EXHIBIT 10.17
AMENDMENT NO. 1
TO LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT
("Amendment") is dated as of October 23, 2003 and is by and among FLEET CAPITAL
CORPORATION, a Rhode Island corporation, and the other parties identified as
Lenders on the signature pages hereto (collectively, "Lenders"), on the one
hand, and WABASH NATIONAL CORPORATION, a Delaware corporation, WABASH NATIONAL,
L.P., a Delaware limited partnership, WNC CLOUD MERGER SUB, INC., an Arkansas
corporation, and FTSI DISTRIBUTION COMPANY, L.P., a Delaware limited partnership
(collectively, "Borrowers"), on the other hand. Capitalized terms used herein
but not otherwise defined herein shall have the respective meanings assigned to
such terms in the Loan Agreement referred to herein below.
W I T N E S S E T H:
WHEREAS, Lenders and Borrowers are parties to a Loan and
Security Agreement, dated as of September 23, 2003 (as the same has been and may
be amended or modified from time to time, the "Loan Agreement"), pursuant to
which the Lenders have agreed to make certain loans and other financial
accommodations to or for the account of Borrower;
WHEREAS, Borrowers have requested that Lenders amend the Loan
Agreement in certain respects; and
WHEREAS, the Majority Lenders have agreed to amend the Loan
Agreement on the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
respective parties hereto hereby agree as follows:
1. Amendments. Subject to the satisfaction of the
conditions set forth in Section 4 below, and in reliance upon the
representations and warranties of Borrowers set forth herein, the Loan Agreement
is hereby amended as follows:
(a) The reference to "October 23, 2003" in the final
sentence of Section 6.2.4 shall be deleted and replaced with "November 30,
2003."
(b) The parenthetical in the fifth sentence of Section
5.4 shall be deleted and replaced with "(which surveys may be delivered within
30 days after the Closing Date for all such parcels of real Property except for
those parcels of real Property located at 0000 Xxxxxx Xxxx, Xxxxxxxxxxxxxx,
Xxxxxxx and X.X. #0, Xxx 00X, Xxxxxxxx, Xxxxxxxxxxxx for which surveys may be
delivered within 60 days after the Closing Date)."
2. Scope of Amendment. Subject to the satisfaction of
the conditions set forth in Section 4 below and in reliance upon the
representations and warranties of Borrowers set forth therein, this Amendment
shall have the effect of amending the Loan Agreement as appropriate to express
the agreements contained herein. In all other respects, the Loan Agreement and
the other Loan Documents shall remain in full force and effect in accordance
with their respective terms.
3. Conditions to Effectiveness. The effectiveness of
this Amendment and the amendments contained herein are subject to the
satisfaction of the following conditions precedent or concurrent:
(a) Agent shall have received a fully executed copy of
this Amendment.
(b) No Default or Event of Default shall be in existence.
4. Representations, Warranties and Covenants. To induce
Lenders to execute and deliver this Amendment, Borrowers hereby represent and
warrant to Lenders that, after giving effect to this Amendment:
(a) All representations and warranties contained in the
Loan Agreement and the other Loan Documents are true and correct in all material
respects on and as of the date of this Amendment, in each case as if then made,
other than representations and warranties that expressly relate solely to an
earlier date (in which case such representations and warranties remain true and
accurate on and as of such earlier date).
(b) No Default or Event of Default has occurred which is
continuing.
(c) This Amendment, and the Loan Agreement, as amended
hereby, constitute legal, valid and binding obligations of Borrowers and are
enforceable against Borrowers in accordance with their respective terms.
(d) The execution and delivery by Borrowers of this
Amendment does not require the consent or approval of any Person, except such
consents and approvals as have been obtained.
5. Governing Law. THE VALIDITY, INTERPRETATION AND
ENFORCEMENT OF THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS AND DECISIONS OF THE STATE OF ILLINOIS, WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES.
6. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
7. Counterparts. This Amendment may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when
so executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. Any such counterpart which may be
delivered by facsimile transmission shall be deemed the equivalent of an
originally signed counterpart and shall be fully admissible in any enforcement
proceedings regarding this Amendment.
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the date first set forth above.
LENDERS:
FLEET CAPITAL CORPORATION, as Lender
By:
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Title: Sr. Vice President
NATIONAL CITY COMMERCIAL
FINANCE, INC., as Lender
By: /s/
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Title: Vice President
GENERAL ELECTRIC
CAPITAL CORPORATION, as Lender
By: /s/
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Title: Vice President
WACHOVIA BANK,
NATIONAL ASSOCIATION, as Lender
By: /s/
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Title: XX
XXXXXXX XXXXX CAPITAL, a Division of
Xxxxxxx Xxxxx Business Financial Services,
Inc., as Lender
By: /s/
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Title: Vice President
WASHINGTON MUTUAL BANK, as Lender
By: /s/
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Title: Vice President
FIFTH THIRD BANK, as Lender
By: /s/
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Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
as Lender
By: /s/
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Title: FVP
BORROWERS:
WABASH NATIONAL CORPORATION
By /s/
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Title: V. P. & TREASURER
WABASH NATIONAL, L.P.
By /s/
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Title: Authorized Rep.
WNC CLOUD MERGER SUB, INC.
By /s/
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Title: Authorized Rep.
FTSI DISTRIBUTION COMPANY, L.P.
By /s/
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Title: Authorized Rep.
REAFFIRMATION
Wabash National Trailer Centers, Inc., a Delaware corporation,
Wabash Financing LLC, a Delaware limited liability company, National Trailer
Funding, L.L.C., a Delaware limited liability company, Apex Trailer Leasing &
Rentals, L.P., a Delaware limited partnership, Continental Transit Corporation,
an Indiana corporation, WTSI Technology Corp., a Delaware corporation, Wabash
Technology Corp., a Delaware corporation, and Wabash National Services, L.P., a
Delaware limited partnership, (each "Guarantor" and collectively, "Guarantors")
hereby (i) acknowledge receipt of a copy of the foregoing Amendment No. 1 to
Loan and Security Agreement (the "Amendment"); (ii) affirm that nothing
contained in the Amendment shall modify in any respect whatsoever any Loan
Document to which any Guarantor is a party; and (iii) reaffirm that such Loan
Documents and all obligations of the Guarantors thereunder shall continue to
remain in full force and effect.
IN WITNESS WHEREOF, Guarantors have executed this
Reaffirmation on and as of the date of the Amendment.
WABASH NATIONAL TRAILER CENTERS,
INC.
By /s/
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Title Authorized Representative
WABASH FINANCING LLC
By /s/
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Title Authorized Representative
NATIONAL TRAILER FINANCING, L.L.C
By /s/
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Title Authorized Representative
APEX TRAILER LEASING & RENTALS, L.P.
By /s/
----------------------------------------
Title Authorized Representative
CONTINENTAL TRANSIT CORPORATION
By /s/
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Title Authorized Representative
WTSI TECHNOLOGY CORP.
By /s/
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Title Authorized Representative
WABASH TECHNOLOGY CORP.
By /s/
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Title Authorized Representative
WABASH NATIONAL SERVICES, L.P.
By /s/
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Title Authorized Representative
