If such interest rates shall cease to be available from Telerate News
Service, the LIBOR Rate shall be determined from such financial reporting
service or other information as shall be mutually acceptable to Agent and
Seller.
"LIBOR TRANCHE" shall mean each portion of the Capital Investment (if any)
that is accruing Daily Yield at a LIBOR Rate for a LIBOR Period.
"LIEN" shall mean any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any lease
or title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of, or agreement to
give, any financing statement perfecting a security interest under the UCC or
comparable law of any jurisdiction).
"LITIGATION" shall mean, with respect to any Person, any action, claim,
lawsuit, demand, investigation or proceeding pending or threatened against such
Person before any court, board, commission, agency or instrumentality of any
federal, state, local or foreign government or of any agency or subdivision
thereof or before any arbitrator or panel of arbitrators.
"LOAN DOCUMENT" shall mean the Intercreditor and Collateral Agency
Agreement, the Note Agreements, the Senior Notes, the Credit Agreement, the
NatCity Lease and all notes, security agreements, guaranties, pledge agreements,
mortgages and related collateral documents executed pursuant to any of the
foregoing.
"LOCKBOX" shall have the meaning assigned to it in Section 6.01(a)(ii) of
the Purchase Agreement.
"LOCKBOX ACCOUNT" shall mean each lockbox account or blocked account
(including blocked accounts consisting of deposit accounts and concentration
accounts) listed on
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Scheule 4.01(r) to the Purchase Agreement as amended from time to time
established in the name of the Seller and held at a Lockbox Account Bank,
together with any other segregated deposit account established by the Seller for
the deposit of Collections pursuant to and in accordance with Section 6.01(a) of
the Purchase Agreement.
"LOCKBOX ACCOUNT AGREEMENT" shall mean any agreement among one or both
Originators, the Seller, the Agent, and a Lockbox Account Bank with respect to a
Lockbox and/or Lockbox Account that provides, among other things, that (a) all
items of payment deposited in such Lockbox and Lockbox Account are held by such
Lockbox Account Bank as custodian for GECC, as Agent, (b) the Lockbox Account
Bank has no rights of setoff or recoupment or any other claim against such
Lockbox Account other than for payment of its service fees and other charges
directly related to the administration of such Account and for returned checks
or other items of payment and (c) such Lockbox Account Bank agrees to forward
all Collections received in such Lockbox Account to the Collection Account
within one Business Day of receipt of available funds, and is otherwise in form
and substance acceptable to the Agent.
"LOCKBOX ACCOUNT BANK" shall mean any bank or other financial institution
at which one or more Lockbox Accounts are maintained.
"MARGIN STOCK" shall have the meaning set forth in Regulation U promulgated
by the Board of Governors of the Federal Reserve System, as from time to time in
effect.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on (a) the
business, assets, liabilities, operations, prospects or financial or other
condition of (i) any Originator or the Originators considered as a whole, (ii)
the Seller or (iii) the Servicer and its Subsidiaries considered as a whole, (b)
the ability of any Originator, the Seller or the Servicer to perform any of its
obligations under the Related Documents in accordance with the terms thereof,
(c) the validity or enforceability of any Related Document or the rights and
remedies of the Seller, the Purchaser or the Agent under any Related Document,
(d) the federal income tax attributes of the sale, contribution or pledge of the
Transferred Receivables pursuant to any Related Document or (e) the Transferred
Receivables, the Contracts therefor, the Originator Collateral, the Seller
Collateral or the ownership interests or Liens of the Seller or the Purchaser or
the Agent thereon or the priority of such interests or Liens.
"MATURITY DATE" shall mean, with respect to any Receivable, the due date
for payment therefor specified in the Contract therefor, or, if no date is so
specified, 30 days from the Billing Date.
"MAXIMUM PURCHASE LIMIT" shall mean (i) $110,000,000 as such amount may be
reduced in accordance with Section 2.02(a) of the Purchase Agreement, minus (ii)
Availability Block.
"MONTHLY REPORT" shall mean a report in substantially the form of Exhibit
2.03(a)(iii) to the Purchase Agreement.
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"MULTIEMPLOYER PLAN" shall mean a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA with respect to which any Originator or ERISA
Affiliate is making, is obligated to make, or has made or been obligated to
make, contributions on behalf of participants who are or were employed by any of
them.
"NATCITY LEASE" shall mean that certain Master Equipment Lease Agreement
No. 07008, dated as of December 30, 1996, between Apex Trailer Leasing &
Rentals, L.P., a Delaware limited partnership (a successor to Wabash National
Finance Corporation, an Indiana corporation) and National City Leasing
Corporation.
"NATCITY LEASE OBLIGATION" shall have the meaning assigned to it in the
Intercreditor and Collateral Agency Agreement.
"NATIONAL CITY LEASE TRANSACTION" shall mean the lease transaction among
National City Leasing Corporation as lessor and Apex Trailer Leasing & Rentals,
L.P. (as successor to Wabash National Finance Corporation) as lessee under that
certain Master Equipment Lease Agreement No. 07008 as of December 30, 1996, as
amended, restated, supplemented or otherwise modified from time to time.
"NET WORTH PERCENTAGE" shall mean a fraction (expressed as a percentage)
(a) the numerator of which equals the excess of assets over liabilities, in each
case determined in accordance with GAAP consistently applied and (b) the
denominator of which equals the Outstanding Balance of Transferred Receivables.
"NOTE AGREEMENTS" shall mean, in the case of the holders of the Parent's
Series A Senior Notes, those certain separate and several Amended and Restated
Note Purchase Agreements, each dated as of the Closing Date, between the Parent
and such holders, in the case of the holders of the Parent's Series C through H
Senior Notes, those certain separate and several Amended and Restated Note
Purchase Agreement, dated as of the Closing Date, between the Parent and such
holders, and in the case of the holders of the Parent's Series I Senior Notes,
that certain Amended and Restated Note Purchase Agreement, dated as of the
Closing Date, between the Parent and such holders, in each case as amended from
time to time.
