FIRST AMENDMENT TO FORBEARANCE
AGREEMENT AND FOURTH
AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT
FIRST AMENDMENT TO
FORBEARANCE AGREEMENT AND FOURTH AMENDMENT TO SECOND AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT (this “ Amendment
”) dated as of May 28, 2009, by and among Wabash
National Corporation, a Delaware corporation, Wabash National,
L.P., a Delaware limited partnership, Wabash Wood Products, Inc.
(f/k/a WNC Cloud Merger Sub, Inc.), an Arkansas corporation, FTSI
Distribution Company, L.P., a Delaware limited partnership and
Transcraft Corporation, a Delaware corporation (collectively,
“ Borrowers ”), Continental Transit Corporation,
an Indiana corporation, Wabash National Services, L.P., a Delaware
limited partnership, 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, Cloud Oak Flooring Company, Inc., an
Arkansas corporation, Wabash National Manufacturing, L.P. (f/k/a
Wabash National Lease Receivables, L.P.), a Delaware limited
partnership (collectively, “ Guarantors ”), the
Lenders party hereto, and Bank of America, N.A., a Rhode Island
corporation (“ Agent ”), as Agent for the
Lenders.
WHEREAS, Agent,
Lenders and Borrowers have entered into certain financing
arrangements pursuant to the Second Amended and Restated Loan and
Security Agreement, dated as of March 6, 2007, by and among
Agent, the Lenders party thereto and Borrowers (as the same may
have heretofore been or may hereafter be further amended, modified,
supplemented, extended, renewed, restated or replaced (the “
Loan Agreement ”));
WHEREAS,
Borrowers, Agent and Lenders have entered into that certain
Forbearance Agreement and Third Amendment to Second Amended and
Restated Loan and Security Agreement dated April 28, 2009, by
and among Borrowers, Guarantors, the Lenders party thereto and
Agent (the “ Forbearance Agreement ”);
and
WHEREAS, the
Borrowers, Agent and Lenders have agreed to amend the Loan
Agreement and the Forbearance Agreement in certain respects, and
the Agent and Lenders are willing to do so on the terms and
conditions specified herein.
THEREFORE, in
consideration of the foregoing, and the respective agreements,
warranties and covenants contained herein, the parties hereto agree
as follows:
All capitalized
terms used herein (including the recitals hereto) shall have the
respective meanings ascribed thereto in the Loan Agreement unless
otherwise defined herein.
SECTION 2.
ACKNOWLEDGMENTS
2.1.
Acknowledgment of Obligations. Each Borrower hereby
acknowledges, confirms and agrees that as of the close of business
on May 28, 2009, Borrowers are, jointly and severally,
indebted to Agent and Lenders in respect of the Revolving Credit
Loan in the principal amount of $57,013,659.96. All Loans, together
with interest accrued and accruing thereon, and all fees, costs,
expenses and other charges now or hereafter payable by Borrowers to
Agent and Lenders, are unconditionally owing by Borrowers to Agent
and Lenders, without offset, defense or counterclaim of any kind,
nature or description whatsoever.
2.2.
Acknowledgment of Security Interests. Each Borrower hereby
acknowledges, confirms and agrees that Agent, for the benefit of
itself and Lenders, has and shall continue to have valid,
enforceable and perfected first-priority liens upon and security
interests in all of the real and personal property of each Borrower
and each Guarantor heretofore granted to Agent pursuant to the Loan
Agreement and the Other Agreements or otherwise granted to or held
by Agent, subject only to Permitted Liens.
2.3.
Binding Effect of Documents. Each Borrower and each
Guarantor hereby acknowledges, confirms and agrees that:
(a) each of the Loan Agreement and the Other Agreements to
which it is a party has been duly executed and delivered to Agent
by such Borrower and such Guarantor, and each is and shall remain
in full force and effect as of the date hereof except as modified
pursuant hereto, (b) the agreements and obligations of such
Borrower or Guarantor contained in such documents and in this
Amendment constitute the legal, valid and binding obligations and
liabilities of such Borrower or Guarantor, enforceable against it
in accordance with their respective terms, and such Borrower or
Guarantor has no valid defense to the enforcement of such
obligations and liabilities, and (c) Agent and Lenders are and
shall be entitled to the rights, remedies and benefits provided for
under the Loan Agreement and the Other Agreements and applicable
law.
SECTION 3.
AMENDMENT TO FORBEARANCE AGREEMENT
3.1.
Section 3.2(a) of the Forbearance Agreement is hereby amended
by amending and restating clause (i) of such Section in its
entirety as follows: “(i) July 31, 2009
or”.
SECTION 4.
AMENDMENTS TO LOAN AGREEMENT
4.1.
The following new defined terms are hereby added to Appendix A
of the Loan Agreement in its respective alphabetical order
therein:
“
Amendment No. 4 Date ” — May 28,
2009.
“ Trailer
Storage Lease ” — a lease agreement between a
Guarantor, as lessor, and an lessee identified in writing to Agent
and Lenders prior, to store no more than 150 trailers owned by such
lessee on the real Property owned or leased by such
Borrower.
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4.2.
The definition of “Applicable Margin” in
Appendix A of the Loan Agreement is hereby amended and
restated in its entirety as follows:
“
Applicable Margin ” — from the Amendment
No. 4 Date, the percentages set forth below with respect to
the Base Rate Portion, the LIBOR Portion and the Unused Line
Fee.
4.3.
