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WABASH NATIONAL CORPORATION
AND
THE SUBSIDIARIES OF WABASH NATIONAL CORPORATION
IDENTIFIED ON THE SIGNATURE PAGES HERETO,
AS BORROWERS
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AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
Dated as of December 30, 2004
$125,000,000
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FLEET CAPITAL CORPORATION,
INDIVIDUALLY AND AS AGENT FOR ANY LENDER WHICH IS
OR BECOMES A PARTY HERETO,
NATIONAL CITY BUSINESS CREDIT, INC.,
INDIVIDUALLY AND AS SYNDICATION AGENT,
GENERAL ELECTRIC CAPITAL CORPORATION,
INDIVIDUALLY AND AS A DOCUMENTATION AGENT,
WACHOVIA BANK, NATIONAL ASSOCIATION,
INDIVIDUALLY AND AS A DOCUMENTATION AGENT, AND
THE ADDITIONAL LENDERS NOW AND FROM
TIME TO TIME PARTY HERETO
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TABLE OF CONTENTS
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SECTION 1. CREDIT
FACILITY.....................................................................
1
1.1.
Loans.............................................................................
1
1.2. Letters of Credit; LC
Guaranties.................................................. 5
1.3. Reallocation of Revolving Loan
Commitments........................................ 7
1.4. Borrowing
Agent...................................................................
7
1.5. Alternate
Currencies..............................................................
7
1.6. Dollars; Conversion to
Dollars.................................................... 8
1.7. Judgment Currency; Contractual
Currency........................................... 8
1.8. Common
Enterprise.................................................................
9
1.9. Effect of Amendment and
Restatement............................................... 9
SECTION 2. INTEREST, FEES AND
CHARGES..........................................................
10
2.1.
Interest..........................................................................
10
2.2. Computation of Interest and
Fees.................................................. 11
2.3. Fee
Letter........................................................................
11
2.4. Letter of Credit and LC Guaranty
Fees............................................. 11
2.5. Unused Line
Fee...................................................................
12
2.6. Intentionally
omitted.............................................................
12
2.7. Audit
Fees........................................................................
12
2.8. Reimbursement of
Expenses.........................................................
12
2.9. Bank
Charges......................................................................
13
2.10. Collateral Protection Expenses;
Appraisals........................................ 13
2.11. Payment of
Charges................................................................
14
2.12. No
Deductions.....................................................................
14
2.13. Joint and Several
Obligations.....................................................
14
2.14. Subrogation and
Contribution......................................................
17
SECTION 3. LOAN
ADMINISTRATION.................................................................
18
3.1. Manner of Borrowing Revolving Credit Loans/LIBOR
Option........................... 18
3.2.
Payments..........................................................................
21
3.3. Mandatory and Optional
Prepayments................................................ 23
3.4. Application of Payments and
Collections........................................... 25
3.5. All Loans to Constitute One
Obligation............................................ 26
3.6. Loan
Account......................................................................
26
3.7. Statements of
Account.............................................................
26
3.8. Increased
Costs...................................................................
26
3.9. Basis for Determining Interest Rate
Inadequate.................................... 27
3.10. Sharing of Payments,
Etc..........................................................
28
SECTION 4. TERM AND
TERMINATION................................................................
28
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4.1. Term of
Agreement.................................................................
28
4.2.
Termination.......................................................................
29
SECTION 5. SECURITY
INTERESTS..................................................................
30
5.1. Security Interest in
Collateral...................................................
30
5.2. Other
Collateral..................................................................
31
5.3. Lien Perfection; Further
Assurances............................................... 32
5.4. Lien on
Realty....................................................................
32
SECTION 6. COLLATERAL
ADMINISTRATION...........................................................
33
6.1.
General...........................................................................
33
6.2. Administration of
Accounts........................................................
34
6.3. Administration of
Inventory.......................................................
36
6.4. Administration of
Equipment.......................................................
36
6.5. Payment of
Charges................................................................
37
SECTION 7. REPRESENTATIONS AND
WARRANTIES......................................................
37
7.1. General Representations and
Warranties............................................ 37
7.2. Continuous Nature of Representations and
Warranties............................... 46
7.3. Survival of Representations and
Warranties........................................ 47
SECTION 8. COVENANTS AND CONTINUING
AGREEMENTS.............................................. 47
8.1. Affirmative
Covenants.............................................................
47
8.2. Negative
Covenants................................................................
52
8.3. Specific Financial
Covenants......................................................
60
SECTION 9. CONDITIONS
PRECEDENT................................................................
60
9.1. Conditions Precedent to Initial Loans and Other Initial
Credit Accommodations..... 60
9.2. Conditions Precedent to all Loans and other Credit
Accommodations................. 61
SECTION 10. EVENTS OF DEFAULT; RIGHTS AND REMEDIES ON
DEFAULT.................................. 61
10.1. Events of
Default.................................................................
61
10.2. Acceleration of the
Obligations...................................................
64
10.3. Other
Remedies....................................................................
64
10.4. Set Off and Sharing of
Payments................................................... 66
10.5. Remedies Cumulative; No
Waiver.................................................... 67
SECTION 11. THE
AGENT..........................................................................
67
11.1. Authorization and
Action..........................................................
67
11.2. Agent's Reliance,
Etc.............................................................
68
11.3. Fleet and
Affiliates..............................................................
69
11.4. Lender Credit
Decision............................................................
69
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11.5.
Indemnification...................................................................
69
11.6. Rights and Remedies to be Exercised by Agent
Only................................. 70
11.7. Agency Provisions Relating to
Collateral.......................................... 70
11.8. Agent's Right to Purchase
Commitments............................................. 71
11.9. Right of Sale, Assignment,
Participations......................................... 71
11.10.
Amendment.........................................................................
73
11.11. Resignation of Agent; Appointment of
Successor.................................... 74
11.12. Audit and Examination Reports; Disclaimer by
Lenders.............................. 74
11.13. Syndication Agent; Documentation
Agents........................................... 75
11.14. Quebec
Security...................................................................
75
SECTION 12.
MISCELLANEOUS......................................................................
76
12.1. Power of
Attorney.................................................................
76
12.2.
Indemnity.........................................................................
77
12.3. Sale of
Interest..................................................................
78
12.4.
Severability......................................................................
78
12.5. Successors and
Assigns............................................................
78
12.6. Cumulative Effect; Conflict of
Terms.............................................. 78
12.7. Execution in
Counterparts.........................................................
79
12.8.
Notice............................................................................
79
12.9.
Consent...........................................................................
80
12.10. Credit
Inquiries..................................................................
80
12.11. Time of
Essence...................................................................
80
12.12. Entire
Agreement..................................................................
80
12.13.
Interpretation....................................................................
80
12.14.
Confidentiality...................................................................
81
12.15. GOVERNING LAW; CONSENT TO
FORUM................................................... 81
12.16. WAIVERS BY
BORROWERS..............................................................
82
12.17.
Advertisement.....................................................................
83
12.18. English
Language..................................................................
83
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AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT is made as
of
this 30th day of December, 2004, by and among FLEET CAPITAL
CORPORATION
("Fleet"), a Rhode Island corporation with an office at One
South Wacker Drive,
Suite 1400, Chicago, Illinois 60606, individually as a Lender,
as Agent
("Agent") for itself and any other financial institution which
is or becomes a
party hereto (each such financial institution, including Fleet,
is referred to
hereinafter individually as a "Lender" and collectively as the
"Lenders"), the
LENDERS, NATIONAL CITY BUSINESS CREDIT, INC., individually as a
Lender and as
Syndication Agent for Lenders, GENERAL ELECTRIC CAPITAL
CORPORATION,
individually as a Lender and as a Documentation Agent for
Lenders, WACHOVIA
BANK, NATIONAL ASSOCIATION, individually as a Lender and as a
Documentation
Agent for Lenders, and each of WABASH NATIONAL CORPORATION, a
Delaware
corporation with its chief executive office and principal place
of business at
1000 Sagamore Parkway South, Lafayette, Indiana 47905 ("Wabash")
and EACH
SUBSIDIARY OF WABASH THAT IS IDENTIFIED ON THE SIGNATURE PAGES
HERETO AS A
BORROWER; Wabash and each such Subsidiary are hereafter referred
to
collectively, as "Borrowers" and individually, as "Borrower".
Capitalized terms
used in this Agreement have the meanings assigned to them in
Appendix A, General
Definitions. Accounting terms not otherwise specifically defined
herein shall be
construed in accordance with GAAP consistently applied. This
Agreement amends,
supercedes, restates and replaces in its entirety that certain
Loan and Security
Agreement dated as of September 23, 2003 by and among Agent,
Syndication Agent,
Documentation Agents, Lenders and Borrowers (the "Original Loan
Agreement").
SECTION 1. CREDIT FACILITY
Subject to the terms and conditions of, and in reliance upon
the
representations and warranties made in, this Agreement and the
other Loan
Documents, Lenders agree to make a Total Credit Facility of up
to $125,000,000
available to Borrowers upon a Borrower's request therefor, as
follows:
1.1. Loans.
1.1.1. Revolving Credit Loans. Each Lender agrees, severally and
not
jointly, for so long as no Default or Event of Default exists,
to make
Revolving Credit Loans to Borrowers from time to time during the
period
from the date hereof to but not including the last day of the
Term, as
requested by Borrowers in the manner set forth in Section 1.4
and
subsection 3.1.1 hereof, up to a maximum principal amount at any
time
outstanding equal to the lesser of (i) such Lender's Revolving
Loan
Commitment minus the product of such Lender's Revolving Loan
Percentage
and the sum of the Dollar Equivalent of the LC Amount and LC
Obligations
minus the product of such Lender's Revolving Loan Percentage and
reserves,
if any and (ii) the product of (a) such Lender's Revolving Loan
Percentage
and (b) an amount equal to
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the sum of the Borrowing Base at such time minus the sum of the
Dollar
Equivalent of the LC Amount and LC Obligations minus reserves,
if any.
Agent shall have the right to establish reserves in such
amounts, and with
respect to such matters as Agent shall deem necessary or
appropriate in
its reasonable credit judgment, against the amount of Revolving
Credit
Loans which Borrowers may otherwise request under this
subsection 1.1.1
including without limitation with respect to (i) price
adjustments,
damages, unearned discounts, returned products or other matters
for which
credit memoranda are issued in the ordinary course of a
Borrower's
business; (ii) potential dilution related to Accounts; (iii)
shrinkage,
spoilage and obsolescence of Inventory; (iv) slow moving
Inventory; (v)
other sums chargeable against a Borrower's Loan Account as
Revolving
Credit Loans under any section of this Agreement; (vi) amounts
owing by a
Borrower to any Person to the extent secured by a Lien on, or
trust over,
any Property of such Borrower, including without limitation
Prior Claims;
(vii) amounts owing by a Borrower in connection with Product
Obligations
and relating to currency exchange rate risk; and (viii) such
other
specific events, conditions or contingencies as to which Agent,
in its
reasonable credit judgment as is customary for asset based
facilities of
this type, determines reserves should be established from time
to time
hereunder. The reserves in place as of the Closing Date shall be
equal to
$__________ in the aggregate. Notwithstanding the foregoing,
Agent shall
not establish any reserves in respect of any matters relating to
any items
of Collateral that have been taken into account in determining
Eligible
Inventory, Eligible Trailer Inventory, Eligible Bill and Hold
Inventory,
Eligible Accounts. Eligible Equipment or Eligible Real Property,
as
applicable. The Revolving Credit Loans shall be repayable in
accordance
with the terms of the Revolving Notes and as set forth in
subsection
3.2.1, and shall be secured by, among other things, all of the
Collateral.