"NOTEHOLDER" shall mean each holder of a Senior Note pursuant to a Note
Agreement, and its successors and assigns.
"OBLIGATIONS" shall mean all loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Parent to the Credit Facility
Agent, any Lender, any Affiliate of any of the foregoing or any Indemnitee (as
such term is defined in the Credit Agreement), of any kind or nature, present or
future, arising under the Credit Agreement, the Senior Notes, or any other Loan
Document, whether or not evidenced by any note, guaranty or other instrument,
whether or not for the payment of money, whether arising by reason of an
extension of credit, loan, guaranty, indemnification, or in any other manner,
whether direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and however
acquired. The term includes, without limitation, all interest,
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charges, expenses, fees, attorneys' fees and disbursements, paralegals' fees (in
each case whether or not allowed), and any other sum chargeable to the Parent
under the Credit Agreement or any other Loan Document.
"OBLIGOR" shall mean, with respect to any Receivable, the Person primarily
obligated to make payments in respect thereof.
"OFF-BALANCE SHEET LIABILITIES" of a Person shall mean (a) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to accounts or notes receivable sold by such Person or any of its Subsidiaries,
(b) any liability of such Person or any of its Subsidiaries under any sale and
leaseback transactions which do not create a liability on the consolidated
balance sheet of such Person, (c) any liability of such person or any of its
Subsidiaries under any so-called "synthetic" lease transaction, or (d) any
obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the consolidated balance sheets of such Person and its
Subsidiaries.
"OFFICER'S CERTIFICATE" shall mean, with respect to any Person, a
certificate signed by an Authorized Officer of such Person.
"ORGANIC DOCUMENT" shall mean, relative to any Person, its certificate of
incorporation, its by-laws, its partnership agreement, its memorandum and
articles of association, its certificate of formation or articles of
organization and limited liability company agreement and/or operating agreement,
share designations or similar organization documents and all shareholder
agreements, voting trusts and similar arrangements applicable to any of its
authorized Equity Interest.
"ORIGINATOR" shall mean each of NOAMTC, Inc., a Delaware corporation, and
Wabash National, L.P., a Delaware limited partnership, and its successors.
"ORIGINATOR COLLATERAL" shall have the meaning assigned to it in Section
7.01 of the Sale Agreement.
"OUTSTANDING BALANCE" shall mean, with respect to any Receivable and as of
any date of determination, the amount (which amount shall not be less than zero)
equal to (a) the Billed Amount thereof, minus (b) all Collections received from
the Obligor thereunder, minus (c) all discounts to or any other modifications
that reduce such Billed Amount; provided, that if the Agent or the Servicer
makes a determination that all payments by such Obligor with respect to such
Billed Amount have been made, the Outstanding Balance shall be zero.
"PARENT" shall mean Wabash National Corporation, a Delaware corporation.
"PARENT GROUP" shall mean the Parent and each of its Affiliates (other than
the Seller).
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"PBGC" shall mean the Pension Benefit Guaranty Corporation.
"PENSION PLAN" shall mean a Plan described in Section 3(2) of ERISA.
"PER ANNUM DAILY MARGIN" shall mean:
(a) at all times prior to the date on which the Parent files its 10-K
for the year ended December 31, 2002:
(i) with respect to Capital Investment (A) at the LIBOR Rate,
3.50%, and (B) at the Index Rate, 2.00%, and
(ii) with respect to Unused Facility Fees. 0.50%; and
(b) at all times from and after the date on which the Parent files its
10-K for the year ended December 31, 2002, the applicable per annum percentage
set forth opposite the then applicable range of the Aggregate Interest Coverage
Ratio:
--------------------------------------------------------------------------------
PER ANNUM DAILY MARGIN
-------------------------------------------------------
AGGREGATE INTEREST INVESTMENT AT INVESTMENT AT UNUSED
COVERAGE RATIO THE LIBOR RATE THE INDEX RATE FACILITY FEE
--------------------------------------------------------------------------------
> 2.0 : 1.0 3.25% 1.75% 0.375%
--------------------------------------------------------------------------------
< OR = 2.0 : 1.0 BUT
> 1.5 : 1.0 3.50% 2.00% 0.50%
--------------------------------------------------------------------------------
< OR = 1.5 : 1.0 3.75% 2.25% 0.625%
--------------------------------------------------------------------------------
"PERFORMANCE GUARANTOR" shall mean the Parent in its capacity as guarantor
under the Performance Undertaking.
"PERFORMANCE UNDERTAKING" shall mean the provisions of Article VIII of the
Sale Agreement.
"PERMITTED ACQUISITION" shall mean any Acquisition made by the Parent or
any of its Subsidiaries provided that: (a) as of the date of such Acquisition,
no Default (as defined in the Credit Agreement) or Unmatured Default shall have
occurred and be continuing or would result from such Acquisition or from the
incurrence of any Indebtedness in connection with such Acquisition; (b) prior to
the date of such Acquisition, such Acquisition shall have been approved
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by the board of directors and, if applicable, the shareholders of the Person
whose stock or assets are being acquired in connection with such Acquisition and
no claim or challenge has been asserted or threatened by any shareholder or
director of such Person which could reasonably be expected to have a material
adverse effect on such Acquisition or a Material Adverse Effect (as defined in
the Credit Agreement); (c) as of the date of any such Acquisition, all approvals
required in connection with such Acquisition shall have been obtained; (d) the
Acquisition Purchase Price paid or payable to the Parent and its Subsidiaries
for all Permitted Acquisitions during any fiscal year of the Parent shall not
exceed $2,500,000. Anything in the foregoing to the contrary, in no event shall
Permitted Acquisition include any Acquisition by Seller or by Independent
Member.
