EXHIBIT 10.48
AMENDMENT NO. 2
Dated as of April 11, 2003
to
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of April 11, 2002
THIS AMENDMENT NO. 2 ("Amendment") is made as of April 11,
2003 by and among Wabash National Corporation (the "Borrower"), the financial
institutions listed on the signature pages hereof (the "Lenders") and Bank One,
NA, as Administrative Agent (the "Agent"), under that certain Amended and
Restated Credit Agreement dated as of April 11, 2002 by and among the Borrower,
the Lenders and the Agent, as amended prior to the date hereof (the "Credit
Agreement"). Defined terms used herein and not otherwise defined herein shall
have the respective meanings given to them in the Credit Agreement.
WHEREAS, the Borrower, the Lenders and the Agent have agreed
to amend the Credit Agreement on the terms and conditions set forth herein;
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
Borrower, the Lenders and the Agent have agreed to the following amendments to
the Credit Agreement.
1. Amendments to Credit Agreement. Subject to the satisfaction
of the conditions precedent set forth in Section 3 below, the Credit Agreement
is hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is amended by adding
the following new defined terms to such Section:
"AMORTIZATION DEBT" means, at any time the same is to be
determined, the sum of (i) the outstanding principal amount of the
Senior Notes (excluding in any event the Related Notes) as of such time
plus (ii) the sum of (A) the outstanding principal amount of all of the
Term Loans (other than the PIK Notes) plus (B) the amount then
available for drawing under all Term Letters of Credit plus (C) the
amount of unpaid reimbursement obligations with respect to drawings
under all Term Letters of Credit.
"BANK DEFERRED FEE ALLOCATION" means, at any time, the
percentage determined by dividing (a) the aggregate amount of the
amendment fees in favor of the Administrative Agent and the Lenders as
required by, and in connection with, the Second Amendment by (b) the
aggregate of the Second Amendment Closing Fees (as defined in Section
2.14(d) hereof).
"ELIGIBLE ASSET DISPOSITION CHARGES" means charges, calculated
in accordance with Agreement Accounting Principles, incurred by the
Borrower in its fiscal year ending on December 31, 2003 but only to the
extent (i) such charges relate solely and directly to the sales of
assets and properties permitted under Section 6.3(B) (including without
limitation charges composed of brokerage and investment banking fees,
rental and used trailer disposition fees and charges and other
disposition transaction costs) and (ii) the proceeds of such sales are
used to prepay Indebtedness of the Borrower and its Subsidiaries to the
extent permitted hereunder.
"ELIGIBLE ASSET IMPAIRMENT CHARGES" means up to $35,000,000 in
the aggregate attributable to, without duplication, any charges
incurred by the Borrower in its fiscal year ending on December 31, 2003
but only to the extent such charges relate solely and directly to the
impairment of long-lived assets, goodwill and other intangible assets,
all in accordance with Agreement Accounting Principles.
"ELIGIBLE MISCELLANEOUS NON-CASH CHARGES" means non-cash
charges (including but not limited to non-cash losses on finance
contracts, severance and other loss contingencies but excluding
Eligible Asset Impairment Charges and Eligible Restructuring Charges),
calculated in accordance with Agreement Accounting Principles and, to
the extent deducted in computing Consolidated Operating Income,
incurred by the Borrower in its fiscal year ending on December 31, 2003
but only to the extent the aggregate amount of such non-cash charges do
not exceed $10,000,000.
"ELIGIBLE RESTRUCTURING CHARGES" means any charges incurred by
the Borrower in its fiscal year ending on December 31, 2003 but only to
the extent such charges (i) are incurred in accordance with Agreement
Accounting Principles and (ii) relate solely and directly to the
restructuring, waiving or amending of the instruments and documents
evidencing any of the Secured Obligations and other lines of credit,
leases or other extensions of credit, including any amounts paid to any
lenders, advisor fees and other related costs.
"FLEET EQUIVALENT INCREASE" is defined in Section 2.6(b)
hereof.
"FLEET PARTICIPATION AGREEMENT" means that certain Amended and
Restated Participation Agreement dated as of March 30, 2001 as
currently in effect among Apex Trailer Leasing & Rentals, L.P., the
Borrower, certain financial institutions from time to time party
thereto, U.S. Bank National Association, as trustee and Fleet Capital
Corporation individually and as owner participant, collateral agent and
administrative agent, as such agreement may be amended, restated,
supplemented or otherwise modified from time to time.
"MONTHLY AMORTIZATION AMOUNT" means (i) $1,166,667 with
respect to the first nine (9) installments, (ii) $4,958,333 with
respect to the succeeding four (4) installments, (iii) $2,479,167 with
respect to the succeeding eight (8) installments and (iv) $4,958,333
with respect to the remaining three (3) installments; provided that,
with respect to the additional January 15, 2004 installment required
under Section 2.1(B)(c), "Monthly Amortization Amount" means
$19,833,332 minus the aggregate amount of payments in
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excess, if any, of $19,833,332 made by the Borrower on the Amortization
Debt from the Second Amendment Effective Date to December 31, 2003.