1.1.2. Overadvances. Insofar as a Borrower may request and Agent
or
Majority Lenders (as provided below) may be willing in their
sole and
absolute discretion to make Revolving Credit Loans to such
Borrower at a
time when the unpaid balance of Revolving Credit Loans plus the
sum of the
Dollar Equivalent of the LC Amount plus the Dollar Equivalent of
the
amount of LC Obligations that have not been reimbursed by
Borrowers or
funded with a Revolving Credit Loan, plus reserves, exceeds, or
would
exceed with the making of any such Revolving Credit Loan, the
Borrowing
Base (such Loan or Loans being herein referred to individually
as an
"Overadvance" and collectively, as "Overadvances"), Agent shall
enter such
Overadvances as debits in the Loan Account. All Overadvances
shall be
repaid on demand, shall be secured by the Collateral and shall
bear
interest as provided in this Agreement for Revolving Credit
Loans
generally. Any Overadvance made pursuant to the terms hereof
shall be made
by all Lenders ratably in accordance with their respective
Revolving Loan
Percentages. Overadvances in the aggregate amount of $5,000,000
or less
may, unless a Default or Event of Default has occurred and is
continuing
(other than a Default or an Event of Default caused by the
existence or
making of such Overadvance), be made in the sole and absolute
discretion
of Agent. Overadvances in an aggregate amount of more than
$5,000,000 but
less than
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$7,500,000 may, unless a Default or an Event of Default has
occurred and
is continuing (other than a Default or Event of Default caused
by the
existence or making of such Overadvance), be made in the sole
and absolute
discretion of the Majority Lenders. Overadvances in an aggregate
amount of
$7,500,000 or more and Overadvances to be made after the
occurrence and
during the continuation of a Default or an Event of Default
(other than a
Default or Event of Default caused by the existence or making of
such
Overadvance) shall require the consent of all Lenders. The
foregoing
notwithstanding, in no event, unless otherwise consented to by
all
Lenders, (w) shall any Overadvances be outstanding for more than
thirty
(30) consecutive days, (x) after all outstanding Overadvances
have been
repaid, shall Agent or Lenders make any additional Overadvances
unless
sixty (60) days or more have expired since the last date on
which any
Overadvances were outstanding, (y) shall Overadvances be
outstanding for
more than sixty (60) days within any one hundred eighty day
(180) period
or (z) shall Agent make Revolving Credit Loans on behalf of
Lenders under
this subsection 1.1.2 to the extent such Revolving Credit Loans
would
cause a Lender's share of the Revolving Credit Loans to exceed
such
Lender's Revolving Loan Commitment minus such Lender's Revolving
Loan
Percentage of the sum of the Dollar Equivalent of the LC Amount
and the LC
Obligations.
1.1.3. Use of Proceeds. The Revolving Credit Loans shall be
used
solely for (i) the payment of fees and expenses associated with
the
transactions contemplated hereby, (ii) Borrowers' general
operating
capital needs (including Capital Expenditures permitted
hereunder) in a
manner consistent with the provisions of this Agreement and all
applicable
laws, (iii) the funding of Permitted Acquisitions, (iv)
prepayment of the
Breadner Debt as set forth in subsection 8.2.6(ii) and (v) other
general
corporate purposes.
1.1.4. Swingline Loans. In order to reduce the frequency of
transfers of funds from Lenders to Agent for making Revolving
Credit Loans
and for so long as no Default or Event of Default exists, Agent
shall be
permitted (but not required) to make Revolving Credit Loans to
Borrowers
upon request by Borrowers (such Revolving Credit Loans to be
designated as
"Swingline Loans") provided that the aggregate amount of
Swingline Loans
outstanding at any time will not (i) exceed $10,000,000; (ii)
when added
to the principal amount of Agent's other Revolving Credit Loans
then
outstanding plus Agent's Revolving Loan Percentage of the sum of
the
Dollar Equivalent of the LC Amount and the LC Obligations,
exceed Agent's
Revolving Credit Commitment; or (iii) when added to the
principal amount
of all other Revolving Credit Loans then outstanding plus the
sum of the
Dollar Equivalent of the LC Amount and the LC Obligations plus
reserves,
exceed the Borrowing Base. Within the foregoing limits, each
Borrower may
borrow, repay and reborrow Swingline Loans. All Swingline Loans
shall be
treated as Revolving Credit Loans for purposes of this
Agreement, except
that (a) all Swingline Loans shall be Base Rate Portions and
(b)
notwithstanding anything herein to the contrary (other than as
set forth
in the next succeeding sentence), all principal and interest
paid with
respect to
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Swingline Loans shall be for the sole account of Agent in its
capacity as
the lender of Swingline Loans. Notwithstanding the foregoing,
not more
than 2 Business Days after (1) Lenders receive notice from Agent
that a
Swingline Loan has been advanced in respect of a drawing under a
Letter of
Credit or LC Guaranty or (2) in any other circumstance, demand
is made by
Agent during the continuance of an Event of Default, each Lender
shall
irrevocably and unconditionally purchase and receive from Agent,
without
recourse or warranty from Agent, an undivided interest and
participation
in each Swingline Loan to the extent of such Lender's Revolving
Loan
Percentage thereof, by paying to Agent, in same day funds, an
amount equal
to such Lender's Revolving Loan Percentage of such Swingline
Loan.
Swingline Loans will be settled between the Agent and the
Lenders in the
manner set forth in subsection 3.1.3. For purposes of this
Agreement,
Swingline Loans shall include any "Swingline Loans" made under
the
Original Loan Agreement and outstanding on the Closing Date.
1.1.5. Agent Loans. Upon the occurrence and during the
continuance
of an Event of Default, Agent, in its sole discretion, may make
Revolving
Credit Loans on behalf of Lenders, in an aggregate amount not to
exceed
$5,000,000, if Agent, in its reasonable business judgment, deems
that such
Revolving Credit Loans are necessary or desirable (i) to protect
all or
any portion of the Collateral, (ii) to enhance the likelihood,
or maximize
the amount of, repayment of the Loans and the other Obligations,
or (iii)
to pay any other amount chargeable to any Borrower pursuant to
this
Agreement, including without limitation costs, fees and expenses
as
described in Sections 2.8 and 2.9 (hereinafter, "Agent Loans");
provided,
that in no event shall (a) the maximum principal amount of the
Revolving
Credit Loans exceed the aggregate Revolving Loan Commitments and
(b)
Majority Lenders may at any time revoke Agent's authorization to
make
Agent Loans. Any such revocation must be in writing and shall
become
effective prospectively upon Agent's receipt thereof. Each
Lender shall be
obligated to advance its Revolving Loan Percentage of each Agent
Loan. If
Agent Loans are made pursuant to the preceding sentence, then
(a) the
Borrowing Base shall be deemed increased by the amount of such
permitted
Agent Loans, but only for so long as Agent allows such Agent
Loans to be
outstanding, and (b) all Lenders that have committed to make
Revolving
Credit Loans shall be bound to make, or permit to remain
outstanding, such
Agent Loans based upon their Revolving Loan Percentages in
accordance with
the terms of this Agreement.
1.1.6. Request for Increase of Revolving Loan Commitments.
Lenders
agree that Borrowers may, so long as no Default or Event of
Default has
occurred and is continuing, deliver a written notice to Agent
and each
Lender (an "Increase Notice") requesting an increase in the
Revolving Loan
Commitments in a minimum amount of $25,000,000 (a "Requested
Revolver
Increase") with an aggregate limit for all Requested Revolver
Increases of
$75,000,000. Three such Increase Notices may be delivered during
the Term
and each Increase Notice shall be accompanied with a
Compliance
Certificate confirming that the Fixed Charge Coverage Ratio for
the 12
month period ending on the last day of the calendar month that
ended most
recently
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prior to the delivery of such Increase Notice, is greater than
1.10 to
1.0. If Borrowers deliver an Increase Notice, each Lender shall
have the
option to participate in the Requested Revolver Increase upon
terms and in
amounts determined by Agent by delivering a written notice to
Agent and
Borrowers within ten Business Days of such Lender's receipt of
the
Increase Notice (it being agreed and understood that such Lender
shall be
deemed to have elected not to participate in the Requested
Revolver
Increase if it does not respond to the Increase Notice within
ten Business
Days of its receipt thereof). If one or more Lenders with
Revolving Loan
Commitments elect not to participate in the Requested Revolver
Increase,
or if such participation is for less than the full amount of the
Requested
Revolver Increase, then Agent may, at its option and in its
separate
capacities as a Lender, elect to participate in such remaining
portion of
the Requested Revolver Increase. If there is less than full
participation
by existing Lenders with Revolving Loan Commitments in the
Requested
Revolver Increase after the foregoing procedures, then one or
more new
Lenders acceptable to Agent and Borrowers may be added as
parties to this
Agreement for purposes of participating in such remaining
portion. After
giving effect to the procedures described in this paragraph,
each Lender
participating in the Requested Revolver Increase shall have its
Revolving
Loan Commitment increase to the extent of its participation as
determined
by Agent and, upon the request of such Lender, Borrowers will
execute a
replacement Revolving Note for such Lender reflecting the
increased amount
of its Revolving Loan Commitment. Borrowers agree to execute
such
amendments and supplements to the Loan Documents as Agent
reasonably deems
necessary in connection with a Requested Revolver Increase and
further
agree to pay to Lenders a commitment fee and to Agent an
arrangement fee
to be determined by Agent and Borrowers in connection with the
Requested
Revolver Increase.
1.2. Letters of Credit; LC Guaranties.
1.2.1. Issuance of Letters of Credit and LC Guarantees.
Agent
agrees, for so long as no Default or Event of Default exists and
if
requested by a Borrower, to (i) issue its, or cause to be issued
by Bank
or another Affiliate of Agent, on the date requested by such
Borrower,
Letters of Credit (sight drafts only) for the account of a
Borrower or
(ii) execute LC Guaranties by which Agent, Bank, or another
Affiliate of
Agent, on the date requested by a Borrower, shall guaranty the
payment or
performance by a Borrower of its reimbursement obligations with
respect to
letters of credit issued for a Borrower's account by other
Persons;
provided, that (a) the Dollar Equivalent of the LC Amount shall
not exceed
$15,000,000 at any time and (b) at no time will a Letter of
Credit or LC
Guaranty be issued if doing so could cause a violation of
subsection
1.1.1. Prior to the Closing Date, Bank issued certain letters of
credit
for the account of one or more Borrowers under the Original
Loan
Agreement, which Letters of Credit are still outstanding on the
Closing
Date and are more particularly described on Exhibit 1.2.1 hereto
(the
"Existing Letters of Credit"). Agent, Lenders and Borrowers
hereby agree
that the Existing Letters of Credit shall be deemed to be
Letters of
Credit issued under this Agreement on the Closing Date.
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No Letter of Credit or LC Guaranty may have an expiration date
(a) after
the last day of the Term, (b) in the case of standby Letters of
Credit or
LC Guaranties supporting standby letters of credit, more than 1
year after
the issuance date thereof or (c) in the case of documentary
Letters of
Credit or LC Guaranties supporting documentary letters of
credit, more
than 180 days after the issuance date thereof.
1.2.2. Lender Participation. Immediately upon the issuance of
a
Letter of Credit or an LC Guaranty under this Agreement, each
Lender shall
be deemed to have irrevocably and unconditionally purchased and
received
from Agent, without recourse or warranty, an undivided interest
and
participation therein equal to the sum of the Dollar Equivalent
of the
applicable LC Amount and the applicable LC Obligations
multiplied by such
Lender's Revolving Loan Percentage. Agent will notify each
Lender on a
weekly basis, or if determined by Agent, a more frequent basis,
upon
presentation to it of a draw under a Letter of Credit or a
demand for
payment under a LC Guaranty. On a weekly basis, or more
frequently if
requested by Agent, each Lender shall make payment to Agent in
immediately
available funds in Dollars, of an amount equal to such Lender's
pro rata
share (based on such Lender's Revolving Loan Percentage) of the
amount of
any payment made by Agent in respect to any Letter of Credit or
LC
Guaranty. The obligation of each Lender to reimburse Agent under
this
subsection 1.2.2 shall be unconditional, continuing, irrevocable
and
absolute, except in respect of indemnity claims arising out of
Agent's
willful misconduct or gross negligence. In the event that any
Lender fails
to make payment to Agent of any amount due under this subsection
1.2.2,
Agent shall be entitled to receive, retain and apply against
such
obligation the principal and interest otherwise payable to such
Lender
hereunder until Agent receives such payment from such Lender or
such
obligation is otherwise fully satisfied; provided, however, that
nothing
contained in this sentence shall relieve such Lender of its
obligation to
reimburse the Agent for such amount in accordance with this
subsection
1.2.2.