"PERMITTED EXISTING CONTINGENT OBLIGATIONS" shall have the meaning assigned
to it in Schedule 2 of this Annex X to the Sale Agreement and the Purchase
Agreement.
"PERMITTED EXISTING INDEBTEDNESS" shall have the meaning assigned to it in
Schedule 2 of this Annex X to the Sale Agreement and the Purchase Agreement.
"PERMITTED EXISTING INVESTMENTS" shall have the meaning assigned to it in
Schedule 2 of this Annex X to the Sale Agreement and the Purchase Agreement.
"PERMITTED EXISTING LIENS" shall have the meaning assigned to it in
Schedule 2 of this Annex X to the Sale Agreement and the Purchase Agreement.
"PERMITTED INVESTMENTS" shall mean any of the following:
(a) obligations of, or guaranteed as to the full and timely payment of
principal and interest by, the federal government of the United States or
obligations of any agency or instrumentality thereof if such obligations are
backed by the full faith and credit of the federal government of the United
States, in each case with maturities of not more than 90 days from the date
acquired;
(b) repurchase agreements on obligations of the type specified in
clause (a) of this definition;
(c) federal funds, certificates of deposit, time deposits and bankers'
acceptances of any depository institution or trust company incorporated under
the federal laws of the United States or any state, in each case with original
maturities of not more than 90 days or, in the case of bankers' acceptances,
original maturities of not more than 365 days;
(d) commercial paper of any corporation incorporated under the laws of
the United States of America or any state thereof with original maturities of
not more than 30 days;
(e) securities of money market funds.
"PERMITTED ORIGINATOR ENCUMBRANCES" shall mean the following encumbrances:
(a) Liens for taxes or assessments or other governmental charges not yet due and
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payable (other than with respect to environmental matters); (b) pledges or
deposits securing obligations under workmen's compensation, unemployment
insurance, social security or public liability laws or similar legislation
(excluding Liens under ERISA); (c) pledges or deposits securing bids, tenders,
contracts (other than contracts for the payment of money) or leases to which any
Originator, the Seller or the Servicer is a party as lessee made in the ordinary
course of business; (d) deposits securing statutory obligations of any
Originator, the Seller or the Servicer; (e) inchoate and unperfected workers',
mechanics', suppliers' or similar Liens arising in the ordinary course of
business; (f) carriers', warehousemen's or other similar possessory Liens
arising in the ordinary course of business and securing liabilities in an
outstanding aggregate amount not in excess of $500,000 at any one time; (g)
deposits securing, or in lieu of, surety, appeal or customs bonds in proceedings
to which any Originator, the Seller or the Servicer is a party; (h) any
attachment or judgment Lien not constituting a Termination Event under Section
9.01(f) of the Purchase Agreement; (i) Liens existing on the Closing Date and
listed on Schedule 4.04(b) of the Sale Agreement; (j) Liens expressly permitted
under Section 4.04(b) of the Sale Agreement (except that such Liens shall not be
deemed "Permitted Originator Encumbrances" until such Liens have satisfied the
criteria set forth in such section), (l) Liens securing Indebtedness which is
incurred to extend, refinance, renew, replace, defease or refund Indebtedness
which has been secured by a Lien permitted under the Sale Agreement and is
permitted to be extended, refinanced, renewed, replaced, defeased or refunded
under the Sale Agreement but only to the extent that such Lien is limited to the
same collateral as that covered by the prior Lien, (m) Liens securing the
obligations arising under the Credit Facility and Senior Notes so long as such
Liens do not encumber Originator Collateral or Seller Collateral, and (n)
presently existing or hereinafter created Liens in favor of the Buyer, the
Seller, the Purchaser or the Agent.
"PERMITTED SELLER ENCUMBRANCES" shall mean the following encumbrances: (a)
Liens for taxes or assessments or other governmental charges not yet due and
payable (other than with respect to environmental matters); (b) deposits
securing statutory obligations of the Seller; and (c) presently existing or
hereinafter created Liens in favor of the Purchaser or the Agent.
"PERMITTED INDEPENDENT MEMBER ENCUMBRANCES" shall mean the following
encumbrances: (a) Liens for taxes or assessments or other governmental charges
not yet due and payable (other than with respect to environmental matters); (b)
deposits securing statutory obligations of the Independent Member; and (c)
presently existing or hereinafter created Liens in favor of the Collateral Agent
on the Independent Member's Equity Interest in the Seller.
"PERSON" shall mean any individual, sole proprietorship, partnership, joint
venture, unincorporated organization, trust, association, corporation (including
a business trust), limited liability company, institution, public benefit
corporation, joint stock company, Governmental Authority or any other entity of
whatever nature.
"PIK NOTES" shall mean those certain promissory notes of the Parent payable
to the order of each Lender evidencing the aggregate deferral fees payable by
the Parent to such Lender.
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"PLAN" shall mean, at any time, an "employee benefit plan," as defined in
Section 3(3) of ERISA, that any Originator or ERISA Affiliate maintains,
contributes to or has an obligation to contribute to on behalf of participants
who are or were employed by any Originator or ERISA Affiliate.
"PROJECTIONS" shall mean Parent Group's forecasted consolidated and
consolidating: (a) balance sheets; (b) income statements; (c) cash flow
statements; and (d) capitalization statements, all prepared on a
Subsidiary-by-Subsidiary or division-by-division basis, if applicable, and
otherwise consistent with the historical Financial Statements of Parent,
together with appropriate supporting details and a statement of underlying
assumptions.