The definition of “Borrowing Base” in Appendix A
of the Loan Agreement is hereby amended by amending and restating
clause (ii) of such definition in its entirety as
follows:
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(ii)
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an
amount equal to the sum of
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(a)
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85%
of the net amount of Eligible Accounts outstanding at such date;
plus
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(b)
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the
least of (i) 85% of the net orderly liquidation percentage of
Eligible Inventory at such date and (ii) the sum of
(A) 85% of the net orderly liquidation value of Eligible
Trailer Inventory at such date, plus (B) 75% of the
value of Eligible Bill and Hold Inventory at such date, plus
(C) 70% of the value of Eligible Inventory consisting of raw
materials or parts (including Bill and Hold Inventory not
constituting Eligible Bill and Hold Inventory) at such date,
plus (D) 50% of the value of Eligible Inventory
consisting of work-in-process at such date; plus
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(c)
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(i) at all times prior to the
Fixed Asset Election Date, the Fixed Asset Sublimit or (ii) at
all times on and after the Fixed Asset Election Date, the least of
(A) the Maximum Fixed Asset Amount or (B) the sum of
(x) 85% of the net orderly liquidation value of Eligible
Equipment at such date and (y) 65% of the fair market value of
Eligible Real Property at such date; minus
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(d)
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(i)
$17,500,000, at all times on or after the Amendment No. 4 Date
through and including July 31, 2009 or (ii) $22,500,000, at
all times after July 31, 2009.
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4.4.
The definition of “Eligible Account” in Appendix A
of the Loan Agreement is hereby amended by amending and restating
clause (iv) of such definition in its entirety as
follows:
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(iv) the total
unpaid Accounts of the Account Debtor exceed (a) 30% of the
net amount of all Eligible Accounts in the case of Schneider
National, Inc. and its Affiliates, (b) from the Amendment
No. 4 Date through and until July 31, 2009, 50% of the
net amount of all Eligible Accounts in the case of Old Dominion
Freight Line, Inc. and FedEx Freight System, Inc., (c) 30% of
the net amount of all Eligible Accounts in the case of any Account
Debtor rated 5A2 or better by Dun & Bradstreet, and the
Affiliates of such Account Debtor or (d) 20% of the net amount
of all Eligible Accounts in the case of any other Account Debtor,
but in each case only to the extent of such excess; or
4.5.
Section 8.1.3 of the Loan Agreement is hereby amended by:
(i) amending clause (v) thereof by deleting the word
“and” after the semicolon, (ii) amending clause
(vi) thereof by deleting the period and adding “;
and” at the end of the clause, and (iii) adding at the
end thereof a new clause (vii) to read as follows:
(vii) On the third
Business Day of each calendar week from and after the Amendment
No. 4 Date, Borrowers shall deliver to Agent, in form
reasonably acceptable to Agent, a report (1) setting forth a
13-week cash flow forecast for Wabash and its Subsidiaries, on a
Consolidated and consolidating basis, along with a comparison of
the actual and projected cash flow statements for the immediately
preceding calendar week, with appropriate supporting details and
such other supporting materials as Agent shall reasonably request
and (2) identifying the reasons for any significant
variations.
4.6.
Section 8.2.9 of the Loan Agreement is hereby amended by
inserting the following proviso at the end of clause
(v) thereof:
; provided that
any Guarantor may enter into the Trailer Storage Lease on or prior
to the termination of the Forbearance Period (as defined in that
certain Forbearance Agreement and Third Amendment to Second Amended
and Restated Loan and Security Agreement dated April 28, 2009,
by and among Borrowers, Guarantors, the Lenders party thereto and
Agent (as amended, restated supplemented or otherwise modified from
time to time, the “ Forbearance Agreement ”))
notwithstanding the existence of the Existing Defaults (as defined
in the Forbearance Agreement).
4.7.
Exhibit 7.1.16 to the Loan Agreement is hereby amended and
restated in its entirety in the form that is attached
hereto.
4.8.
Exhibit 7.1.20 to the Loan Agreement is hereby amended and
restated in its entirety in the form that is attached
hereto.
4.9.
Exhibit 8.1.4 to the Loan Agreement is hereby amended and
restated in its entirety in the form that is attached
hereto.
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5.1.
Strategic Report . On or before June 15, 2009,
Borrowers shall deliver to Agent a written report detailing the
strategic business alternatives, in form and substance satisfactory
to Agent.
5.2.
Default Interest . Agent and Lenders hereby agree that
solely during the Forbearance Period and subject to the terms and
conditions of this Amendment, Lenders shall not institute the
default rate of interest set forth in Section 2.1.2 of the
Loan Agreement.
SECTION 6.
REPRESENTATIONS AND WARRANTIES
Each Borrower
hereby represents, warrants and covenants as follows:
6.1.
Representations in the Loan Agreement, Other Agreements.
Each of the representations and warranties made by or on behalf of
each Borrower and each Guarantor to Agent and Lenders in the Loan
Agreement or any of the Other Agreements was true and correct when
made, and is, except for the Existing Defaults (as defined in the
Forbearance Agreement), true and correct on and as of the date of
this Amendment with the same full force and effect as if each of
such representations and warranties had been made by such Borrower
or such Guarantor on the date hereof and in this Amendment, except
for such representations and warranties limited by their terms to a
specific earlier date, in which case such representations and
warranties are true and correct as of such earlier date.
6.2.
Binding Effect of Documents. This Amendment has been duly
authorized, executed and delivered to Agent and Lenders by each
Borrower and the Consent and Reaffirmation has been duly
authorized, executed and delivered to Agent and Lenders by each
Guarantor and each is enforceable in accordance with its terms and
is in full force and effect.
6.3.
No Conflict. The execution, delivery and performance of this
Amendment by each Borrower will not violate any requirement of law
or contractual obligation of any Borrower and will not result in,
or require, the creation or imposition of any Lien on any of its
properties or revenues.
SECTION 7.
CONDITIONS TO EFFECTIVENESS OF CERTAIN PROVISIONS OF THIS
AM
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