1.2.3. Reimbursement. Notwithstanding anything to the
contrary
contained herein, Borrowers, Agent and Lenders hereby agree that
all LC
Obligations and all obligations of each Borrower relating
thereto shall be
satisfied by the prompt issuance of one or more Revolving Credit
Loans in
Dollars that are Base Rate Portions, which Borrowers hereby
acknowledge
are requested and Lenders hereby agree to fund. In the event
that
Revolving Credit Loans are not, for any reason, promptly made to
satisfy
all then existing LC Obligations, each Lender hereby agrees to
pay to
Agent, on demand, an amount equal to the Dollar Equivalent of
such LC
Obligations multiplied by such Lender's Revolving Loan
Percentage, and
until so paid, such amount shall be secured by the Collateral
and shall
bear interest and be payable at the same rate and in the same
manner as
Base Rate Portions. In no event shall Agent or any Lender make
any
Revolving Credit Loan in respect of any Obligation that has
already been
satisfied by any Borrower.
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1.3. Reallocation of Revolving Loan Commitments.
Each Borrower and each Lender hereby acknowledges and agrees
that on
the Closing Date each Lender will each assign portions of its
existing
Revolving Loan Commitment to and among the various other
Lenders, without
recourse and without representations or warranties other than
that no
liens or security interests were created by such Lender on such
Lender's
Revolving Loan Commitment, in amounts sufficient to cause each
Lender's
respective Revolving Loan Commitment to be the amounts set forth
below
such Lender's name on the signature pages to this Agreement.
1.4. Borrowing Agent.
For ease of administration of this Agreement, each Borrower
other
than Wabash hereby appoints Wabash as its borrowing agent
hereunder. In
such capacity, Wabash will request all Revolving Credit Loans to
be made
pursuant to Section 1.1, will request all Letters of Credit and
LC
Guaranties to be issued pursuant to Section 1.2 and will submit
all LIBOR
Requests with respect to obtaining any LIBOR Portion pursuant
to
subsection 3.1.7, converting any Base Rate Portion into a LIBOR
Portion
pursuant to subsection 3.1.8 or continuing any LIBOR Portion
into a
subsequent Interest Period pursuant to subsection 3.1.9, in each
case
pursuant to the procedures set forth in Section 3.1.
Notwithstanding
anything to the contrary contained in this Agreement, no
Borrower other
than Wabash shall be entitled to directly request any Revolving
Credit
Loans, Letters of Credit or LC Guaranties or to submit any LIBOR
Requests
hereunder and such requests shall be directed through Wabash, as
borrowing
agent hereunder, for any requesting Borrower. The proceeds of
all
Revolving Credit Loans made hereunder shall be advanced to or at
the
direction of Wabash and used solely for the purposes described
in
subsection 1.1.3.
1.5. Alternate Currencies.
After the Closing Date, Borrowers may request that Letters of
Credit
and/or LC Guaranties be issued in any lawful currency other than
Dollars
that is at such time freely traded in the offshore interbank
foreign
exchange and foreign deposit market in which Bank customarily
funds loans
in currencies other than Dollars, by means of a written request
received
by Agent at least 7 Business Days prior to the issuance date for
the
Letter of Credit or LC Guaranty. Agent may accept or reject such
request
in the exercise of its sole discretion and shall promptly inform
Borrowers
thereof. If Agent accepts any such request, the currency
designated shall
be referred to as an "Agreed Alternate Currency".
Notwithstanding the
foregoing, any otherwise Agreed Alternate Currency shall
automatically
cease being an Agreed Alternate Currency at such time that, in
Agent's
determination, such currency could not reasonably be converted
by Agent
into Dollars within 3 Business Days. Upon any draw upon a Letter
of Credit
or LC Guaranty, the amount of such draw shall be immediately
converted
into Dollars in the manner provided in Section 1.6. All reserves
against
Availability relating to the LC Amount or LC Obligations shall
be adjusted
at a frequency determined by Agent (but no less frequently than
monthly)
on the basis of a mark-to-market conversion completed in the
manner set
forth in Section 1.6.
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1.6. Dollars; Conversion to Dollars.
Unless otherwise specifically set forth in this Agreement,
all
monetary amounts shall be in Dollars. All valuations or
computations of monetary
amounts set forth in this Agreement shall include the Dollar
Equivalent of
amounts designated in Canadian Dollars or any Agreed Alternate
Currency. In
connection with all Dollar amounts set forth in this Agreement,
all Canadian
Dollars or amounts in any Agreed Alternate Currency shall be
converted to
Dollars in accordance with prevailing exchange rates, as
determined by Agent in
its sole discretion, on the applicable date.
1.7. Judgment Currency; Contractual Currency.
(i) If, for the purpose of obtaining or enforcing judgment
against any Borrower or Guarantor or any other party to this
Agreement in any court in any jurisdiction, it becomes necessary
to
convert into any other currency (such other currency being
hereinafter in this Section 1.7 referred to as the "Judgment
Currency") an amount due under any Loan Document in any
currency
(the "Obligation Currency") other than the Judgment Currency,
the
conversion shall be made at the rate of exchange prevailing on
the
Business Day immediately preceding (a) the date of actual
payment of
the amount due, in the case of any proceeding in the courts of
any
jurisdiction that will give effect to such conversion being made
on
such date, or (b) the date on which the judgment is given, in
the
case of any proceeding in the courts of any other jurisdiction
(the
applicable date as of which such conversion is made pursuant to
this
Section 1.7 being hereinafter in this Section 1.7 referred to as
the
"Judgment Conversion Date").
(ii) If, in the case of any proceeding in the court of any
jurisdiction referred to in subsection 1.7(i), there is a change
in
the rate of exchange prevailing between the Judgment Conversion
Date
and the date of actual receipt for value of the amount due,
the
applicable Borrower or Guarantor shall pay such additional
amount
(if any, but in any event not a lesser amount) as may be
necessary
to ensure that the amount actually received in the Judgment
Currency, when converted at the rate of exchange prevailing on
the
date of payment, will produce the amount of the Obligation
Currency
which could have been purchased with the amount of the
Judgment
Currency stipulated in the judgment or judicial order at the
rate of
exchange prevailing on the Judgment Conversion Date. Any amount
due
from a Borrower or Guarantor under this subsection 1.7(ii) shall
be
due as a separate debt and shall not be affected by judgment
being
obtained for any other amounts due under or in respect of any of
the
Documents.
(iii) The term "rate of exchange" in this Section 1.7 means
the rate of exchange at which Agent would, on the relevant date
at
or about 12:00 noon (Chicago time), be prepared to sell the
Obligation Currency against the Judgment Currency.
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<PAGE>
(iv) Any amount received or recovered by Agent in respect of
any sum expressed to be due to it (whether for itself or as
trustee
for any other person) from any Borrower or Guarantor of any
other
party under this Agreement or under any of the other Loan
Documents
in a currency other than the currency (the "contractual
currency")
in which such sum is so expressed to be due (whether as a result
of
or from the enforcement of, any judgment or order of a court
or
tribunal of any jurisdiction, the winding-up of a Borrower
or
Guarantor or otherwise) shall only constitute a discharge of
such
Borrower or Guarantor to the extent of the amount of the
contractual
currency that Agent is able, in accordance with its usual
practice,
to purchase with the amount of the currency so received or
recovered
on the date of receipt or recovery (or, if later, the first date
on
which such purchase is practicable). If the amount of the
contractual currency so purchased is less than the amount of
the
contractual currency so expressed to be due, such Borrower
or
Guarantor shall indemnify Agent against any loss sustained by it
as
a result, including the cost of making any such purchase.
1.8. Common Enterprise.
Wabash is the direct or indirect and beneficial owner and holder
of
all of the issued and outstanding shares of stock or other
equity interests in
each other Borrower and Subsidiary Guarantor. Borrowers and
Subsidiary
Guarantors make up a related organization of various entities
constituting a
single economic and business enterprise so that Borrowers and
Subsidiary
Guarantors share a substantial identity of interests such that
any benefit
received by any one of them benefits the others. Borrowers and
certain of the
Subsidiary Guarantors render services to or for the benefit of
Borrowers and/or
the other Subsidiary Guarantors, as the case may be, purchase or
sell and supply
goods to or from or for the benefit of the others, make loans,
advances and
provide other financial accommodations to or for the benefit of
Borrowers and
Subsidiary Guarantors (including inter alia, the payment by
Borrowers and
Subsidiary Guarantors of creditors of the Borrowers or
Subsidiary Guarantors and
guarantees by Borrowers and Subsidiary Guarantors of
indebtedness of Borrowers
and Subsidiary Guarantors and provide administrative, marketing,
payroll and
management services to or for the benefit of Borrowers and
Subsidiary
Guarantors). Borrowers and Subsidiary Guarantors have
centralized accounting,
common officers and directors and are in certain circumstances,
identified to
creditors as a single economic and business enterprise.
1.9. Effect of Amendment and Restatement.
Upon the execution and delivery of this Agreement, the
indebtedness
and other liabilities of each Borrower previously governed by
the Original Loan
Agreement shall continue in full force and effect, but shall be
governed by the
terms and conditions set forth in this Agreement. Such
liabilities, together
with any and all additional liabilities incurred by each
Borrower hereunder or
under any of the other Loan Documents, shall continue to be
secured by, among
other things, the Collateral, whether now existing or hereafter
acquired and
wheresoever located, all as more specifically set forth herein
and in the
Security Documents. Each Borrower hereby reaffirms its
obligations, liabilities,
grants of security interests, pledges and the validity
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<PAGE>
of all covenants by such Borrower contained in any and all
Security Documents.
The execution and delivery of this Agreement shall not
constitute a novation or
repayment of the indebtedness outstanding under the Original
Loan Agreement.
Each Borrower hereby acknowledges and agrees that any and all
references in any
Loan Documents to the Original Loan Agreement shall be deemed to
be amended to
refer to this Agreement. Each Borrower hereby reaffirms its
obligations,
liabilities and indebtedness arising under each of the Loan
Documents existing
on the date hereof, in each case after giving effect to the
provisions of the
preceding sentence.
SECTION 2. INTEREST, FEES AND CHARGES
2.1. Interest.
2.1.1. Rates of Interest. Interest shall accrue on the
principal
amount of the Base Rate Portions outstanding at the end of each
day at a
fluctuating rate per annum equal to the Applicable Margin then
in effect
plus the Base Rate. Said rate of interest shall increase or
decrease by an
amount equal to any increase or decrease in the Base Rate,
effective as of
the opening of business on the day that any such change in the
Base Rate
occurs. If a Borrower exercises its LIBOR Option as provided in
Section
3.1, interest shall accrue on the principal amount of the LIBOR
Portions
outstanding at the end of each day at a rate per annum equal to
the
Applicable Margin then in effect plus the LIBOR applicable to
each LIBOR
Portion for the corresponding Interest Period.
2.1.2. Default Rate of Interest. At the option of Agent or
the
Majority Lenders, upon and after the occurrence of an Event of
Default and
during the continuation thereof, the principal amount of all
Loans shall
bear interest at a rate per annum equal to 2.0% plus the
interest rate
otherwise applicable thereto (the "Default Rate").
2.1.3. Maximum Interest. In no event whatsoever shall the
aggregate
of all amounts deemed interest hereunder or under the Notes and
charged or
collected pursuant to the terms of this Agreement or pursuant to
the Notes
exceed the highest rate permissible under any law which a court
of
competent jurisdiction shall, in a final determination, deem
applicable
hereto. If any provisions of this Agreement or the Notes are
in
contravention of any such law, such provisions shall be deemed
amended to
conform thereto (the "Maximum Rate"). If at any time, the amount
of
interest paid hereunder is limited by the Maximum Rate, and the
amount at
which interest accrues hereunder is subsequently below the
Maximum Rate,
the rate at which interest accrues hereunder shall remain at the
Maximum
Rate, until such time as the aggregate interest paid hereunder
equals the
amount of interest that would have been paid had the Maximum
Rate not
applied.
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<PAGE>
2.2. Computation of Interest and Fees.
Interest, Letter of Credit and LC Guaranty fees and Unused Line
Fees
hereunder shall be calculated daily and shall be computed on the
actual number
of days elapsed over a year of 360 days.
2.3. Fee Letter.
Borrowers shall jointly and severally pay to Agent certain fees
and
other amounts in accordance with the terms of the amended and
restated fee
letter among Borrowers and Agent (the "Fee Letter").