"SECOND AMENDMENT" means that certain Amendment No. 2 dated as
of April 11, 2003 among the Borrower, the Lenders and the
Administrative Agent.
"SECOND AMENDMENT EFFECTIVE DATE" means April 11, 2003.
"TARGETED CONSOLIDATED EBITDA AMOUNT" means, for each relevant
month, the cumulative Consolidated EBITDA amount (measured from and
after January 1, 2003) furnished on March 6, 2003 to the Lenders as
part of the Borrower's 2003 budget minus that portion of such
cumulative Consolidated EBITDA amount which is attributable to the
sale, from and after January 1, 2003, of any assets or any Subsidiary
to the extent permitted herein or otherwise approved by the Required
Lenders.
"UNADJUSTED CONSOLIDATED EBITDA" means , for any period, on a
consolidated basis for the Borrower and its consolidated Subsidiaries,
the sum of the amounts for such period, without duplication, of (i)
Consolidated Operating Income, plus (ii) charges against income for
foreign taxes and U.S. income taxes to the extent deducted in computing
Consolidated Operating Income, plus (iii) Interest Expense to the
extent deducted in computing Consolidated Operating Income, plus (iv)
depreciation expense to the extent deducted in computing Consolidated
Operating Income, plus (v) amortization expense, including, without
limitation, amortization of goodwill and other intangible assets to the
extent deducted in computing Consolidated Operating Income, plus (vi)
Eligible Asset Disposition Charges to the extent deducted in computing
Consolidated Operating Income, minus (a) the total interest income of
the Borrower and its Subsidiaries to the extent included in computing
Consolidated Operating Income minus (b) the total tax benefit reported
by the Borrower and its Subsidiaries to the extent included in
computing Consolidated Operating Income.
(b) Section 1.1 of the Credit Agreement is further amended by
amending the definitions of "BANK PRINCIPAL ALLOCATION", "CONSOLIDATED EBITDA",
"CONSOLIDATED EQUITY" and "PAYMENT DATE" in their entirety to read as follows:
"BANK PRINCIPAL ALLOCATION" shall mean, at any time, the
percentage determined by dividing (a) the sum of (i) the outstanding
principal amount of all of the Term Loans (other than the PIK Notes)
plus (ii) the amount then available for drawing under all Term Letters
of Credit plus (iii) the amount of unpaid reimbursement obligations
with respect to drawings under all Term Letters of Credit by (b) the
sum of (i) the outstanding principal amount of the Senior Notes
(excluding in any event the Related Notes) as of such time and (ii) the
sum of (A) the outstanding principal amount of all of the Term Loans
(other than the PIK Notes) plus (B) the amount then available for
drawing under all Term Letters of Credit plus (C) the amount of unpaid
reimbursement obligations with respect to drawings under all Term
Letters of Credit.
"CONSOLIDATED EBITDA" means, for any period, on a consolidated
basis for the Borrower and its consolidated Subsidiaries, the sum of
the amounts for such period,
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without duplication, of (i) Consolidated Operating Income, plus (ii)
charges against income for foreign taxes and U.S. income taxes to the
extent deducted in computing Consolidated Operating Income, plus (iii)
Interest Expense to the extent deducted in computing Consolidated
Operating Income, plus (iv) depreciation expense to the extent deducted
in computing Consolidated Operating Income, plus (v) amortization
expense, including, without limitation, amortization of goodwill and
other intangible assets to the extent deducted in computing
Consolidated Operating Income, plus (vi) Eligible Asset Disposition
Charges to the extent deducted in computing Consolidated Operating
Income, plus (vii) Eligible Asset Impairment Charges to the extent
deducted in computing Consolidated Operating Income, plus (viii)
Eligible Miscellaneous Non-Cash Charges to the extent deducted in
computing Consolidated Operating Income, plus (ix) Eligible
Restructuring Charges to the extent deducted in computing Consolidated
Operating Income, minus (a) the total interest income of the Borrower
and its Subsidiaries to the extent included in computing Consolidated
Operating Income minus (b) the total tax benefit reported by the
Borrower and its Subsidiaries to the extent included in computing
Consolidated Operating Income.
"CONSOLIDATED EQUITY" means as of the date of any
determination thereof for any relevant period, the total stockholders'
equity of the Borrower and its Subsidiaries on a consolidated basis, as
determined in accordance with Agreement Accounting Principles, plus the
sum of the amounts for such period, without duplication, of (i) foreign
currency translation and transaction gains and losses, plus (ii) all
charges against income for foreign taxes and U.S. income taxes, plus
(iii) Eligible Asset Disposition Charges, plus (iv) Eligible Asset
Impairment Charges, plus (v) Eligible Non-Cash Miscellaneous Charges,
plus (vi) Eligible Restructuring Charges.
"PAYMENT DATE" means the last Business Day of each calendar
month.
(c) Section 2.1(B)(c)(i) of the Credit Agreement is
amended in its entirety to read as follows:
(c) Repayment of the Term Credit. (i) The unpaid
principal balance of the Term Credit shall be repaid in
twenty-four (24) consecutive monthly principal installments,
payable on the last Business Day of each calendar month,
commencing on April 30, 2002, and continuing thereafter until
the Termination Date (provided that one additional installment
shall be due and payable on January 15, 2004), and the Term
Credit shall be permanently reduced by the amount of each
installment on the date payment thereof is made hereunder.