"PROPERTY" of a Person shall mean any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"PRO RATA SHARE" shall mean, with respect to each Purchaser, the ratio
which its Commitment bears to the aggregate of all Purchaser's Commitments (or,
if no Commitments are outstanding, the ratio which its Capital Investment bears
to the aggregate Capital Investment).
"PURCHASE" shall have the meaning assigned to it in Section 2.01 of the
Purchase Agreement.
"PURCHASE AGREEMENT" shall mean that certain Receivables Purchase and
Servicing Agreement dated as of April 11, 2002, among the Seller, the
Independent Member, the Purchasers, the Servicer and the Agent.
"PURCHASE ASSIGNMENT" shall mean that certain Purchase Assignment dated as
of the Closing Date by and between the Seller and the Applicable Purchaser in
the form attached as Exhibit 2.04(a) to the Purchase Agreement.
"PURCHASE DATE" shall mean each day on which a Purchase is made.
"PURCHASE DISCOUNT RATE" shall mean, as of any date of determination, a
rate equal to the lesser of (a) the Dynamic Purchase Discount Rate and (b) the
Purchase Discount Rate Cap.
"PURCHASE DISCOUNT RATE CAP" shall mean a rate equal to eighty-five percent
(85%); provided that the Purchase Discount Rate Cap may be changed at any time
as determined by the Agent in its reasonable credit judgment exercised in good
faith.
"PURCHASE EXCESS" shall mean, as of any date of determination, the extent
to which the Capital Investment exceeds the Availability, in each case as
disclosed in the most recently submitted Investment Base Certificate or as
otherwise determined by the Purchaser or the Agent based on Seller Collateral
information available to any of them, including any information obtained from
any audit or from any other reports with respect to the Seller
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Collateral, which determination shall be final, binding and conclusive on all
parties to the Purchase Agreement (absent manifest error).
"PURCHASE REQUEST" shall have the meaning assigned to it in Section 2.03(b)
of the Purchase Agreement.
"PURCHASER" shall mean GECC, its successors and assigns.
"PURCHASER INTEREST" shall mean a 100% ownership interest of the Purchaser
in the Transferred Receivables which are purchased under the Purchase Agreement.
"QUALIFIED PLAN" shall mean a Pension Plan that is intended to be
tax-qualified under Section 401(a) of the Code.
"RATIOS" shall mean, collectively, the Dilution Ratio and the Dilution
Reserve Ratio.
"RECEIVABLE" shall mean, with respect to any Obligor:
(a) indebtedness of such Obligor (whether constituting an account,
general intangible or otherwise) arising from the sale of merchandise, goods or
services by an Originator to such Obligor, including the right to payment of any
interest or finance charges and other obligations of such Obligor with respect
thereto, but specifically excluding any chattel paper arising from the lease of
any such merchandise or goods or the financing of the purchase price of, any
such merchandise, goods or services;
(b) all Liens and property subject thereto from time to time securing
or purporting to secure any such indebtedness of such Obligor (including,
without limitation, all Returned Goods);
(c) all guaranties, indemnities and warranties, insurance policies,
financing statements and other agreements or arrangements of whatever character
from time to time supporting or securing payment of any such indebtedness;
(d) all Collections with respect to any of the foregoing;
(e) all Records with respect to any of the foregoing; and
(f) all proceeds with respect to the foregoing.
"RECORDS" shall mean all Contracts and other documents, books, records and
other information (including computer programs, tapes, disks, data processing
software and related property and rights) prepared and maintained by any
Originator, the Servicer, any Sub-Servicer or the Seller with respect to the
Receivables and the Obligors thereunder, the Originator Collateral and the
Seller Collateral.
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"REGULATORY CHANGE" shall mean any change after the Closing Date in any
federal, state or foreign law or regulation (including Regulation D of the
Federal Reserve Board) or the adoption or making after such date of any
interpretation, directive or request under any federal, state or foreign law or
regulation (whether or not having the force of law) by any Governmental
Authority charged with the interpretation or administration thereof that, in
each case, is applicable to any Affected Party.
"REJECTED AMOUNT" shall have the meaning assigned to it in Section 4.05 of
the Sale Agreement.
"RELATED DOCUMENTS" shall mean each Lockbox Account Agreement, the Fee
Letter, the Intercreditor Agreement, the Sale Agreement (including, without
limitation, the Performance Undertaking contained therein), the Purchase
Agreement, the Purchase Assignment and all other agreements, instruments,
documents and certificates identified in the Schedule of Documents and including
all other pledges, powers of attorney, consents, assignments, contracts,
notices, and all other written matter whether heretofore, now or hereafter
executed by or on behalf of any Person, or any employee of any Person, and
delivered in connection with either Sale Agreement, the Purchase Agreement or
the transactions contemplated thereby. Any reference in either Sale Agreement,
the Purchase Agreement or any other Related Document to a Related Document shall
include all Appendices thereto, and all amendments, restatements, supplements or
other modifications thereto, and shall refer to such Related Document as the
same may be in effect at any and all times such reference becomes operative.
"REPAYMENT NOTICE" shall have the meaning assigned to it in Section 2.03(c)
of the Purchase Agreement.
"RELATED NOTES" shall mean the PIK Notes under and as defined in the Note
Agreements.
"REQUIRED PURCHASERS" shall mean those Purchasers whose Commitments
represent at least 66-2/3% of the aggregate of all Commitments (or if no
Commitments are outstanding, those Purchasers whose Invested Capital represents
66-2/3% of the aggregate Invested Capital of all Purchasers).