2.4. Letter of Credit and LC Guaranty Fees.
Borrowers shall jointly and severally pay to Agent:
(i) for standby Letters of Credit and LC Guaranties of
standby
letters of credit, for the ratable benefit of Lenders a per
annum
fee equal to the Applicable Margin then in effect for LIBOR
Portions
of the aggregate undrawn available amount of such Letters of
Credit
and LC Guaranties outstanding from time to time during the term
of
this Agreement, plus all normal and customary charges
associated
with the issuance, processing and administration thereof, which
fees
and charges shall be deemed fully earned upon issuance (or
as
advised by Agent or Bank) of each such Letter of Credit or
LC
Guaranty, shall be due and payable in arrears on the first
Business
Day of each month (or as advised by Agent or Bank) and shall not
be
subject to rebate or proration upon the termination of this
Agreement for any reason; provided, that at any time that
the
Default Rate is in effect, the fee applicable under this
subsection
shall be equal to the otherwise applicable fee plus 2.00%;
(ii) for documentary Letters of Credit and LC Guaranties of
documentary letters of credit, for the ratable benefit of
Lenders a
per annum fee equal to the Applicable Margin then in effect
for
LIBOR Portions of the aggregate undrawn available amount of
such
Letters of Credit and LC Guaranties outstanding from time to
time
during the term of this Agreement, plus all normal and
customary
charges associated with the issuance, processing and
administration
of each such Letter of Credit or LC Guaranty (which fees and
charges
shall be fully earned upon issuance, renewal or extension (as
the
case may be) of each such Letter of Credit or LC Guaranty (or
as
advised by Agent or Bank), shall be due and payable in arrears
on
the first Business Day of each month (or as advised by Agent
or
Bank), and shall not be subject to rebate or proration upon
the
termination of this Agreement for any reason); provided, that at
any
time that the Default Rate is in effect, the fee applicable
under
this subsection shall be equal to the otherwise applicable fee
plus
2.00%; and
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<PAGE>
(iii) with respect to all Letters of Credit and LC
Guaranties,
for the account of Agent only, a per annum fronting fee equal
to
0.25% of the aggregate undrawn available amount of such Letters
of
Credit and LC Guaranties outstanding from time to time during
the
term of this Agreement, which fronting fees shall be due and
payable
monthly in arrears on the first Business Day of each month and
shall
not be subject to rebate or proration upon the termination of
this
Agreement for any reason.
2.5. Unused Line Fee.
Borrowers shall jointly and severally pay to Agent, for the
ratable
benefit of Lenders and Agent (as lender of the Swingline Loans),
a fee (the
"Unused Line Fee") equal to the Applicable Margin per annum for
the Unused Line
Fee multiplied by the average daily amount by which the
Revolving Credit Maximum
Amount exceeds the sum of (i) the outstanding principal balance
of the Revolving
Credit Loans and the Swingline Loans plus (ii) the sum of the
Dollar Equivalent
of the LC Amount and the LC Obligations; provided, that for
purposes of
allocating the Unused Line Fee among Lenders (other than Agent),
outstanding
Swingline Loans shall not be included as part of the outstanding
balance of the
Loans for purposes of calculating such fees owed to Lenders
other than Agent.
The Unused Line Fee shall be payable monthly in arrears on the
first day of each
month hereafter.
2.6. Intentionally omitted.
2.7. Audit Fees.
Borrowers shall jointly and severally pay to Agent
commercially
reasonable audit fees in accordance with Agent's current
schedule of fees in
effect from time to time in connection with audits of the books
and records and
Properties of each Borrower and its Subsidiaries and such other
matters as Agent
shall deem appropriate in its reasonable credit judgment, plus
all reasonable
out-of-pocket expenses incurred by Agent in connection with such
audits, whether
such audits are conducted by employees of Agent or by third
parties hired by
Agent. Such audit fees and out-of-pocket expenses shall be
payable on the first
day of the month following the date of issuance by Agent of a
request for
payment thereof to Wabash. Agent may, in its discretion, provide
for the payment
of such amounts by making appropriate Revolving Credit Loans to
one or more
Borrowers and charging the appropriate Loan Account or Loan
Accounts therefor.
So long as no Event of Default is in existence, such audit fees
shall not exceed
$75,000 in the aggregate in any calendar year.
2.8. Reimbursement of Expenses.
If, at any time or times regardless of whether or not an Event
of
Default then exists, (i) Agent incurs reasonable legal or
accounting expenses or
any other costs or out-of-pocket expenses in connection with (1)
the negotiation
and preparation of this Agreement or any of the other Loan
Documents, any
amendment of or modification of this Agreement or any of the
other Loan
Documents, or any syndication or attempted syndication of the
Obligations
(including, without limitation, printing and distribution of
materials to
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<PAGE>
prospective Lenders and all costs associated with bank meetings,
but excluding
any closing fees paid to Lenders in connection therewith) or (2)
the
administration of this Agreement or any of the other Loan
Documents and the
transactions contemplated hereby and thereby; or (ii) Agent or
any Lender incurs
reasonable legal or accounting expenses or any other costs or
out-of-pocket
expenses in connection with (1) any litigation, contest,
dispute, suit,
proceeding or action (whether instituted by Agent, any Lender,
any Borrower or
any other Person) relating to the Collateral, this Agreement or
any of the other
Loan Documents or any Borrower's, any Subsidiary's or any
Guarantor's affairs;
(2) any amendment, modification, waiver or consent with respect
to the Loan
Documents requested of any Lender at a time when an Event of
Default is in
existence; (3) any attempt to enforce any rights of Agent or any
Lender against
any Borrower or any other Person which may be obligated to Agent
or any Lender
by virtue of this Agreement or any of the other Loan Documents,
including,
without limitation, the Account Debtors; or (4) any attempt to
inspect, verify,
protect, preserve, restore, collect, sell, liquidate or
otherwise dispose of or
realize upon the Collateral; then all such reasonable legal and
accounting
expenses, other costs and out of pocket expenses of Agent or any
Lender, as
applicable, shall be charged to Borrowers on a joint and several
basis;
provided, that Borrowers shall not be responsible for such
expenses, costs and
out-of-pocket expenses to the extent incurred because of the
gross negligence or
willful misconduct of Agent or any Lender. All amounts
chargeable to Borrowers
under this Section 2.8 shall be Obligations secured by all of
the Collateral,
shall be payable on demand to Agent or such Lender, as the case
may be, and
shall bear interest from the date such demand is made until paid
in full at the
rate applicable to Base Rate Portions from time to time.
Borrowers shall also
jointly and severally reimburse Agent and Lenders for expenses
incurred by Agent
in its administration of the Collateral to the extent and in the
manner provided
in Sections 2.9 and 2.10 hereof.
2.9. Bank Charges.
Borrowers shall jointly and severally pay to Agent and each
applicable Lender, on demand, any and all fees, costs or
expenses which Agent or
such Lender pays to a bank or other similar institution arising
out of or in
connection with (i) the forwarding to any Borrower or any other
Person on behalf
of any Borrower, by Agent or any Lender, of proceeds of Loans
made to any
Borrower pursuant to this Agreement and (ii) the depositing for
collection by
Agent or any Lender of any check or item of payment received or
delivered to
Agent or any Lender on account of the Obligations.
2.10. Collateral Protection Expenses; Appraisals.
All commercially reasonable out-of-pocket expenses incurred
in
protecting, storing, warehousing, insuring, handling,
maintaining and shipping
the Collateral, and any and all excise, property, sales, and use
taxes imposed
by any state, federal, or local authority on any of the
Collateral or in respect
of the sale thereof shall be jointly and severally borne and
paid by Borrowers.
If Borrowers fail to promptly pay any portion thereof when due,
Agent may, at
its option, but shall not be required to, pay the same and
charge one or more
Borrowers therefor. On an annual basis commencing on January 1,
2005, at
Borrowers' joint and several expense, (a) Agent shall have the
option to obtain
Availability Appraisals and (b)(i) as requested by Agent or
Majority Lenders in
their reasonable credit judgment or (ii) promptly after any
period
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<PAGE>
of 10 consecutive days during which Availability is less than
$40,000,000, Agent
shall (A) obtain a desk top appraisal of the Inventory, the Bill
and Hold
Inventory and the Trailer Inventory of the Companies conducted
by an employee of
Agent or a third party appraiser reasonably acceptable to Agent
or (B) obtain an
appraisal of the Inventory, the Bill and Hold Inventory and the
Trailer
Inventory of the Companies from a third party appraiser
reasonably acceptable to
Agent, each of which appraisals shall include an assessment of
the net orderly
liquidation percentage of each category or type of Inventory,
Bill and Hold
Inventory and Trailer Inventory. Additionally, from time to
time, if Agent or
any Lender determines that obtaining appraisals is necessary in
order for it to
comply with applicable laws or regulations, and at any time if a
Default or an
Event of Default shall have occurred and be continuing, Agent
may, and at the
direction of the applicable Lender, Agent shall, at Borrowers'
joint and several
expense, obtain appraisals from appraisers (who may be personnel
of Agent),
stating the then current fair market value of all or any portion
of the real
Property or personal Property of any Company, including without
limitation the
Inventory of any Company.
2.11. Payment of Charges.
All amounts chargeable to any Borrower under this Agreement
shall be
Obligations secured by all of the Collateral, shall be, unless
specifically
otherwise provided, payable on demand and shall bear interest
from the date
demand was made or such amount is due, as applicable, until paid
in full at the
rate applicable to Base Rate Portions from time to time.
2.12. No Deductions.
Any and all payments or reimbursements made hereunder shall be
made
free and clear of and without deduction for any and all taxes,
levies, imposts,
deductions, charges or withholdings, and all liabilities with
respect thereto;
excluding, however, the following: taxes imposed on the income
of Agent or any
Lender or franchise taxes by the jurisdiction under the laws of
which Agent or
any Lender is organized or doing business or any political
subdivision thereof
and taxes imposed on its income by the jurisdiction of Agent's
or such Lender's
applicable lending office or any political subdivision thereof
or franchise
taxes (all such taxes, levies, imposts, deductions, charges or
withholdings and
all liabilities with respect thereto excluding such taxes
imposed on net income,
herein "Tax Liabilities"). If any Borrower shall be required by
law to deduct
any such Tax Liabilities from or in respect of any sum payable
hereunder to
Agent or any Lender, then the sum payable hereunder by Borrowers
shall be
increased as may be necessary so that, after all required
deductions are made,
Agent or such Lender receives an amount equal to the sum it
would have received
had no such deductions been made.
2.13. Joint and Several Obligations.
Each Borrower acknowledges that it is jointly and severally
liable
for all of the Obligations and as a result hereby
unconditionally guaranties the
full and prompt payment when due, whether at maturity or
earlier, by reason of
acceleration or otherwise, and at all times thereafter, of all
indebtedness,
liabilities and obligations of every kind and nature of each
other
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Borrower to Agent and Lenders and, howsoever created, arising or
evidenced,
whether direct or indirect, absolute or contingent, joint or
several, now or
hereafter existing, or due or to become due, and howsoever
owned, held or
acquired by Agent or any Lender. Each Borrower agrees that if
this guaranty, or
any Liens securing this guaranty, would, but for the application
of this
sentence, be unenforceable under applicable law, this guaranty
and each such
Lien shall be valid and enforceable to the maximum extent that
would not cause
this guaranty or such Lien to be unenforceable under applicable
law, and this
guaranty shall automatically be deemed to have been amended
accordingly at all
relevant times.
Each Borrower hereby agrees that its obligations under this
guaranty
shall be unconditional, irrespective of (a) the validity or
enforceability of
the Obligations or any part thereof, or of any promissory note
or other document
evidencing all or any part of the Obligations, (b) the absence
of any attempt to
collect the Obligations from any other Borrower or any Guarantor
or other action
to enforce the same, (c) the waiver or consent by Agent or any
Lender with
respect to any provision of any agreement, instrument or
document evidencing or
securing all or any part of the Obligations, or any other
agreement, instrument
or document now or hereafter executed by any other Borrower and
delivered to
Agent or any Lender (other than a waiver, forgiveness or consent
by Agent and
Lenders that reduces the amount of any of the Obligations), (d)
the failure by
Agent or any Lender to take any steps to perfect and maintain
its security
interest in, or to preserve its rights to, any security or
Collateral for the
Obligations, for its benefit, (e) Agent's or any Lender's
election, in any
proceeding instituted under the United States Bankruptcy Code or
any other
similar bankruptcy or insolvency legislation, of the application
of Section
1111(b)(2) of the United States Bankruptcy Code or any other
similar bankruptcy
or insolvency legislation, (f) any borrowing or grant of a
security interest by
any Borrower as debtor-in-possession, under Section 364 of the
United States
Bankruptcy Code or any other similar bankruptcy or insolvency
legislation, (g)
the disallowance, under Section 502 of the United States
Bankruptcy Code or any
other similar bankruptcy or insolvency legislation, of all or
any portion of
Agent's or any Lender's claim(s) for repayment of the
Obligations or (h) any
other circumstance which might otherwise constitute a legal or
equitable
discharge or defense of a borrower or a guarantor.