Each monthly installment on the Term Credit shall be in an
aggregate principal amount equal to the product of the Bank
Principal Allocation times the Monthly Amortization Amount.
The then outstanding principal balance of the Term Credit, if
any, shall be due and payable on the Termination Date. No
installment of any Term Credit shall be reborrowed once
repaid.
(d) Section 2.3(B)(c) of the Credit Agreement is amended
by deleting the reference to "June 30, 2002" appearing therein and
inserting "March 31, 2004" in lieu thereof.
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(e) Section 2.6(b) of the Credit Agreement is amended
in its entirety to read as follows:
(b) Determination of Applicable Margin, Applicable Letter of
Credit Fee and Applicable Revolving Loan Commitment Fee. As
used in this Section 2.6(b) and in this Agreement, the
following terms shall have the following meanings:
"Applicable Margin", "Applicable Revolving Loan Commitment
Fee" and "Applicable Letter of Credit Fee" shall mean the sum
of (x) the per annum rates, effective as of February 27, 2003,
constituting the Applicable Margin, Applicable Revolving Loan
Commitment Fee and Applicable Letter of Credit Fee,
respectively, as set forth in the chart below plus (y) the
"Additional Spread" described below:
---------------------------------------------------------------------------------------------------
APPLICABLE APPLICABLE APPLICABLE APPLICABLE APPLICABLE APPLICABLE APPLICABLE
MARGIN WITH MARGIN WITH MARGIN WITH MARGIN WITH REVOLVING LOAN LETTER OF LETTER OF
RESPECT TO RESPECT TO RESPECT TO RESPECT TO COMMITMENT FEE CREDIT FEE CREDIT FEE
BASE RATE BASE RATE EURODOLLAR EURODOLLAR FOR REVOLVER FOR TERM
LOANS WHICH LOANS WHICH RATE LOANS RATE LOANS LETTERS OF LETTERS OF
ARE REVOLVING ARE TERM WHICH ARE WHICH ARE CREDIT CREDIT
LOANS LOANS REVOLVING TERM LOANS
LOANS
---------------------------------------------------------------------------------------------------
2.00% 2.00% 4.05% 4.30% 1.00% 4.05% 4.30%
---------------------------------------------------------------------------------------------------
In addition, the foregoing per annum rates (other than the
Applicable Revolving Loan Commitment Fee) shall be subject,
for each month the same are determined, to an increase during
such month equal to the sum of (i) 0.50% for every 10% of
negative variance from the Targeted Consolidated EBITDA
Amount, (ii) 0.50% for every quarterly occurrence of a
Leverage Valuation Ratio above 0.85 to 1 as of the end of the
Borrower's most recently ended fiscal quarter and to be paid
in the quarter following such occurrence (it being understood
and agreed that, once in effect, such Leverage Valuation
Ratio-based increase (a "LEVERAGE INCREASE") will remain in
effect for each month prior to the Borrower's achievement of a
Leverage Valuation Ratio of 0.85 to 1 or less but shall cease
to apply (subject to subsequent quarterly occurrences of a
Leverage Valuation Ratio above 0.85 to 1) during and after
such month when the Borrower's quarterly-based Leverage
Valuation Ratio is equal to or less than 0.85 to 1), (iii)
0.50% for every monthly occurrence of a negative monthly
Unadjusted Consolidated EBITDA and (iv) 0.20% for every month
during which the "Additional Fee" (as identified and defined
in Section 10.1(d) of the Fleet Participation Agreement) is
payable under the Fleet Participation Agreement (a "Fleet
Equivalent Increase") (the amount calculated by adding the sum
of increases specified in the foregoing subsections (i), (ii),
(iii) and (iv) being referred to as the "ADDITIONAL Spread").
Each calculation of the Additional Spread (1) will be
determined as of the end of each calendar month (or quarter in
the case of the applicability of a Leverage Increase) and
shall be in effect for the next succeeding calendar month (or
quarter in the case of a Leverage Increase),
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(2) shall be determined without giving effect to, and shall
not be additive of, the Additional Spread determined in any
previous month and (3) shall be subject to the limitation that
the amount calculated by adding the sum of the increases
specified in the foregoing subsections (i), (ii) and (iii)
shall not exceed 5.00% for any month.