"RESERVES" shall mean the sum of (a) the aggregate Concentration Discount
Amount for all Obligors of Transferred Receivables plus (b) the Extended Term
Reserve plus (c) in the event Agent does not receive one or more of landlord
waivers as required in accordance with Section 5.06(b) of the Purchase
Agreement, Agent shall establish reserves in such amounts as Agent shall
determine in its sole discretion until such landlord waivers are received, and
plus (d) such other reserves as the Agent may establish from time to time in its
reasonable credit judgment.
"RETAIL DEPOSIT ACCOUNTS" shall mean each of the following deposit
accounts:
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Bank Name Account Number
--------- --------------
(a) Bank of America 144614518
(b) South Trust Bank 00-000-000
(c) Bank of America 686765264
(d) Merchants & Manufacturers 2300064637
(e) National City Bank 825827133
(f) Chase Bank of Texas 07000915041
(g) Xxxxx Fargo Bank 1018170833
(h) Bankers Trust 05 791 6
(i) Standard Federal Bank 6840 84772 4
(j) Bank of America 4772196882
(k) Fifth Third Bank 7690052811
(l) Bank of America 24589-14502
(m) Chase Bank of Texas 31500921734
(n) Heritage Bank 59700572310
(o) Bank of America 2458914502
(p) Union Planters Bank 0020140967
(q) Bank of America 1596480625
(r) Suntrust Bank 0000000000
(s) Bank One 21420864
(t) Xxxxxxxx Xxxx Xxxx 000000000
(x) Xxxxx Xxxxx Bank 4419-701024
(v) Salem Bank and Trust 1847940212
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Bank Name Account Number
--------- --------------
(w) Xxxxx Fargo Bank 0439 814161
(x) South Trust Bank 00-000-000
(y) South Trust Bank 00-000-000
(z) Fidelity Deposit and Security Co. 11454730-14
(aa) Xxxxx Fargo Bank 0224 635649
(bb) AMSouth Bank 6100052456
(cc) Xxxxx Fargo Bank 0419-456553
(dd) Bank of America 3750965405
(ee) Xxxxx Fargo Bank 3884015676
(ff) Bank of America 3750965395
"RESTRICTED PAYMENT" shall mean, with respect to any member of the Parent
Group (a) the declaration or payment of any dividend or the incurrence of any
liability to make any other payment or distribution of cash or other property or
assets in respect of Equity Interests; (b) any payment on account of the
purchase, redemption, defeasance, sinking fund or other retirement of such
member's Equity Interests or any other payment or distribution made in respect
thereof, either directly or indirectly; (c) any payment made to redeem,
purchase, repurchase or retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire Equity Interests of such member now
or hereafter outstanding; (e) any payment of a claim for the rescission of the
purchase or sale of, or for material damages arising from the purchase or sale
of, any shares of such member's Equity Interests or of a claim for
reimbursement, indemnification or contribution arising out of or related to any
such claim for damages or rescission; (f) any payment, loan, contribution, or
other transfer of funds or other property to any Equity Holder of such member
other than payment of compensation in the ordinary course of business to Equity
Holders who are employees of such member; and (g) any payment of management fees
(or other fees of a similar nature) by such member to any Equity Holder of such
member or its Affiliates.
"RETIREE WELFARE PLAN" shall mean, at any time, a Welfare Plan that
provides for continuing coverage or benefits for any participant or any
beneficiary of a participant after such participant's termination of employment,
other than continuation coverage provided pursuant to Section 4980B of the Code
and at the sole expense of the participant or the beneficiary of the
participant.
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"RETURNED GOODS" shall mean all right, title and interest of the
Originators, the Buyer, the Seller, the Purchasers and/or the Agent, as
applicable, in and to returned, repossessed, reclaimed, traded-in or foreclosed
upon trailers, goods and/or merchandise, the sale of which gave rise to a
Transferred Receivable.
"REVOLVING PERIOD" shall mean the period from and including the Closing
Date through and including the day immediately preceding the Facility
Termination Date.
"SALE" shall mean with respect to a sale of Receivables under the Sale
Agreement, a sale of Receivables by the Originator to the Seller in accordance
with the terms of the Sale Agreement.
"SALE AGREEMENT" shall mean that certain Receivables Sale and Contribution
Agreement dated as of April 11, 2002, among the Originators, as sellers, the
Performance Guarantor, and the Seller, as buyer thereunder.
"SALE PRICE" shall mean, with respect to any Sale of Sold Receivables, the
price calculated by the Seller and approved from time to time by the Agent equal
to:
(a) the Outstanding Balance of such Sold Receivable, minus
(b) the expected costs to be incurred by the Seller in financing the
purchase of such Sold Receivables until the Outstanding Balance of such Sold
Receivables is paid in full, minus
(c) the portion of such Sold Receivables that are reasonably expected
by such Originator to become Defaulted Receivables, minus
(d) the portion of such Sold Receivables that are reasonably expected
by such Originator to be reduced by means other than the receipt of Collections
thereon or pursuant to clause (c) above, minus
(e) amounts expected to be paid to the Servicer with respect to the
servicing, administration and collection of such Sold Receivables;
provided, that such calculations shall be determined based on the historical
experience of (y) such Originator, with respect to the calculations required in
each of clauses (c) and (d) above, and (z) the Seller, with respect to the
calculations required in clauses (b) and (e) above.
"SCHEDULE OF DOCUMENTS" shall mean the schedule, including all appendices,
exhibits or schedules thereto, listing certain documents and information to be
delivered in connection with the Sale Agreement, the Purchase Agreement and the
other Related Documents and the transactions contemplated thereunder,
substantially in the form attached as Annex Y to the Purchase Agreement and the
Sale Agreement.
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"SECURED OBLIGATIONS" shall have the meaning assigned to it in the
Intercreditor and Collateral Agency Agreement.
"SECURED PARTIES" shall have the meaning assigned to it in the
Intercreditor and Collateral Agency Agreement.