Each Borrower hereby waives diligence, presentment, demand
of
payment, filing of claims with a court in the event of
receivership or
bankruptcy of any Borrower, protest or notice with respect to
the Obligations
and all demands whatsoever, and covenants that this guaranty
will not be
discharged, except by complete and irrevocable payment and
performance of the
Obligations. No notice to any Borrower or any other party shall
be required for
Agent or any Lender to make demand hereunder. Such demand shall
constitute a
mature and liquidated claim against the applicable Borrower.
Upon the occurrence
of any Event of Default, Agent or any Lender may, in its sole
election, proceed
directly and at once, without notice, against all or any
Borrower to collect and
recover the full amount or any portion of the Obligations,
without first
proceeding against any other Borrower or any other Person, or
any security or
collateral for the Obligations. During the existence of an Event
of Default,
Agent and each Lender shall have the exclusive right to
determine the
application of payments and credits, if any from any Borrower,
any other Person
or any security or collateral for the Obligations, on account of
the Obligations
or of any other liability of any Borrower to Agent or any
Lender.
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At any time after and during the continuance of an Event of
Default,
Agent and each Lender may, in its sole discretion, without
notice to any
Borrower and regardless of the acceptance of any collateral for
the payment
hereof, appropriate and apply toward payment of the Obligations
(i) any
indebtedness due or to become due from Agent or any Lender to
such Borrower and
(ii) any moneys, credits or other property belonging to such
Borrower at any
time held by or coming into the possession of Agent or any
Lender or any
Affiliates thereof, whether for deposit or otherwise.
Notwithstanding anything to the contrary set forth in this
Section
2.13, it is the intent of the parties hereto that the liability
incurred by each
Borrower in respect of the Obligations of the other Borrowers
(and any Lien
granted by each Borrower to secure such Obligations), not
constitute a
fraudulent conveyance under Section 548 of the United States
Bankruptcy Code or
a fraudulent conveyance or fraudulent transfer under the
provisions of any
applicable law of any state or other governmental unit
("Fraudulent
Conveyance"). Consequently, each Borrower, Agent and each Lender
hereby agree
that if a court of competent jurisdiction determines that the
incurrence of
liability by any Borrower in respect of the Obligations of any
other Borrower
(or any Liens granted by such Borrower to secure such
Obligations) would, but
for the application of this sentence, constitute a Fraudulent
Conveyance, such
liability (and such Liens) shall be valid and enforceable only
to the maximum
extent that would not cause the same to constitute a Fraudulent
Conveyance, and
this Agreement and the other Loan Documents shall automatically
be deemed to
have been amended accordingly.
Each Borrower expressly waives all rights it may have now or in
the
future under any statute, or at common law, or at law or in
equity, or
otherwise, to compel Agent or Lenders to marshall assets or to
proceed in
respect of the Obligations guaranteed hereunder against any
other Borrower or
any Guarantor, any other party or against any security for the
payment and
performance of the Obligations before proceeding against, or as
a condition to
proceeding against, such Borrower. It is agreed among each
Borrower, Agent and
Lenders that the foregoing waivers are of the essence of the
transaction
contemplated by this Agreement and the other Loan Documents and
that, but for
the provisions of this Section 2.13 and such waivers, Agent and
Lenders would
decline to enter into this Agreement.
Each Borrower agrees that the provisions of this Section 2.13
are
for the benefit of Agent and Lenders and their respective
successors,
transferees, endorsees and assigns, and nothing herein contained
shall impair,
as between any other Borrower and Agent or Lenders, the
obligations of such
other Borrower under the Loan Documents.
Notwithstanding anything to the contrary in this Agreement or in
any
other Loan Document, and except as set forth in Section 2.13,
each Borrower
hereby expressly and irrevocably subordinates to payment of the
Obligations any
and all rights at law or in equity to subrogation,
reimbursement, exoneration,
contribution, indemnification or set off (including those set
forth in Section
2.14) and any and all defenses available to a surety, guarantor
or accommodation
co-obligor until the Obligations are indefeasibly paid in full
in cash. Each
Borrower acknowledges and agrees that this subordination is
intended to benefit
Agent and Lenders and shall not limit or otherwise affect such
Borrower's
liability hereunder or the
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enforceability of this Section 2.13, and that Agent, Lenders and
their
respective successors and assigns are intended third party
beneficiaries of the
waivers and agreements set forth in this Section 2.13.
If Agent or any Lender may, under applicable law, proceed to
realize
its benefits under any of the Loan Documents giving Agent or
such Lender a Lien
upon any Collateral, whether owned by any Borrower or by any
other Person,
either by judicial foreclosure or by non-judicial sale or
enforcement, Agent or
any Lender may, at its sole option, determine which of its
remedies or rights it
may pursue without affecting any of its rights and remedies
under this Section
2.13. If, in the exercise of any of its rights and remedies,
Agent or any Lender
shall forfeit any of its rights or remedies, including its right
to enter a
deficiency judgment against any Borrower or any other Person,
whether because of
any applicable laws pertaining to "election of remedies" or the
like, each
Borrower hereby consents to such action by Agent or such Lender
and waives any
claim based upon such action, even if such action by Agent or
such Lender shall
result in a full or partial loss of any rights of subrogation
that each Borrower
might otherwise have had but for such action by Agent or such
Lender. Any
election of remedies that results in the denial or impairment of
the right of
Agent or any Lender to seek a deficiency judgment against any
Borrower shall not
impair any other Borrower's obligation to pay the full amount of
the
Obligations. In the event Agent or any Lender shall bid at any
foreclosure or
trustee's sale or at any private sale permitted by law or the
Loan Documents,
Agent or such Lender may bid all or less than the amount of the
Obligations and
the amount of such bid need not be paid by Agent or such Lender
but shall be
credited against the Obligations. The amount of the successful
bid at any such
sale, whether Agent, Lender or any other party is the successful
bidder, shall
be conclusively deemed to be the fair market value of the
Collateral and the
difference between such bid amount and the remaining balance of
the Obligations
shall be conclusively deemed to be the amount of the Obligations
guaranteed
under this Section 2.13, notwithstanding that any present or
future law or court
decision or ruling may have the effect of reducing the amount of
any deficiency
claim to which Agent or any Lender might otherwise be entitled
but for such
bidding at any such sale.
The liability of Borrowers under this Section 2.13 is in
addition to
and shall be cumulative with all liabilities of each Borrower to
Agent and
Lenders under this Agreement and the other Loan Documents to
which such Borrower
is a party or in respect of any Obligations or obligation of the
other Borrower,
without any limitation as to amount, unless the instrument or
agreement
evidencing or creating such other liability specifically
provides to the
contrary.
2.14. Subrogation and Contribution.
Each Borrower agrees that if any other Borrower or any
Guarantor
makes a payment in respect of the Obligations, subject to
Section 2.13, it shall
be subrogated to the rights of the payees thereof against the
other Borrowers
and Guarantors with respect to such payment and shall have the
rights of
contribution set forth below against the other Borrowers and
Guarantors. Subject
to Section 2.13, each Borrower or Guarantor shall make payments
in respect of
the Obligations or contribution payments to the other Borrowers
and Guarantors
such that, taking into account all payments received on account
of subrogation
or contribution rights: (a) each Borrower or Guarantor shall
have repaid at some
time after the date hereof all
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Obligations the benefit of which have been received by it or, if
the aggregate
of all such repayments would exceed the outstanding Obligations,
its pro rata
share of the outstanding Obligations, in accordance with the
benefit received by
it and (b) if there remain Obligations unpaid after application
of the payments
referred to above, the deficiency shall be shared by Borrowers
and Guarantors
pro rata in preparation to their respective net worths on the
Closing Date.
SECTION 3. LOAN ADMINISTRATION.
3.1. Manner of Borrowing Revolving Credit Loans/LIBOR
Option.
Borrowings under the credit facility established pursuant to
Section
1 hereof shall be as follows:
3.1.1. Loan Requests. A request for a Revolving Credit Loan
shall be
made, or shall be deemed to be made, in the following manner:
(a) subject
to the terms of Section 1.4, Wabash (on behalf of Borrowers) may
give
Agent notice of its intention to borrow, in which notice Wabash
shall
specify the amount of the proposed borrowing of a Revolving
Credit Loan
(which shall be no less than $500,000 or an integral multiple of
$100,000)
and the proposed borrowing date, which shall be a Business Day,
no later
than 11:00 a.m. (Chicago, Illinois time) on the proposed
borrowing date
(or in accordance with subsection 3.1.7, 3.1.8 or 3.1.9, as
applicable, in
the case of a request for a LIBOR Portion), provided, however,
that no
such request may be made at a time when there exists a Default
or an Event
of Default; and (b) the becoming due of any amount required to
be paid
under this Agreement, or the Notes, whether as interest or for
any other
Obligation, shall be deemed irrevocably to be a request by a
Borrower for
a Revolving Credit Loan on the due date in the amount required
to pay such
interest or other Obligation.
3.1.2. Payment by Lenders. Agent shall give to each Lender
prompt
written notice by facsimile, telex or cable of the receipt by
Agent from
Wabash of any request for a Revolving Credit Loan. Each such
notice shall
specify the requested date and amount of such Revolving Credit
Loan,
whether such Revolving Credit Loan shall be subject to the LIBOR
Option,
and the amount of each Lender's advance thereunder (in
accordance with its
applicable Revolving Loan Percentage). Each Lender shall, not
later than
12:00 p.m. (Chicago time) on such requested date, wire to a
bank
designated by Agent the amount of that Lender's Revolving Loan
Percentage
of the requested Revolving Credit Loan. The failure of any
Lender to make
the Revolving Credit Loans to be made by it shall not release
any other
Lender of its obligations hereunder to make its Revolving Credit
Loan.
Neither Agent nor any other Lender shall be responsible for the
failure of
any other Lender to make the Revolving Credit Loan to be made by
such
other Lender. The foregoing notwithstanding, Agent, in its
sole
discretion, may from its own funds make a Revolving Credit Loan
on behalf
of any Lender. In such event, the Lender on behalf of whom Agent
made the
Revolving Credit Loan shall reimburse Agent for the amount of
such
Revolving Credit Loan made on its behalf, on a weekly (or more
frequent,
as determined by Agent in its sole discretion) basis. In
addition, Agent
shall notify Lenders on a weekly (or more frequent, as
determined by Agent
in its sole
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discretion) basis regarding settlement of the Swingline Loans,
and
promptly following such notice, each Lender shall reimburse
Agent (in
accordance with its applicable Revolving Loan Percentage) for
the amount
of the Swingline Loans outstanding. On each such settlement
date, Agent
will pay to each Lender the net amount owing to such Lender in
connection
with such settlement, including without limitation amounts
relating to
Loans, fees, interest and other amounts payable hereunder. The
entire
amount of interest attributable to such Revolving Credit Loan or
Swingline
Loan for the period from the date on which such Revolving Credit
Loan or
Swingline Loan was made by Agent on such Lender's behalf until
Agent is
reimbursed by such Lender, shall be paid to Agent for its own
account.
3.1.3. Disbursement. Each Borrower hereby irrevocably
authorizes
Agent to disburse the proceeds of each Loan requested, or deemed
to be
requested, pursuant to subsection 3.1.1 as follows: (i) the
proceeds of
each Revolving Credit Loan requested under subsection 3.1.1(a)
shall be
disbursed by Agent in lawful money of the United States of
America in
immediately available funds, in the case of the initial
borrowing, in
accordance with the terms of the written disbursement letter
from
Borrowers, and in the case of each subsequent borrowing, by wire
transfer
to such bank account as may be agreed upon by Borrowers and
Agent from
time to time or elsewhere if pursuant to a written direction
from a
Borrower and (ii) the proceeds of each Revolving Credit Loan
deemed
requested under subsection 3.1.1(b) shall be disbursed by Agent
by way of
direct payment of the relevant interest or other Obligation. If
at any
time any Loan is funded by Agent or Lenders in excess of the
amount
requested or deemed requested by a Borrower, such Borrower
agrees to repay
the excess to Agent immediately upon the earlier to occur of (a)
such
Borrower's discovery of the error and (b) notice thereof to such
Borrower
from Agent or any Lender.