(f) Section 2.14 of the Credit Agreement is amended to insert
new subsections (c), (d) and (e) thereto which shall read as follows:
(c) In addition to the rate of interest otherwise
applicable thereto under Section 2.6(b) hereof and all other
amounts payable hereunder or in connection herewith, the
Borrower shall pay, by no later than January 15, 2004,
additional interest ("ADDITIONAL INTEREST") to the Lenders in
accordance with their Pro Rata Shares in an amount equal to
the aggregate of (i) each Deferred Principal Amount multiplied
by a rate per annum equal to 2.00% from the date such Deferred
Principal Amount is created and determined hereunder until the
date such Deferred Principal Amount has been paid in full plus
(ii) each Deferred Principal Amount multiplied by a rate per
annum equal to 1.00% from the date such Deferred Principal
Amount has been paid in full (through voluntary prepayments
pursuant to Section 2.3(a) hereof) to (but not including)
January 15, 2004. Each such voluntary prepayment shall be
applied to the earliest occurring Deferred Principal Amount
and, after the same has been paid in full, thereafter to each
immediately succeeding Deferred Principal Amount until all
Deferred Principal Amounts have been paid in full. On January
15, 2004, the Borrower shall pay all Deferred Principal
Amounts. As used in this Section 2.14(c), "DEFERRED PRINCIPAL
AMOUNT" means, with respect to each monthly repayment of the
Amortization Debt occurring on or after the Second Amendment
Effective Date but prior to January 1, 2004, the Bank
Principal Allocation multiplied by the excess of (x)
$4,958,333 minus (y) the actual amount of such repayment; it
being understood and agreed that each occurrence of such an
excess will create a new and independent Deferred Principal
Amount. Any payments of the Deferred Principal Amounts and
interest constituting, or comparable to, the Additional
Interest shall be made concurrently and on a ratable basis
among the relevant holders of the Amortization Debt.
(d) The Borrower acknowledges that it is required to
pay certain amendment/closing fees (in addition to and not
including the 0.25% fee described in subsection (e) below and
reimbursement for out of pocket costs and expenses) to (i) the
Administrative Agent and the Lenders in connection with, and
as required by, the Second Amendment, (ii) the holders of the
Senior Notes in connection with, and as required by,
amendments (comparable to the Second Amendment) to the Note
Agreements, (iii) General Electric Capital Corporation in
connection with, and as required by, the amendment (comparable
to the Second Amendment) to the Receivables Purchase Documents
and (iv) Fleet Capital Corporation in connection with, and as
required by, the amendment (comparable to the Second
Amendment) to the lease agreements evidencing the Fleet Lease
Transaction (such fees to such financial institutions being
hereinafter referred to
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collectively as the "SECOND AMENDMENT CLOSING FEES"). In lieu
of paying the entire balance of the Second Amendment Closing
Fees on the Second Amendment Effective Date, the Borrower
shall pay (1) to such financial institutions, on the Second
Amendment Effective Date, at least $2,000,000 (in the
aggregate) of such Second Amendment Closing Fees and the
portion of the Second Amendment Closing Fees paid to the
Lenders on the Second Amendment Effective Date shall not be
less than the Bank Deferred Fee Allocation multiplied by the
actual amount of the Second Amendment Closing Fees paid on the
Second Amendment Effective Date and (2) by a date no later
than January 15, 2004, (a) the then unpaid balance of the
Second Amendment Closing Fees to such financial institutions
and the portion of such unpaid balance paid to the Lenders on
such date shall not be less than the Bank Deferred Allocation
multiplied by such unpaid balance and (b) a deferral fee to
the Lenders in accordance with their Pro Rata Shares on the
Deferred Fee Amount at a rate per annum equal to the sum of
(A) the rate of interest applicable to Base Rate Loans which
are Term Loans plus (B) (i) 2.00% from the Second Amendment
Effective Date until the date such Deferred Fee Amount has
been paid in full plus (ii) 1.00% on the date immediately
prior to the day such Deferred Fee Amount balance has been
paid in full [and for the period from the date such Deferred
Fee amount has been paid in full until January 15, 2004. As
used in this Section 2.14(d), "DEFERRED FEE AMOUNT" means,
with respect to the Second Amendment Closing Fees, the Bank
Deferred Fee Allocation multiplied by the excess of (x) the
actual amount of the Second Amendment Closing Fees minus (y)
the amount of the Second Amendment Closing Fees paid on the
Second Amendment Effective Date. The Borrower agrees that in
connection with any payment on any date of the Deferred Fee
Amount or the deferral fees described above, the Borrower
shall pay to the Lenders (in accordance with their Pro Rata
Shares) on the same date an amount equal to the Bank Deferred
Fee Allocation multiplied by the amount of such payment.
(e) The Borrower shall pay, on January 15, 2004, a
restructuring fee to the Administrative Agent, for the ratable
account of each Lender, in an amount equal to 0.25% of the sum
of (i) the then outstanding amount of the Term Credit and (ii)
the daily average balance of the Revolving Credit Obligations
for the period of 30 days ending on January 15, 2004 (it being
understood and agreed that such restructuring fee shall be
non-refundable and is deemed to be fully earned on the Second
Amendment Effective Date).