"SECURITIES ACT" shall mean the provisions of the Securities Act of 1933,
15 U.S.C. Sections 77a et seq., and any regulations promulgated thereunder.
"SECURITIES EXCHANGE ACT" shall mean the provisions of the Securities
Exchange Act of 1934, 15 U.S.C. Sections 78a et seq., and any regulations
promulgated thereunder.
"SELLER" shall mean WNC Receivables, LLC, a Delaware limited liability
company, in its capacity as seller under the Purchase Agreement.
"SELLER ACCOUNT" shall mean a deposit account maintained in the name of the
Seller at a commercial bank in the United States of America, as designated by
the Seller from time to time.
"SELLER ACCOUNT COLLATERAL" shall have the meaning assigned to it in
Section 8.01(c) of the Purchase Agreement.
"SELLER ASSIGNED AGREEMENTS" shall have the meaning assigned to it in
Section 8.01(b) of the Purchase Agreement.
"SELLER COLLATERAL" shall have the meaning assigned to it in Section 8.01
of the Purchase Agreement.
"SELLER PARTIES" shall have the meaning assigned to it in the recitals of
the Purchase Agreement.
"SELLER SECURED OBLIGATIONS" shall mean all loans, advances, debts,
liabilities, indemnities and obligations for the performance of covenants, tasks
or duties or for payment of monetary amounts (whether or not such performance is
then required or contingent, or such amounts are liquidated or determinable)
owing by the Seller to any Affected Party under the Purchase Agreement and any
document or instrument delivered pursuant thereto, and all amendments,
extensions or renewals thereof, and all covenants and duties regarding such
amounts, of any kind or nature, present or future, whether or not evidenced by
any note, agreement or other instrument, arising thereunder, including Capital
Investment, Daily Yield, Unused Facility Fees, amounts in reduction of Purchase
Excess, Successor Servicing Fees and Expenses, Additional Amounts and
Indemnified Amounts. This term includes all principal, interest (including all
interest that accrues after the commencement of any case or proceeding by or
against the Seller in bankruptcy, whether or not allowed in such case or
proceeding), fees, charges, expenses, attorneys' fees and any other sum
chargeable to the Seller thereunder, whether now existing or hereafter arising,
voluntary or involuntary, whether or not jointly owed
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with others, direct or indirect, absolute or contingent, liquidated or
unliquidated, and whether or not from time to time decreased or extinguished and
later increased, created or incurred, and all or any portion of such obligations
that are paid to the extent all or any portion of such payment is avoided or
recovered directly or indirectly from any Purchaser or the Agent or any
transferee of the Purchaser or the Agent as a preference, fraudulent transfer or
otherwise.
"SENIOR NOTE" shall mean any of the Parent's 6.41% Series A Senior Secured
Notes due March 30, 2004, Designated Rate Senior Secured Notes, Series C, due
March 30, 2004, 7.31% Senior Secured Notes, Series D, due December 17, 2004,
Designated Rate Senior Secured Notes, Series E, due March 13, 2005, 7.47% Senior
Secured Notes, Series F, due December 17, 2006, 7.53% Senior Secured Notes,
Series G, due December 30, 2008, 7.55% Senior Secured Notes, Series H, due
December 17, 2008, 8.04% Senior Secured Notes, Series I, due September 29, 2007,
or the PIK Notes.
"SERVICER" shall mean Wabash Financing, LLC, in its capacity as the
Servicer under the Purchase Agreement, or any other Person designated as a
Successor Servicer.
"SERVICER TERMINATION NOTICE" shall mean any notice by the Agent to the
Servicer that (a) an Event of Servicer Termination has occurred and (b) the
Servicer's appointment under the Purchase Agreement has been terminated.
"SERVICING FEE" shall mean, for any day within a Settlement Period, the
amount equal to (a)(i) the Servicing Fee Rate divided by (ii) 360, multiplied by
(b) the Transferred Receivables on such day.
"SERVICING FEE RATE" shall mean 1.00%.
"SERVICING RECORDS" shall mean all documents, books, Records and other
information (including computer programs, tapes, disks, data processing software
and related property and rights) prepared and maintained by the Servicer with
respect to the Transferred Receivables and the Obligors thereunder.
"SERVICING SOFTWARE" shall mean the data processing software used by the
Originators, Servicer and/or Seller for the purpose of servicing, monitoring,
and retaining data regarding the Transferred Receivables and the Obligors
thereunder.
"SETTLEMENT DATE" shall mean the tenth Business Day following the end of
each Settlement Period.
"SETTLEMENT PERIOD" shall mean (a) solely for purposes of determining the
Ratios, (i) with respect to all Settlement Periods other than the final
Settlement Period, each calendar month, whether occurring before or after the
Closing Date, and (ii) with respect to the final Settlement Period, the period
ending on the Termination Date and beginning with the first day of the calendar
month in which the Termination Date occurs, and (b) for all other purposes, (i)
with respect to the initial Settlement Period, the period from and including the
Closing Date through
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and including the last day of the calendar month in which the Closing Date
occurs, (ii) with respect to the final Settlement Period, the period ending on
the Termination Date and beginning with the first day of the calendar month in
which the Termination Date occurs, and (iii) with respect to all other
Settlement Periods, each calendar month.
"SOLD RECEIVABLE" shall have the meaning assigned to it in Section 2.01(b)
of the Sale Agreement.
"SOLVENT" shall mean, with respect to any Person on a particular date, that
on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such
Person; (b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of such
Person on its Indebtedness as they become absolute and matured; (c) such Person
does not intend to, and does not believe that it will, incur Indebtedness or
liabilities beyond such Person's ability to pay as such Indebtedness and
liabilities mature; and (d) such Person is not engaged in a business or
transaction, and is not about to engage in a business or transaction, for which
such Person's property would constitute an unreasonably small capital. The
amount of contingent liabilities (such as Litigation, guaranties and pension
plan liabilities) at any time shall be computed as the amount that, in light of
all the facts and circumstances existing at the time, represents the amount that
can reasonably be expected to become an actual or matured liability.