3.1.4. Authorization. Each Borrower hereby irrevocably
authorizes
Agent, in Agent's sole discretion, to advance to Wabash or
another
Borrower, and to charge to the appropriate Borrower's Loan
Account
hereunder as a Revolving Credit Loan (which shall be a Base Rate
Portion),
a sum sufficient to pay all interest accrued on the Obligations
during the
immediately preceding month, to pay all principal due and
payable at any
time and to pay all fees, costs and expenses and other
Obligations at any
time owed by each Borrower to Agent or any Lender hereunder;
provided
however that the applicable Borrower shall have 48 hours to
review and pay
expenses related to attorneys' fees prior to Agent charging
the
appropriate Borrower's Loan Account hereunder related
thereto.
3.1.5. Letter of Credit and LC Guaranty Requests. A request for
a
Letter of Credit or LC Guaranty shall be made in the following
manner:
Wabash (on behalf of Borrowers) shall give Agent and Bank a
written notice
of its request for the issuance of a Letter of Credit or LC
Guaranty, not
later than 11:00 a.m. (Chicago, Illinois time), at least one
Business Day
before the proposed issuance date thereof, in which notice such
Borrower
shall specify the proposed issuer, issuance date and format
and
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<PAGE>
wording for the Letter of Credit or LC Guaranty being requested
(which
shall be satisfactory to Agent and the Person being asked to
issue such
Letter of Credit or LC Guaranty); provided, that no such request
may be
made at a time when there exists a Default or Event of Default.
Such
request shall be accompanied by an executed application and
reimbursement
agreement in form and substance satisfactory to Agent and the
Person being
asked to issue the Letter of Credit or LC Guaranty, as well as
any
required corporate resolutions or other documents reasonably
requested by
Agent or Bank.
3.1.6. Method of Making Requests. As an accommodation to
Borrowers,
unless a Default or an Event of Default is then in existence,
(i) Agent
shall permit telephonic or electronic requests for Revolving
Credit Loans
to Agent, (ii) Agent and Bank may, in their discretion, permit
electronic
transmittal of requests for Letters of Credit and LC Guaranties
to them,
and (iii) Agent may, in Agent's discretion, permit electronic
transmittal
of instructions, authorizations, agreements or reports to Agent.
Unless a
Borrower specifically directs Agent or Bank, as applicable in
writing not
to accept or act upon telephonic or electronic communications
from such
Borrower (which direction shall only be applicable to the
Persons who have
received the same in writing), neither Agent, Bank nor any
Lender shall
have any liability to any Borrower for any loss or damage
suffered by any
Borrower as a result of Agent's or Bank's honoring of any
requests,
execution of any instructions, authorizations or agreements or
reliance on
any reports communicated to it telephonically or electronically
and
purporting to have been sent to Agent or Bank by any Borrower,
and neither
Agent or Bank shall have any duty to verify the origin of any
such
communication or the authority of the Person sending it. Each
telephonic
request for a Letter of Credit or LC Guaranty accepted by Agent
or Bank
hereunder shall be promptly followed by a written confirmation
of such
request from the applicable Borrower to Agent and Bank.
3.1.7. LIBOR Portions. Provided that as of both the date of
the
LIBOR Request and the first day of the Interest Period, no
Default or
Event of Default exists, in the event a Borrower desires to
obtain a LIBOR
Portion, Wabash (on behalf of such Borrower) shall give Agent a
LIBOR
Request no later than 11:00 a.m. (Chicago, Illinois time) on the
third
Business Day prior to the requested borrowing date. Each LIBOR
Request
shall be irrevocable and binding on Borrowers. In no event shall
Borrowers
be permitted to have outstanding at any one time LIBOR Portions
with more
than six (6) different Interest Periods.
3.1.8. Conversion of Base Rate Portions. Provided that as of
both
the date of the LIBOR Request and the first day of the Interest
Period, no
Default or Event of Default exists, a Borrower may, on any
Business Day,
convert any Base Rate Portion of such Borrower into a LIBOR
Portion. If a
Borrower desires to convert a Base Rate Portion, Wabash (on
behalf of such
Borrower) shall give Agent a LIBOR Request no later then 11:00
a.m.
(Chicago, Illinois time) on the third Business Day prior to the
requested
conversion date. After giving effect to any conversion of Base
Rate
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<PAGE>
Portions to LIBOR Portions, Borrowers shall not be permitted to
have
outstanding at any one time LIBOR Portions with more than six
(6)
different Interest Periods.
3.1.9. Continuation of LIBOR Portions. Provided that as of both
the
date of the LIBOR Request and the first day of the Interest
Period, no
Default or Event of Default exists, a Borrower may, on any
Business Day,
continue any LIBOR Portions of such Borrower into a subsequent
Interest
Period of the same or a different permitted duration. If a
Borrower
desires to continue a LIBOR Portion, Wabash (on behalf of such
Borrower)
shall give Agent a LIBOR Request no later than 11:00 a.m.
(Chicago,
Illinois time) on the second Business Day prior to the
requested
continuation date. After giving effect to any continuation of
LIBOR
Portions, Borrowers shall not be permitted to have outstanding
at any one
time LIBOR Portions with more than six (6) different Interest
Periods. If
a Borrower shall fail to give timely notice of its election to
continue
any LIBOR Portion or portion thereof as provided above, or if
such
continuation shall not be permitted, such LIBOR Portion or
portion
thereof, unless such LIBOR Portion shall be repaid, shall
automatically be
converted into a Base Rate Portion at the end of the Interest
Period then
in effect with respect to such LIBOR Portion.
3.1.10. Inability to Make LIBOR Portions. Notwithstanding any
other
provision hereof, if any applicable law, treaty, regulation or
directive,
or any change therein or in the interpretation or application
thereof,
shall make it unlawful for any Lender (for purposes of this
subsection
3.1.10, the term "Lender" shall include the office or branch
where such
Lender or any corporation or bank then controlling such Lender
makes or
maintains any LIBOR Portions) to make or maintain its LIBOR
Portions, or
if with respect to any Interest Period, Agent is unable to
determine the
LIBOR relating thereto, or adverse or unusual conditions in, or
changes in
applicable law relating to, the London interbank market make it,
in the
reasonable judgment of Agent, impracticable to fund therein any
of the
LIBOR Portions, or make the projected LIBOR unreflective of the
actual
costs of funds therefor to any Lender, the obligation of Agent
and Lenders
to make or continue LIBOR Portions or convert Base Rate Portions
to LIBOR
Portions hereunder shall forthwith be suspended during the
pendency of
such circumstances and the applicable Borrower shall, if any
affected
LIBOR Portions are then outstanding, promptly upon request from
Agent,
convert such affected LIBOR Portions into Base Rate
Portions.
3.2. Payments.
Except where evidenced by Notes issued by one or more Borrowers
to
any Lender and accepted by such Lender specifically containing
payment
instructions that are in conflict with this Section 3.2 (in
which case the
conflicting provisions of said notes or other instruments shall
govern and
control), the Obligations shall be payable as follows:
3.2.1. Principal. Principal on account of Revolving Credit
Loans
shall be payable by Borrowers to Agent for the ratable benefit
of Lenders
immediately upon the earliest of (i) at all times during a
Dominion
Period, the receipt by Agent, any
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Company or any Guarantor of any proceeds of any of the
Collateral (except
as otherwise provided herein), including without limitation
pursuant to
subsections 3.3.1 and 6.2.4, to the extent of said proceeds,
subject to
Borrowers' rights to reborrow such amounts in compliance with
subsection
1.1.1 hereof; (ii) the occurrence of an Event of Default in
consequence of
which Agent or Majority Lenders elect to accelerate the maturity
and
payment of the Obligations, (iii) subject to the provisions of
subsection
1.1.2, at all times that the calculations set forth in
subsection 1.1.1
reflect a negative amount, to the extent of such amount, or
(iv)
termination of this Agreement pursuant to Section 4 hereof;
provided,
however, that, if an Overadvance shall exist at any time,
Borrowers shall,
on demand, jointly and severally repay the Overadvance. Each
payment
(including principal prepayment) on account of principal of the
Revolving
Credit Loans shall be applied first to Base Rate Portions and
then to
LIBOR Portions.
3.2.2. Interest.
(i) Base Rate Portion. Interest accrued on Base Rate
Portions
shall be due and payable on the earliest of (1) the first
calendar
day of each month (for the immediately preceding month),
computed
through the last calendar day of the preceding month, (2)
the
occurrence of an Event of Default in consequence of which Agent
or
Majority Lenders elect to accelerate the maturity and payment of
the
Obligations or (3) termination of this Agreement pursuant to
Section
4 hereof.
(ii) LIBOR Portion. Interest accrued on each LIBOR Portion
shall be due and payable on each LIBOR Interest Payment Date and
on
the earlier of (1) the occurrence of an Event of Default in
consequence of which Agent or Majority Lenders elect to
accelerate
the maturity and payment of the Obligations or (2) termination
of
this Agreement pursuant to Section 4 hereof.
3.2.3. Costs, Fees and Charges. Costs, fees and charges
payable
pursuant to this Agreement shall be jointly and severally
payable by
Borrowers to Agent, as and when provided in Section 2 or Section
3 hereof,
as applicable to Agent or a Lender, as applicable, or to any
other Person
designated by Agent or such Lender in writing.
3.2.4. Other Obligations. The balance of the Obligations
requiring
the payment of money, if any, shall be jointly and severally
payable by
Borrowers to Agent for distribution to Lenders, as appropriate,
as and
when provided in this Agreement, the Other Agreements or the
Security
Documents, or on demand, whichever is later.
3.2.5. Prepayment of/Failure to Borrow LIBOR Portions. Borrowers
may
prepay a LIBOR Portion only upon at least three (3) Business
Days prior
written notice to Agent (which notice shall be irrevocable). In
the event
of (i) the payment of any principal of any LIBOR Portion other
than on the
last day of the Interest Period applicable thereto (including as
a result
of an Event of Default), (ii) the conversion of
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any LIBOR Portion other than on the last day of the Interest
Period
applicable thereto, or (iii) the failure to borrow, convert,
continue or
prepay any LIBOR Portion on the date specified in any notice
delivered
pursuant hereto, then, in any such event, Borrowers shall
jointly and
severally compensate each Lender for the loss, cost and
expense
attributable to such event, as determined by such Lender in a
manner
consistent with its customs and practices.
3.3. Mandatory and Optional Prepayments.
3.3.1. Proceeds of Sale, Loss, Destruction or Condemnation
of
Collateral. Except for proceeds of Collateral received during
the
existence of a Event of Default (which shall be applied as set
forth in
subsection 3.4.2), if any Company or any Guarantor sells any of
the
Collateral or if any of the Collateral is lost, damaged or
destroyed or
taken by condemnation, the applicable Company or Guarantor
shall, unless
otherwise agreed by Majority Lenders, pay to Agent for the
ratable benefit
of Lenders as and when received by such Company or Guarantor and
as a
mandatory prepayment of the Loans, as herein provided, a sum
equal to the
proceeds (including insurance payments but net of costs and
taxes incurred
in connection with such sale or event) received by such Company
or
Guarantor from such sale, loss, damage, destruction or
condemnation. In
each case, the applicable prepayment shall be applied to reduce
the
outstanding principal balance of the Revolving Credit Loans, but
shall not
permanently reduce the Revolving Loan Commitments. In addition,
if the
Collateral subject to such sale, loss, damage, destruction or
condemnation
consists of (a) Eligible Accounts, Eligible Inventory, Eligible
Bill and
Hold Inventory or Eligible Trailer Inventory, such prepayment
shall be
specifically applied against any limits or sublimits contained
in the
Borrowing Base that are predicated on such Collateral or (b)
Eligible
Equipment or Eligible Real Property, such prepayment shall (i)
be
specifically applied against any limits or sublimits contained
in the
Borrowing Base that are predicated on such Collateral and (ii)
reduce the
Fixed Asset Sublimit by an amount equal to the appraised value
of such
Collateral set forth in the most recently delivered
Availability
Appraisal; provided however, that sales of Identified Real
Property shall
not permanently reduce the Fixed Asset Sublimit hereunder.