(g) Section 6.1(A) of the Credit Agreement is amended to
insert the following immediately after the reference to "As soon as practicable
and in any event" appearing therein:
"(A) By no later than fifteen (15) days after the end
of each monthly accounting period of the Borrower, the
following (prepared in such format and detail as is required
by the Administrative Agent): (1) a statement of projected
cash sources and uses of the Borrower and its Subsidiaries for
the 13 calendar weeks following the end of such monthly
accounting period and a report (to the extent requested by the
Administrative Agent from time to time)
7
containing management's discussion and analysis of such
projections and (2) a statement of cash sources and uses for
the immediately preceding monthly accounting period of the
Borrower and for such historical period as is reasonably
required by the Administrative Agent, in comparative form
against the figures and for the corresponding date and period
in the projected cash flow statements required under the
foregoing subsection (1); the foregoing statements required
under subsections (1) and (2) being duly certified by the
chief financial officer or treasurer of the Borrower, (B)
Concurrently with the delivery of each monthly report and
information under the Fleet Participation Agreement (including
without limitation under Section 6.1(e)(vii) thereof), the
Borrower shall deliver to the Administrative Agent copies of
such reports and information and any other information
relevant to the calculation and determination of the Fleet
Equivalent Increase and (C)"
(h) Section 6.2 of the Credit Agreement is amended to insert a
new Section 6.2(R) thereto which shall read as follows:
(R) Canadian Guaranty and Collateral. By no later
than May 31, 2003, the Borrower shall (i) cause its Canadian
Subsidiary to execute and deliver to the Agent, a guarantee of
the Obligations pursuant to a guaranty agreement, or
supplement thereto, in form and substance satisfactory to the
Administrative Agent and its counsel, (ii) cause its Canadian
Subsidiary to execute and deliver to the Collateral Agent a
general security agreement, or supplement thereto, in form and
substance satisfactory to the Collateral Agent and its
counsel, (iii) execute and deliver a Pledge Agreement, or
supplement thereto, pledging 100% of the capital stock of its
Canadian Subsidiary and (iv) deliver to the Administrative
Agent corporate resolutions and other documentation (including
legal opinions, Personal Property Security Act financing
statements and such other instruments and documents as are
requested by, and in form and substance satisfactory to, the
Administrative Agent and its counsel) related to the delivery
of the foregoing agreements; provided that the Borrower may
elect not to provide that portion or amount of collateral
described above and evidenced by any of the foregoing
instruments and documents to the extent but only to the extent
that delivery of such collateral would cause its Canadian
Subsidiary's accumulated and undistributed earnings and
profits to be deemed to be repatriated to the Borrower or a
Domestic Subsidiary for U.S. federal income tax purposes and
the effect of such repatriation would be to cause materially
adverse tax consequences for the Borrower.
(i) Sections 6.4(A), (B), (C), (D), (E) and (F) of the Credit
Agreement are amended and restated in their entirety to read as follows:
(A) Intentionally Omitted.
(B) Minimum Consolidated Equity. The Borrower shall, as of the
last day of each of the fiscal quarters specified below,
maintain Consolidated Equity at an
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amount not less than the applicable "Minimum Consolidated
Equity" specified below:
Fiscal Quarter Ending Minimum Consolidated
--------------------- --------------------
Equity
------
March 31, 2003 $40,000,000
June 30, 2003 $35,000,000
September 30, 2003 $30,000,000
December 31, 2003 $25,000,000
(C) Maximum Leverage Valuation Ratio. The Borrower shall not
permit, as of the last day of each of the fiscal quarters
specified below, the Leverage Valuation Ratio to exceed the
applicable "Maximum Leverage Valuation Ratio" specified below:
Fiscal Quarter Ending Maximum Leverage Valuation
--------------------- --------------------------
Ratio
-----
March 31, 2003 0.95 to 1
June 30, 2003 0.95 to 1
September 30, 2003 0.95 to 1
December 31, 2003 0.95 to 1
(D) Minimum Consolidated EBITDA. The Borrower shall, as of the
last day of each of the fiscal quarters specified below,
maintain Consolidated EBITDA, at an amount not less than the
applicable "Minimum Cumulative Consolidated EBITDA" specified
below, for the period commencing on January 1, 2003 and ending
on such last day:
Minimum Cumulative Consolidated
-------------------------------
Month Ending EBITDA
------------ ------
March 31, 2003 $0
June 30, 2003 $5,000,000
September 30, 2003 $15,000,000
December 31, 2003 $20,000,000
(E) Minimum Interest Coverage Cash Collateral. The Borrower
shall, by no later than December 31, 2002, enter into a Cash
Collateral Agreement and, by no later than one (1) Business
Day prior to the first day of each fiscal quarter of the
Borrower ending on or after March 31, 2003, deposit funds
("CASH COLLATERAL FUNDS") with the Collateral Agent in an
amount not less than the aggregate amount of interest
required to be paid, through the end of the immediately
succeeding fiscal quarter, under this Agreement and under the
Note Agreements; provided that (i) in the case of interest
required to be paid through the end of the fiscal quarter
ending on March 31, 2004, the Borrower may deposit Cash
9
Collateral Funds on or before (but not after) January 15,
2004 and (ii) it being understood and agreed that if, at any
time subsequent to the date Cash Collateral Funds are
deposited, the aggregate amount of interest required to be so
paid increases, the Borrower shall promptly, and in any event
within three (3) Business Days after demand by the Agent or
by the holders of the Senior Notes, deposit additional funds
with the Collateral Agent in an aggregate amount not less
than the amount of such increase).
(F) Maximum Capital Expenditures. The Borrower will not, and
will not permit any Subsidiary to, expend for Capital
Expenditures during any fiscal year of the Borrower and its
Subsidiaries, in excess of $4,000,000 in the aggregate for
the Borrower and its Subsidiaries.