"ST. LOUIS REAL ESTATE" shall mean the real property commonly known as
00000 Xxxxxxxx Xxxxxxx Xxxxx, Xx. Xxxxx, XX 00000.
"SUBORDINATED INDEBTEDNESS" shall mean, for any period, on a consolidated
basis for the Parent and its Subsidiaries, the sum of Indebtedness of such
Persons the payment of which is subordinated to the payment of the Secured
Obligations to the written satisfaction of the Credit Facility Agent.
"SUB-SERVICER" shall mean any Person with whom the Servicer enters into a
Sub-Servicing Agreement.
"SUB-SERVICING AGREEMENT" shall mean any written contract entered into
between the Servicer and any Sub-Servicer pursuant to and in accordance with
Section 7.01 of the Purchase Agreement relating to the servicing, administration
or collection of the Transferred Receivables.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation or
other entity (a) of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of directors or other
Persons performing similar functions are at the time directly or indirectly
owned by such Person or (b) that is directly or indirectly controlled by such
Person within the meaning of control under Section 15 of the Securities Act.
"SUCCESSOR SERVICER" shall have the meaning assigned to it in Section 11.02
of the Purchase Agreement.
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"SUCCESSOR SERVICING FEES AND EXPENSES" shall mean the fees and expenses
payable to the Successor Servicer as agreed to by the Seller, the Purchaser and
the Agent.
"SUNTRUST SALE LEASEBACK" shall mean that certain sale and leaseback of
certain real property owned by the Parent and/or certain of its Domestic
Subsidiaries to be effected pursuant to that certain engagement letter
agreement, dated February 1, 2002, between the Parent and SunTrust Xxxxxxxx
Xxxxxxxx.
"TANGIBLE ASSETS" shall mean as of the date of any determination thereof,
with respect to any Person, total assets of such Person in accordance with
Agreement Accounting Principles, but excluding therefrom goodwill, patents,
patent applications, permits, trademarks, trade names, copyrights, licenses,
franchises, experimental expense, organizational expense, unamortized debt
discount and expense, the excess of cost of shares acquired over book value of
related assets and such other assets as are properly classified as "intangible
assets" in accordance with Agreement Accounting Principles.
"TERMINATION DATE" shall mean the date on which (a) Capital Investment has
been permanently reduced to zero, (b) all other Seller Secured Obligations under
the Purchase Agreement and the other Related Documents have been indefeasibly
repaid in full and completely discharged and (c) the Maximum Purchase Limit has
been irrevocably terminated in accordance with the provisions of Section 2.02(b)
of the Purchase Agreement.
"TERMINATION EVENT" shall have the meaning assigned to it in Section 9.01
of the Purchase Agreement.
"TITLE IV PLAN" shall mean a Pension Plan (other than a Multiemployer Plan)
that is covered by Title IV of ERISA and that any Originator or ERISA Affiliate
maintains, contributes to or has an obligation to contribute to on behalf of
participants who are or were employed by any of them.
"TRANSFER" shall mean any Sale or capital contribution of Transferred
Receivables to the Seller pursuant to the terms of the Sale Agreement.
"TRANSFER DATE" shall have the meaning assigned to it in Section 2.01(a) of
the Sale Agreement.
"TRANSFERRED RECEIVABLE" shall mean any Sold Receivable or Contributed
Receivable; provided, that any Receivable repurchased by an Originator thereof
pursuant to Section 4.05 of the Sale Agreement shall not be deemed to be a
Transferred Receivable from and after the date of such repurchase unless such
Receivable has subsequently been repurchased by or contributed to the Seller.
"UCC" shall mean, with respect to any jurisdiction, the Uniform Commercial
Code as the same may, from time to time, be enacted and in effect in such
jurisdiction.
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"UNAPPROVED RECEIVABLE" shall mean any Receivable (a) with respect to which
the Obligor thereunder is not an Obligor on any Transferred Receivable and whose
customer relationship with an Originator arises as a result of the acquisition
by such Originator of another Person, (b) that was originated in accordance with
standards established by another Person acquired by an Originator, in each case,
solely with respect to any such acquisitions that have not been approved in
writing by the Agent and then only for the period prior to any such approval, or
(c) with respect to which the Obligor thereunder is not creditworthy, as
determined by the Agent in its reasonable credit judgment.
"UNDERFUNDED PLAN" shall mean any Plan that has an Underfunding.
"UNDERFUNDING" shall mean, with respect to any Plan, the excess, if any, of
(a) the present value of all benefits under the Plan (based on the assumptions
used to fund the Plan pursuant to Section 412 of the Code) as of the most recent
valuation date over (b) the fair market value of the assets of such Plan as of
such valuation date.
"UNFUNDED LIABILITY" shall mean, at any time, the aggregate amount, if any,
of the sum of (a) the amount by which the present value of all accrued benefits
under each Title IV Plan exceeds the fair market value of all assets of such
Title IV Plan allocable to such benefits in accordance with Title IV of ERISA,
all determined as of the most recent valuation date for each such Title IV Plan
using the actuarial assumptions for funding purposes in effect under such Title
IV Plan, and (b) for a period of five years following a transaction that might
reasonably be expected to be covered by Section 4069 of ERISA, the liabilities
(whether or not accrued) that could be avoided by any Originator or any ERISA
Affiliate as a result of such transaction.