3.3.2. Prepayments after Availability Appraisals. Promptly
upon
receipt of an Availability Appraisal, Borrowers shall pay to
Agent for the
ratable benefit of Lenders as a mandatory prepayment of the
Loans, as
herein provided, a sum equal to, as applicable, (a) the amount
that
Availability after giving effect to such Availability Appraisal
is less
than Availability immediately prior to the delivery of such
Availability
Appraisal or (b) the amount that the unpaid balance of Revolving
Credit
Loans plus the sum of the Dollar Equivalent of the LC Amount
plus the
Dollar Equivalent of the amount of LC Obligations, plus
reserves, exceeds,
or would exceed with the making of any such Revolving Credit
Loan, the
Borrowing Base (as calculated giving effect to such
Availability
Appraisal). Each such prepayment shall be applied to reduce
the
outstanding principal balance of the Revolving Credit Loans and
as a
permanent reduction in the Fixed Asset Sublimit, but shall not
permanently
reduce the Revolving Loan Commitments.
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3.3.3. Proceeds from Issuance of Additional Indebtedness. If
any
Borrower or any Guarantor issues any additional Indebtedness,
Borrowers
shall jointly and severally pay to Agent for the ratable benefit
of
Lenders, when and as received by any Borrower or any Guarantor
and as a
mandatory prepayment of the Obligations, a sum equal to 100% of
the net
proceeds to such Borrower or such Guarantor of the issuance of
such
Indebtedness. Any such prepayment shall be applied to reduce
the
outstanding principal balance of the Revolving Credit Loans, but
shall not
permanently reduce the Revolving Loan Commitments.
3.3.4. Proceeds from Issuance of Additional Equity. If any
Borrower
or any Guarantor issues any additional equity (excluding (i)
equity issued
upon conversion of the Convertible Notes to equity Securities
and (ii)
equity issued upon exercise of employee options), Borrowers
shall jointly
and severally pay to Agent for the ratable benefit of Lenders,
when and as
received by any Borrower or any Guarantor, and as a mandatory
prepayment
of the Obligations, a sum equal to 50% of the net proceeds to
such
Borrower or such Guarantor of the issuance of such equity. Any
such
prepayment shall be applied to reduce the outstanding principal
balance of
the Revolving Credit Loans, but shall not permanently reduce the
Revolving
Loan Commitments.
3.3.5. Other Mandatory Prepayments. If any Borrower or any
Guarantor
receives any proceeds from any tax refunds, indemnity payments
or pension
plan reversions, Borrowers shall jointly and severally pay to
Agent for
the benefit of Lenders, when and as received by such Borrower or
such
Guarantor, and as a mandatory prepayment of the Obligations, a
sum equal
to 100% of such proceeds of such tax refund, indemnity payment
or pension
plan reversions. Any such prepayment shall be applied to reduce
the
outstanding principal balance of the Revolving Credit Loans, but
shall not
permanently reduce the Revolving Loan Commitments.
3.3.6. LIBOR Portions. If the application of any payment made
in
accordance with the provisions of this Section 3.3 at a time
when no Event
of Default has occurred and is continuing would result in
termination of a
LIBOR Portion prior to the last day of the Interest Period for
such LIBOR
Portion, the amount of such prepayment shall not be applied to
such LIBOR
Portion, but will, at Borrowers' option, be held by Agent in
a
non-interest bearing account at a Lender or another bank
satisfactory to
Agent in its discretion, which account is in the name of Agent
and from
which account only Agent can make any withdrawal, in each case
to be
applied as such amount would otherwise have been applied under
this
Section 3.3 at the earlier to occur of (i) the last day of the
relevant
Interest Period or (ii) the occurrence of a Default or an Event
of
Default.
3.3.7. Optional Reductions of Revolving Loan Commitments.
Borrowers
may, at their option from time to time but not more than once in
any 12
month period upon not less than 30 Business Days' prior written
notice to
Agent, terminate in whole or permanently reduce ratably in part,
the
unused portion of the Revolving Loan
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Commitments, provided, however, that (i) each such partial
reduction shall
be in an amount of $1,000,000 or integral multiples of
$1,000,000 in
excess thereof and (ii) the aggregate of all optional reductions
to the
Revolving Credit Commitments may not exceed $20,000,000 during
the Term.
Except for charges under subsection 3.2.5 applicable to
prepayments of
LIBOR Portions, such prepayments shall be without premium or
penalty.
3.4. Application of Payments and Collections.
3.4.1. Collections. All items of payment received by Agent
in
immediately available funds by 12:00 noon, Chicago, Illinois,
time, on any
Business Day shall be deemed received on that Business Day. All
items of
payment received after 12:00 noon, Chicago, Illinois, time, on
any
Business Day shall be deemed received on the following Business
Day. If as
the result of collections of Accounts as authorized by
subsection 6.2.4
hereof or otherwise, a credit balance exists in the Loan
Account, such
credit balance shall not accrue interest in favor of Borrowers,
but shall
be disbursed to a Borrower or otherwise at a Borrower's
direction in the
manner set forth in subsection 3.1.3, upon a Borrower's request
at any
time, so long as no Default or Event of Default then exists.
Agent may at
its option, offset such credit balance against any of the
Obligations upon
and during the continuance of an Event of Default.
3.4.2. Apportionment, Application and Reversal of Payments.
Principal and interest payments shall be apportioned ratably
among Lenders
(according to the unpaid principal balance of the Loans to which
such
payments relate held by each Lender). All payments shall be
remitted to
Agent and all such payments not relating to principal or
interest of
specific Loans, or not constituting payment of specific fees,
and all
proceeds of Accounts, or, except as provided in subsection
3.3.1, other
Collateral received by Agent, shall be applied, ratably, subject
to the
provisions of this Agreement, first, to pay any fees,
indemnities, or
expense reimbursements (other than amounts related to Product
Obligations)
then due to Agent or Lenders from any Borrower; second, to pay
interest
due from Borrowers in respect of all Loans, including Swingline
Loans and
Agent Loans; third, to pay or prepay principal of Swingline
Loans and
Agent Loans; fourth, to pay or prepay principal of the Revolving
Credit
Loans (other than Swingline Loans and Agent Loans) and
unpaid
reimbursement obligations in respect of Letters of Credit;
fifth, to pay
an amount to Agent equal to all outstanding Letter of Credit
Obligations
to be held as cash Collateral for such Obligations (in an amount
of 105%
of the aggregate amount thereof); sixth, to the payment of any
other
Obligation (other than amounts related to Product Obligations)
due to the
Agent or any Lender by any Borrower; and seventh, to pay any
amounts owing
in respect of Product Obligations. As between Agent and
Borrowers, after
the occurrence and during the continuance of an Event of
Default, Agent
shall have the continuing exclusive right to apply and reapply
any and all
such payments and collections received at any time or times
hereafter by
Agent or its agent against the Obligations, in such manner as
Agent may
deem advisable, notwithstanding any entry by Agent or any Lender
upon any
of its books and records.
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3.5. All Loans to Constitute One Obligation.
The Loans, Letters of Credit and LC Guarantees shall constitute
one
general joint and several Obligation of Borrowers, and shall be
secured by
Agent's Lien upon all of the Collateral.
3.6. Loan Account.
Agent shall enter all Loans as debits to one or more loan
accounts
(each, a "Loan Account") and shall also record in the Loan
Account all payments
made by or on behalf of each Borrower on any Obligations and all
proceeds of
Collateral which are finally paid to Agent, and may record
therein, in
accordance with customary accounting practice, other debits and
credits,
including interest and all charges and expenses properly
chargeable to each
Borrower.
3.7. Statements of Account.
Agent will account to Borrowers monthly with a statement of
Loans,
charges and payments made pursuant to this Agreement during the
immediately
preceding month, and such account rendered by Agent shall be
deemed final,
binding and conclusive upon Borrowers absent demonstrable error
unless Agent is
notified by Borrowers in writing to the contrary within 30 days
of the date each
accounting is received by Borrowers. Such notice shall only be
deemed an
objection to those items specifically objected to therein.
3.8. Increased Costs.
If any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not
having the force of
law) adopted or implemented after the date of this Agreement and
having general
applicability to all banks or finance companies within the
jurisdiction in which
any Lender operates (excluding, for the avoidance of doubt, the
effect of and
phasing in of capital requirements or other regulations or
guidelines passed
prior to the date of this Agreement), or any interpretation or
application
thereof by any governmental authority charged with the
interpretation or
application thereof, or the compliance of such Lender therewith,
shall:
(i) (1) subject such Lender to any tax with respect to this
Agreement (other than (a) any tax based on or measured by net
income
or otherwise in the nature of a net income tax, including,
without
limitation, any franchise tax or any similar tax based on
capital,
net worth or comparable basis for measurement and (b) any
tax
collected by a withholding on payments and which neither is
computed
by reference to the net income of the payee nor is in the nature
of
an advance collection of a tax based on or measured by the
net
income of the payee) or (2) change the basis of taxation of
payments
to such Lender of principal, fees, interest or any other
amount
payable hereunder or under any Loan Documents (other than in
respect
of (a) any tax based on or measured by net income or otherwise
in
the nature of a net income tax, including, without limitation,
any
franchise tax or any similar tax based on
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capital, net worth or comparable basis for measurement and (b)
any
tax collected by a withholding on payments and which neither
is
computed by reference to the net income of the payee nor is in
the
nature of an advance collection of a tax based on or measured by
the
net income of the payee);
(ii) impose, modify or hold applicable any reserve (except
any
reserve taken into account in the determination of the
applicable
LIBOR), special deposit, assessment or similar requirement
against
assets held by, or deposits in or for the account of, advances
or
loans by, or other credit extended by, any office of such
Lender,
including (without limitation) pursuant to Regulation D; or
(iii) impose on such Lender or the London interbank market
any
other condition with respect to any Loan Document;
and the result of any of the foregoing is to increase the cost
to such Lender of
making, renewing or maintaining Loans hereunder or the result of
any of the
foregoing is to reduce the rate of return on such Lender's
capital as a
consequence of its obligations hereunder, or the result of any
of the foregoing
is to reduce the amount of any payment (whether of principal,
interest or
otherwise) in respect of any of the Loans, then, in any such
case, Borrowers
shall jointly and severally pay such Lender, upon demand and
certification not
later than sixty (60) days following its receipt of notice of
the imposition of
such increased costs, such additional amount as will compensate
such Lender for
such additional cost or such reduction, as the case may be, to
the extent such
Lender has not otherwise been compensated, with respect to a
particular Loan,
for such increased cost as a result of an increase in the Base
Rate or the
LIBOR. An officer of the applicable Lender shall determine the
amount of such
additional cost or reduced amount using reasonable averaging and
attribution
methods and shall certify the amount of such additional cost or
reduced amount
to Borrowers, which certification shall include a written
explanation of such
additional cost or reduction to Borrowers. Such certification
shall be
conclusive absent manifest error. If a Lender claims any
additional cost or
reduced amount pursuant to this Section 3.8, then such Lender
shall use
reasonable efforts (consistent with legal and regulatory
restrictions) to
designate a different lending office or to file any certificate
or document
reasonably requested by Borrowers if the making of such
designation or filing
would avoid the need for, or reduce the amount of, any such
additional cost or
reduced amount and would not, in the sole discretion of such
Lender, be
otherwise disadvantageous to such Lender.
3.9. Basis for Determining Interest Rate Inadequate.
In the event that Agent or any Lender shall have determined
that:
(i) reasonable means do not exist for ascertaining the LIBOR
for any Interest Period; or
(ii) Dollar deposits in the relevant amount and for the
relevant maturity are not available in the London interbank
market
with respect to a
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proposed LIBOR Portion, or a proposed conversion of a Base
Rate
Portion into a LIBOR Portion; then
Agent or such Lender shall give Borrowers prompt written,
telephonic or
electronic notice of the determination of such effect. If such
notice is given,
(i) any such requested LIBOR Portion shall be made as a Base
Rate Portion,
unless Borrowers shall notify Agent no later than 11:00 a.m.
(Chicago, Illinois
time) three (3) Business Days prior to the date of such proposed
borrowing that
the request for such borrowing shall be canceled or made as an
unaffected type
of LIBOR Portion, and (ii) any Base Rate Portion which was to
have been
converted to an affected type of LIBOR Portion shall be
continued as or
converted into a Base Rate Portion, or, if Borrowers shall
notify Agent, no
later than 11:00 a.m. (Chicago, Illinois time) three (3)
Business Days prior to
the proposed conversion, shall be maintained as an unaffected
type of LIBOR
Portion.