(j) Section 7.1 of the Credit Agreement is amended to add
new subsections (s) and (t) which shall read as follows:
(s) Failure to Deliver Refinancing
Commitment Letter. The Borrower shall fail to deliver, by no
later than January 31, 2004, one or more binding commitment
letters (in form and substance satisfactory to the Required
Secured Parties as defined in the Intercreditor Agreement)
from a bank, institutional lender or other qualified lending
source to pay in full, on or before the Termination Date, the
Secured Obligations as defined in the Intercreditor Agreement.
(t) Default under Fleet Participation
Agreement. A default or breach shall occur under the Fleet
Participation Agreement, regardless of whether such default is
waived or whether any right with respect to such default or
breach is exercised (including, without limitation, any
default or breach arising out of failure by Performance
Guarantor to deliver a business plan as required by Section
6.1(o) thereof).
(k) Section 7.1(b)(ii) of the Credit Agreement is
amending by inserting "or Section 6.2(R)" immediately after the reference to
"Section 6.2(Q)" appearing therein.
(l) Exhibit F to the Credit Agreement is amended in its
entirety by substituting therefor Amended Exhibit F attached to this Amendment.
2. Consent. Subject to the conditions precedent set
forth in Section 3 below, the Agent and the Lenders grant their consent to
certain transactions as follows:
Amendments to Documents. In connection with the amendments
specified in Section 1 hereof, the Borrower has informed the
Agent and Lenders of its intention to amend the Note
Agreements, the Receivables Purchase Documents and the lease
agreements evidencing the Fleet Lease Transactions, in each
case in a manner similar to the amendments hereunder. At the
Borrower's request, the Lenders consent to such amendments.
3. Conditions of Effectiveness. The effectiveness of
this Amendment is
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subject to the conditions precedent that (i) the Agent shall have received
counterparts of this Amendment duly executed by the Borrower, the Lenders and
the Agent and the Consent attached hereto duly executed by the Guarantors, (ii)
amendments to the Note Agreements, the Receivables Purchase Documents and the
lease agreements evidencing the Fleet Lease Transaction shall have been executed
and delivered by the parties thereto and become effective, which amendments
shall be in form and substance acceptable to the Agent and its counsel, (iii)
subject to the amendment set forth in Section 1(f) hereof, the Borrower shall
have paid to the Agent, for the ratable account of each Lender, an amendment fee
in an amount equal to 0.625% of such Lender's Revolving Loan Commitment and Term
Credit (each as calculated on the Second Amendment Effective Date), (iv) the
Agent shall have received, for the ratable account of each Lender, the aggregate
amount of unpaid interest on the relevant Obligations, accrued for the period
from February 27, 2003 up to and including the Second Amendment Effective Date,
including without limitation an amount equal to the excess of (A) the amount
that would have been payable on the relevant Obligations as a result of the
effectiveness, as of February 27, 2003, of the 0.50% increase in the Applicable
Margin, Applicable Letter of Credit Fee and Applicable Revolving Loan Commitment
Fee and the implementation of the Additional Spread, in each case pursuant
hereto minus (B) the amount of interest actually paid thereon for such period
and (v) the Agent shall have received reimbursement in full of the Agent's legal
and other advisory fees and expenses it has heretofore incurred in connection
with the preparation, negotiation, execution and delivery of this Amendment and
the transactions contemplated hereby.
4. Representations and Warranties of the Borrower. The
Borrower hereby represents and warrants as follows:
(a) This Amendment and the Credit Agreement as amended
hereby constitute legal, valid and binding obligations of the Borrower and are
enforceable against the Borrower in accordance with their terms.
(b) As of the date hereof and giving effect to the terms
of this Amendment, (i) there exists no Default or Unmatured Default and (ii) the
representations and warranties contained in Article V of the Credit Agreement,
as amended hereby, are true and correct, except for representations and
warranties made with reference solely to an earlier date and changes reflecting
events, conditions or transactions permitted or not prohibited by the Credit
Agreement.
5. Reference to and Effect on the Credit Agreement.
(a) Upon the effectiveness of Sections 1 and 2 hereof,
each reference to the Credit Agreement in the Credit Agreement or any other Loan
Document shall mean and be a reference to the Credit Agreement as amended or
waived (as applicable) hereby.
(b) Except as specifically amended above, the Credit
Agreement and all other documents, instruments and agreements executed and/or
delivered in connection therewith shall remain in full force and effect and are
hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Agent or the Lenders, nor constitute a waiver
of any provision of the Credit Agreement or any
11
other documents, instruments and agreements executed and/or delivered in
connection therewith.
6. Governing Law. This Amendment shall be governed by
and construed in accordance with the internal laws (and not the law of
conflicts) of the State of Indiana, but giving effect to federal laws applicable
to national banks.
7. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
8. Counterparts. This Amendment may be executed by one
or more of the parties hereto on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
[Signature Pages Follow]
12
IN WITNESS WHEREOF, this Amendment has been
duly executed as of the day and year first above written.