"UNDERFUNDING" shall mean, with respect to any Plan, the excess, if any, of
(a) the present value of all benefits under the Plan (based on the assumptions
used to fund the Plan pursuant to Section 412 of the Code) as of the most recent
valuation date over (b) the fair market value of the assets of such Plan as of
such valuation date.
"UNITED STATES" shall mean the United States of America (including the
District of Columbia but otherwise excluding its territories and possessions).
"UNMATURED DEFAULT" shall mean an event which, but for the lapse of time or
the giving of notice, or both, would constitute a Default (as defined in the
Credit Agreement).
"UNUSED FACILITY FEE" shall mean, on any date of determination, a fee equal
to the product of (a) the applicable Per Annum Daily Margin for Unused Facility
Fees multiplied by (b) the excess (if any) of the amount set forth in clause (i)
of Maximum Purchase Limit over the aggregate Capital Investment.
"WARRANTY POLICY" shall mean the warranty policies substantially in the
form of Schedule 4.01(s) to the Sale Agreement.
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"WEEKLY INVESTMENT BASE CERTIFICATE" shall have the meaning assigned to it
in Section 2.03(a)(ii) of the Purchase Agreement.
"WELFARE PLAN" shall mean a Plan described in Section 3(1) of ERISA.
SECTION 2. Other Terms and Rules of Construction.
(a) Accounting Terms. Unless otherwise specifically provided therein,
any accounting term used in any Related Document shall have the meaning
customarily given such term in accordance with Agreement Accounting Principles,
and all financial computations thereunder shall be computed in accordance with
Agreement Accounting Principles consistently applied. That certain items or
computations are explicitly modified by the phrase "in accordance with Agreement
Accounting Principles" shall in no way be construed to limit the foregoing.
(b) Other Terms. All other undefined terms contained in any of the
Related Documents shall, unless the context indicates otherwise, have the
meanings provided for by the UCC as in effect in the State of Illinois from time
to time to the extent the same are used or defined therein.
(c) Rules of Construction. Unless otherwise specified, references in
any Related Document or any of the Appendices thereto to a Section, subsection
or clause refer to such Section, subsection or clause as contained in such
Related Document. The words "herein," "hereof" and "hereunder" and other words
of similar import used in any Related Document refer to such Related Document as
a whole, including all annexes, exhibits and schedules, as the same may from
time to time be amended, restated, modified or supplemented, and not to any
particular section, subsection or clause contained in such Related Document or
any such annex, exhibit or schedule. Any reference to or definition of any
document, instrument or agreement shall, unless expressly noted otherwise,
include the same as amended, restated, supplemented or otherwise modified from
time to time. Wherever from the context it appears appropriate, each term stated
in either the singular or plural shall include the singular and the plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, feminine and neuter genders. The words "including," "includes" and
"include" shall be deemed to be followed by the words "without limitation"; the
word "or" is not exclusive; references to Persons include their respective
successors and assigns (to the extent and only to the extent permitted by the
Related Documents) or, in the case of Governmental Authorities, Persons
succeeding to the relevant functions of such Persons; and all references to
statutes and related regulations shall include any amendments of the same and
any successor statutes and regulations.
(d) Rules of Construction for Determination of Ratios. The Ratios as
of the last day of the Settlement Period immediately preceding the Closing Date
shall be established by the Agent on or prior to the Closing Date and the
underlying calculations for periods immediately preceding the Closing Date to be
used in future calculations of the Ratios shall be established by the Agent on
or prior to the Closing Date in accordance with Schedule 1 attached to this
Annex X. For purposes of calculating the Ratios, (i) averages shall be computed
by rounding to the third decimal place and (ii) the Settlement Period in which
the date of determination thereof
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occurs shall not be included in the computation thereof and the first Settlement
Period immediately preceding such date of determination shall be deemed to be
the Settlement Period immediately preceding the Settlement Period in which such
date of determination occurs.
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SCHEDULE 1
COMPUTATION OF RATIOS
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SCHEDULE 2
PERMITTED EXISTING CONTINGENT OBLIGATIONS
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SCHEDULE 3
PERMITTED EXISTING INDEBTEDNESS
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SCHEDULE 4
PERMITTED EXISTING INVESTMENTS
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SCHEDULE 5
PERMITTED EXISTING LIENS
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SCHEDULE ER-C
FORM OF WAIVER OF OFFSET LETTER
[WABASH NATIONAL LOGO]
VIA XXXXXXXX
Addressee: Mr. Xxxx Xxxxx
Customer: Swift Leasing Co., Inc.
Address: 0000 X. 00xx Xxx.
Xxxxxxx, XX 00000
Dear Xxxx:
On April 12, we closed on the restructuring of our senior indebtedness,
including our working capital facilities. One of the lenders participating in
this financing, General Electric Capital Corporation (together with its
affiliates, "GECC"), will finance the accounts receivable that we and our
affiliates ("Wabash") generate in connection with our new trailer sales. As part
of that financing, GECC has asked us to request that our customers acknowledge
and agree that they will not assert a right of offset or recoupment ("Offset")
against Wabash or GECC solely as such Offset might exist with respect to
Wabash's obligations to accept or pay for any used trailers in connection with
the purchase of new trailers from Wabash. I would appreciate it if you sign this
letter acknowledging your agreement to not assert against Wabash or GECC any
Offset with respect to any account receivable owed by you (or any of your
affiliates) to Wabash and that GECC will rely on your agreement in extending
financing to us.
If you could sign this letter and return it to me by telecopy as soon as
possible it would be greatly appreciated. My telecopy number is 000-000-0000.
Thank you in advance for your cooperation and prompt attention to this matter.
Best regards,
Xxxx Xxxxxx
Senior V.P.-CFO
Acknowledged and agreed to:
Swift Leasing, Co., Inc
By:
------------------------------------
Title:
---------------------------------
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