WABASH NATIONAL CORPORATION,
as the Borrower
By:_____________________________________________
Name:
Title:
BANK ONE, NA, as Administrative Agent and as a Lender
By:_____________________________________________
Name:
Title:
THE NORTHERN TRUST COMPANY,
as a Lender
By:_____________________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By:_____________________________________________
Name:
Title:
Signature Page to Amendment No. 2
Wabash National Corporation
Amended and Restated Credit Agreement dated as of April 11, 2002
SUNTRUST BANK,
as a Lender
By:_____________________________________________
Name:
Title:
FIFTH THIRD BANK,
as a Lender
By:_____________________________________________
Name:
Title:
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By:_____________________________________________
Name:
Title:
NATIONAL CITY BANK OF INDIANA,
as a Lender
By:_____________________________________________
Name:
Title:
Signature Page to Amendment No. 2
Wabash National Corporation
Amended and Restated Credit Agreement dated as of April 11, 2002
CONSENT AND REAFFIRMATION
Each of the undersigned hereby acknowledges receipt of a copy
of the foregoing Amendment No. 2 to the Amended and Restated Credit Agreement
dated as of April 11, 2002 (as amended and as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement") by
and among Wabash National Corporation (the "Borrower"), the financial
institutions from time to time party thereto (the "Lenders") and Bank One, NA,
in its individual capacity as a Lender and in its capacity as contractual
representative (the "Agent"), which Amendment No. 2 is dated as of April 11,
2003 (the "Amendment"). Capitalized terms used in this Consent and Reaffirmation
and not defined herein shall have the meanings given to them in the Credit
Agreement. Without in any way establishing a course of dealing by the Agent or
any Lender, each of the undersigned consents to the Amendment and reaffirms the
terms and conditions of the Guaranty, the Security Agreement and any other Loan
Document executed by it and acknowledges and agrees that such agreement and each
and every such Loan Document executed by the undersigned in connection with the
Credit Agreement remains in full force and effect and is hereby reaffirmed,
ratified and confirmed. All references to the Credit Agreement contained in the
above-referenced documents shall be a reference to the Credit Agreement as so
modified by the Amendment and as the same may from time to time hereafter be
amended, modified or restated.
Dated: April 11, 2003
WABASH NATIONAL, L.P.
By: NOAMTC, Inc., its General Partner
By: ___________________________________________
Xxxxxxxxxxx X. Black, Authorized Representative
WABASH NATIONAL FINANCE CORPORATION
By: ___________________________________________
Name:
Title:
APEX TRAILER LEASING & RENTALS, L.P.
By: Wabash National Corporation, its General
Partner
By: ___________________________________________
Xxxxxxxxxxx X. Black, Vice President & Treasurer
Signature Page to Amendment No. 2
Wabash National Corporation
Amended and Restated Credit Agreement dated as of April 11, 2002
CLOUD OAK FLOORING COMPANY, INC.
By: ______________________________________
Xxxxxxxxxxx X. Black, Authorized Representative
CONTINENTAL TRANSIT CORPORATION
By: ___________________________________________
Xxxxxxxxxxx X. Black, Authorized Representative
FTSI DISTRIBUTION COMPANY, L.P.
By: NOAMTC, Inc., its General Partner
By: ___________________________________________
Xxxxxxxxxxx X. Black, Authorized Representative
NATIONAL TRAILER FUNDING, L.L.C.
By: NOAMTC, INC., its Member
By: ___________________________________________
Xxxxxxxxxxx X. Black, Authorized Representative
NOAMTC, INC.
By: ___________________________________________
Xxxxxxxxxxx X. Black, Authorized Representative
WNC CLOUD MERGER SUB, INC.
By: ___________________________________________
Xxxxxxxxxxx X. Black, Authorized Representative
WTSI TECHNOLOGY CORP.
By: ___________________________________________
Xxxxxxxxxxx X. Black, Authorized Representative
Signature Page to Amendment No. 2
Wabash National Corporation
Amended and Restated Credit Agreement dated as of April 11, 2002
WABASH FINANCING LLC
By: ___________________________________________
Xxxxxxxxxxx X. Black, Authorized Representative
WABASH NATIONAL SERVICES, L.P.
By: NOAMTC, Inc., its General Partner
By: ___________________________________________
Xxxxxxxxxxx X. Black, Authorized Representative
WABASH TECHNOLOGY CORP.
By: ___________________________________________
Xxxxxxxxxxx X. Black, Authorized Representative
WNC RECEIVABLES MANAGEMENT CORP.
By:___________________________________________
Xxxxxxxxxxx X. Black, Secretary
Signature Page to Amendment No. 2
Wabash National Corporation
Amended and Restated Credit Agreement dated as of April 11, 2002
AMENDED EXHIBIT F
EXHIBIT F
FORM OF COMPLIANCE CERTIFICATE
To: The Lenders Parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that
certain Amended and Restated Credit Agreement dated as of April 11, 2002 (as
amended, modified, renewed or extended from time to time, the "Agreement") among
Wabash National Corporation (the "Borrower"), the Lenders party thereto and Bank
One, NA (successor by merger to Bank One, Indiana, N.A.), as contractual
representative (the "Administrative Agent") for the Lenders. Unless otherwise
defined herein, capitalized terms used in this Compliance Certificate have the
meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ____________________ of the Borrower
and the [Chief Financial Officer] [Treasurer];
2. I have reviewed the terms of the Agreement and I have made,
or have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrower and its Subsidiaries during the
accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose,
and I have no knowledge of, the existence of any condition or event which
constitutes a Default or Unmatured Default during or at the end of the
accounting period covered by the attached financial statements or as of the date
of this Certificate, except as set forth below; and
4. Schedule I and Schedule II attached hereto set forth
financial data and computations evidencing the Company's compliance with certain
covenants of the Agreement and the Excess Cash Flow during the accounting period
covered by the attached financial statements, all of which data and computations
are true, complete and correct.
Described below are the exceptions, if any, to paragraph 3,
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Borrower has taken, is taking, or
proposes to take with respect to each such condition or event:
-----------------------------------------------------------------
-----------------------------------------------------------------
The foregoing certifications, together with the computations
set forth in Schedule I and Schedule II hereto and the financial statements
delivered with this Certificate in support hereof, are made and delivered this
_____ day of __________, ____.
-------------------------------------------
[Insert Name of Officer]
Wabash National Corporation
Quarterly Compliance Certificate Worksheet
COMPLIANCE CERTIFICATE
QUARTERLY SCHEDULE OF COMPLIANCE AS OF _________, 2003
A. INTENTIONALLY OMITTED
B. INTENTIONALLY OMITTED
C. MINIMUM CONSOLIDATED EQUITY (SECTION 6.4(B))
1. Actual Amount:
a. Consolidated Equity $ -
b. Minimum Required Amount $ -
D. MAXIMUM LEVERAGE VALUATION RATIO (SECTION 6.4(C))
1. Actual Amount:
a. Term Debt (Notes & Bank Debt) $ -
b. Revolver (Super Revolver) $ -
-----------
c. Total Debt (a+b) $ -
d. Cash and Cash Equivalents $ -
e. Net Inventory $ -
f. Net Prepaid and Other Expenses $ -
g. Net PP&E $ -
-----------
h. Total Assets (d+e+f+g) $ -
i. Leverage Ratio (c/h) x
-----
2. Minimum Required Amount x
-----
E. MINIMUM CONSOLIDATED CUMULATIVE (SINCE 1/1/2003) EBITDA (SECTION 6.4(D))
1. Actual Amount:
a. Consolidated Operating Income $ -
b. Foreign and Domestic Taxes Deducted in Operating Income $ -
c. Interest Expense Deducted in Operating Income $ -
d. Eligible Asset Disposition Charges $ -
e. Eligible Asset Impairment Charges $ -
f. Eligible Miscellaneous Non-Cash Charges $ -
g. Eligible Restructuring Charges $ -
h. Depreciation Expense Deducted in Operating Income $ -
i. Amortization Expense Deducted in Operating Income $ -
j. Interest Income Included in Operating Income $ -
k. Total Tax Benefit Included in Operating Income $ -
l. Consolidated EBITDA (a+b+c+d+e+f+g+h+i-j-k) $ -
2. Minimum Required Amount $ -
F. INTENTIONALLY OMITTED
G. MAXIMUM CAPITAL EXPENDITURES (SECTION 6.4(F))
1. Actual Amount:
a. Capital Expenditures (Year-to-Date) $ -
2. Maximum Annual Allowed Amount $ 4,000,000
H. MAXIMUM FINANCE CONTRACTS (SECTION 6.4(G))
1. Actual Amount:
a. Finance Contracts (Year-To-Date) $ -
2. Maximum Annual Allowed Amount $ 5,000,000
A. MAXIMUM OTHER UNSECURED INDEBTEDNESS (Section 6.3(A))
1. Actual Amount: $_____________
2. Maximum Permitted Amount: $3,000,000
B. SALES OF ASSETS (Section 6.3(B)(v))
1. Actual Amount:
a. Total amount of sales of assets in current fiscal
year to date (See Schedule II for detail) $_____________
2. Maximum Permitted Amount: $5,000,000
C. INTENTIONALLY OMITTED
D. INVESTMENTS (Section 6.3(D)(vii))
For each new Investment pursuant to Section 6.3(D)(vii) of the
Agreement during the most recent fiscal quarter covered by this
Certificate, complete the following:
1. Date and brief description of nature of new Investment:
_______________________________________________________
_______________________________________________________
2. Actual Amount:
a. Amount of new Investment $_____________
b. Amount of existing Investments under
Section 6.3(D)(vii) +_____________
c. Total Investments under Section 6.3(D)(vii) =$_____________
3. Maximum Permitted Amount: $5,000,000
E. LEASES (Section 6.3(N))
1. Actual Amount of Leases: $__________
2. Maximum Permitted Amount: $5,000,000
SCHEDULE II TO COMPLIANCE CERTIFICATE
Schedule of Compliance as of __________, ____
(Dollars in Thousands)
A. Sales of Assets
[List separate sales and amounts] $_____________
______________
______________
______________
______________
Total $_____________