3.10. Sharing of Payments, Etc.
If any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise) on
account of any Loan made by it in excess of its ratable share of
payments on
account of Loans made by all Lenders, such Lender shall
forthwith purchase from
each other Lender such participation in such Loan as shall be
necessary to cause
such purchasing Lender to share the excess payment ratably with
each other
Lender; provided, that if all or any portion of such excess
payment is
thereafter recovered from such purchasing Lender, such purchase
from each Lender
shall be rescinded and such Lender shall repay to the purchasing
Lenders the
purchase price to the extent of such recovery, together with an
amount equal to
such Lender's ratable share (according to the proportion of (i)
the amount of
such Lender's required repayment to (ii) the total amount so
recovered from the
purchasing Lender) of any interest or other amount paid or
payable by the
purchasing Lender in respect of the total amount so recovered.
Borrowers agree
that any Lender so purchasing a participation from another
Lender pursuant to
this Section 3.10 may, to the fullest extent permitted by law,
exercise all its
rights of payment (including the right of set-off) with respect
to such
participation as fully as if such Lender were the direct
creditor of each
Borrower in the amount of such participation. Notwithstanding
anything to the
contrary contained herein, all purchases and repayments to be
made under this
Section 3.10 shall be made through Agent.
SECTION 4. TERM AND TERMINATION
4.1. Term of Agreement.
Subject to the right of Lenders to cease making Loans to
Borrowers
during the continuance of any Default or Event of Default, this
Agreement shall
be in effect from the date hereof through and including
September 30, 2007 (the
"Term"), unless terminated as provided in Section 4.2
hereof.
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4.2. Termination.
4.2.1. Termination by Lenders. Agent may, and at the direction
of
Majority Lenders shall, terminate this Agreement upon notice
during the
continuance of an Event of Default.
4.2.2. Termination by Borrowers. Upon at least 30 days'
prior
written notice to Agent and Lenders, Borrowers may, at their
option,
terminate this Agreement; provided, however, no such termination
shall be
effective until Borrowers have paid or collateralized to
Agent's
reasonable satisfaction all of the Obligations in immediately
available
funds, all Letters of Credit and LC Guaranties have expired,
terminated or
have been cash collateralized (in an amount equal to 105% of the
Dollar
Equivalent of the LC Amount) to Agent's reasonable satisfaction
and
Borrowers have complied with subsection 3.2.5. Any notice of
termination
given by Borrowers shall be irrevocable unless all Lenders
otherwise agree
in writing and no Lender shall have any obligation to make any
Loans or
issue or procure any Letters of Credit or LC Guaranties on or
after the
termination date stated in such notice. Without limiting
Borrowers' right
to reduce the amount of the Revolving Loan Commitments pursuant
to
subsection 3.3.7, Borrowers may elect to terminate this
Agreement in its
entirety only. No section of this Agreement or type of Loan
available
hereunder may be terminated singly.
4.2.3. Effect of Termination. All of the Obligations shall
be
immediately due and payable upon the termination date stated in
any notice
of termination of this Agreement. All undertakings, agreements,
covenants,
warranties and representations of Borrowers contained in the
Loan
Documents shall survive any such termination and Agent shall
retain its
Liens in the Collateral and Agent and each Lender shall retain
all of its
rights and remedies under the Loan Documents notwithstanding
such
termination until all Obligations have been discharged or paid,
in full,
in immediately available funds, including, without limitation,
all
Obligations under subsection 3.2.5 resulting from such
termination.
Notwithstanding the foregoing or the payment in full of the
Obligations,
Agent shall not be required to terminate its Liens in the
Collateral
unless, with respect to any loss or damage Agent may incur as a
result of
dishonored checks or other items of payment received by Agent
from any
Borrower or any Account Debtor and applied to the Obligations,
Agent
shall, at its option, (i) have received a written agreement
satisfactory
to Agent, executed by Borrowers and by any Person whose loans or
other
advances to any Borrower are used in whole or in part to satisfy
the
Obligations, indemnifying Agent and each Lender from any such
loss or
damage or (ii) have retained cash Collateral or other Collateral
for such
period of time as Agent, in its reasonable discretion, may deem
necessary
to protect Agent and each Lender from any such loss or
damage.
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SECTION 5. SECURITY INTERESTS
5.1. Security Interest in Collateral.
To secure the prompt payment and performance to Agent, each
Lender
and each Affiliate of Agent and each Lender of the Obligations,
each Borrower
hereby grants to Agent for the benefit of itself, each Lender
and each Affiliate
of Agent and each Lender a continuing Lien upon all of such
Borrower's assets,
including all of the following Property and interests in
Property of such
Borrower, whether now owned or existing or hereafter created,
acquired or
arising and wheresoever located:
(i) Accounts;
(ii) Certificated Securities;
(iii) Chattel Paper;
(iv) Computer Hardware and Software and all rights with
respect thereto, including, any and all licenses, options,
warranties, service contracts, program services, test
rights,
maintenance rights, support rights, improvement rights,
renewal
rights and indemnifications, and any substitutions,
replacements,
additions or model conversions of any of the foregoing;
(v) Contract Rights;
(vi) Deposit Accounts;
(vii) Documents;
(viii) Equipment;
(ix) Financial Assets;
(x) Fixtures;
(xi) General Intangibles, including Payment Intangibles and
Software;
(xii) Goods (including all of its Equipment, Fixtures and
Inventory), and all accessions, additions, attachments,
improvements, substitutions and replacements thereto and
therefor;
(xiii) Instruments;
(xiv) Intellectual Property;
(xv) Inventory (including without limitation Bill and Hold
Inventory and Trailer Inventory);
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<PAGE>
(xvi) Investment Property;
(xvii) money (of every jurisdiction whatsoever);
(xviii) Letter-of-Credit Rights;
(xix) Payment Intangibles;
(xx) Security Entitlements;
(xxi) Software;
(xxii) Supporting Obligations;
(xxiii) Uncertificated Securities; and
(xxiv) to the extent not included in the foregoing, all
other
personal property of any kind or description;
together with all books, records, writings, data bases,
information and other
property relating to, used or useful in connection with, or
evidencing,
embodying, incorporating or referring to any of the foregoing,
and all Proceeds,
products, offspring, rents, issues, profits and returns of and
from any of the
foregoing; provided, that to the extent that the provisions of
any lease or
license of Computer Hardware and Software or Intellectual
Property expressly
prohibit (which prohibition is enforceable under applicable law)
any assignment
thereof, and the grant of a security interest therein, Agent
will not enforce
its security interest in the applicable Borrower's rights under
such lease or
license (other than in respect of the Proceeds thereof) for so
long as such
prohibition continues, it being understood that upon request of
Agent, such
Borrower will in good faith use reasonable efforts to obtain
consent for the
creation of a security interest in favor of Agent (and to
Agent's enforcement of
such security interest) in Agent's rights under such lease or
license, excluding
licenses to use JD Edwards World and One World software, for
which no Lien or
consent shall be requested or obtained.
5.2. Other Collateral.
5.2.1. Commercial Tort Claims. The applicable Borrower shall
promptly notify Agent in writing upon incurring or otherwise
obtaining a
Commercial Tort Claim after the Closing Date against any third
party and,
upon request of Agent, promptly enter into an amendment to this
Agreement
and do such other acts or things deemed appropriate by Agent to
give Agent
a security interest in any such Commercial Tort Claim. Each
Borrower
represents and warrants that as of the date of this Agreement,
to its
knowledge, it does not possess any Commercial Tort Claims other
than as
described on Exhibit 5.2.1 hereto.
5.2.2. Other Collateral. The applicable Borrower shall
promptly
notify Agent in writing upon acquiring or otherwise obtaining
any
Collateral after the date hereof consisting of Deposit
Accounts,
Investment Property, Letter-of-Credit Rights
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<PAGE>
or Electronic Chattel Paper and, upon the request of Agent,
promptly
execute such other documents, and do such other acts or things
deemed
appropriate by Agent to deliver to Agent control with respect to
such
Collateral; promptly notify Agent in writing upon acquiring or
otherwise
obtaining any Collateral after the date hereof consisting of
Documents or
Instruments and, upon the request of Agent, will promptly
execute such
other documents, and do such other acts or things deemed
appropriate by
Agent to deliver to Agent possession of such Documents which
are
negotiable and Instruments, and, with respect to nonnegotiable
Documents,
to have such nonnegotiable Documents issued in the name of
Agent; and with
respect to Collateral in the possession of a third party, other
than
Certificated Securities and Goods covered by a Document, obtain
an
acknowledgement from the third party that it is holding the
Collateral for
the benefit of Agent.
5.2.3. Apex Trailer Leases. Upon request by Agent, the
applicable
Borrower shall promptly take such action as is reasonably
required by
Agent to perfect Agent's Lien on the Apex Trailer Leases, which
shall
include without limitation, delivery to Agent of all original
Apex Trailer
Leases and the addition to each Apex Trailer Lease of a stamped
legend
indicating that such Apex Trailer Lease is subject to a Lien in
favor of
Agent. The applicable Borrower shall promptly deliver to Agent
such
information as Agent may reasonably request from time to time
with respect
to each Apex Trailer Lease.
5.3. Lien Perfection; Further Assurances.
Each Borrower shall execute such instruments, assignments or
documents as are necessary to perfect Agent's Lien upon any of
the Collateral
and shall take such other action as may be required to perfect
or to continue
the perfection of Agent's Lien upon the Collateral. Unless
prohibited by
applicable law, each Borrower hereby authorizes Agent to execute
and file any
UCC, PPSA or similar financing statement, including, without
limitation,
financing statements that indicate the Collateral (i) as all
assets of such
Borrower or words of similar effect, or (ii) as being of an
equal or lesser
scope, or with greater or lesser detail, than as set forth in
Section 5.1, on
such Borrower's behalf. Each Borrower also hereby ratifies its
authorization for
Agent to have filed in any jurisdiction any like financing
statements or
amendments thereto if filed prior to the date hereof. The
parties agree that a
carbon, photographic or other reproduction of this Agreement
shall be sufficient
as a financing statement and may be filed in any appropriate
office in lieu
thereof. At Agent's request, each Borrower shall also promptly
execute or cause
to be executed and shall deliver to Agent any and all documents,
instruments and
agreements deemed necessary by Agent, to give effect to or carry
out the terms
or intent of the Loan Documents.
5.4. Lien on Realty.
In addition to the Property described in Sections 5.1 and 5.2
and
the Property of each Guarantor described in the applicable
Collateral Documents,
the due and punctual payment and performance of the Obligations
shall also be
secured by the Lien created by Mortgages upon all real Property
of each Borrower
or Guarantor owned on the Closing Date.
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The applicable Borrower or Guarantor shall deliver to Agent such
other documents
as Agent and its counsel may reasonably request relating to the
real Property
subject to the Mortgages.
SECTION 6. COLLATERAL ADMINISTRATION
6.1. General.
6.1.1. Location of Collateral. All Collateral, other than
(i)
Inventory in transit, (ii) motor vehicles not included in
Trailer
Inventory or Apex Trailer Inventory, (iii) the Apex Trailer
Inventory or
(iv) Collateral in the possession of Agent, will at all times be
kept by a
Borrower or one of its Subsidiaries at one or more of the
business
locations set forth in Exhibit 6.1.1 hereto. Apex Trailer
Inventory shall
be located either (a) at one or more of the business locations
set forth
in Exhibit 6.1.1 hereto, or (b) at a location of a customer of
the
applicable Borrower, pursuant to a Apex Trailer Lease, as set
forth in
Exhibit 6.3.2 hereto, as updated by Borrowers providing prior
written
notice to Agent of any new location.
6.1.2. Insurance of Collateral. Borrowers shall maintain and pay
for
insurance upon all Collateral wherever located and with respect
to the
business of each Borrower and each of its Subsidiaries, covering
casualty,
hazard, public liability, workers' compensation, business
interruption and
such other risks in such amounts and with such insurance
companies as are
reasonably satisfactory to Agent. Borrowers shall deliver
certified copies
of such policies to Agent as promptly as practicable, with
satisfactory
lender's loss payable endorsements, naming Agent as a loss
payee, assignee
or additional insured, as appropriate, as its interest may
appear, showing
only such other loss payees, assignees and additional insureds
(i) as
required under contractual arrangements customary to Borrowers'
operations
(but not involving Indebtedness for Money Borrowed) or (ii) as
otherwise
are satisfactory to Agent and with respect to business
interruption
insurance, an executed collateral assignment thereof. Each
policy of
insurance or endorsement shall contain a clause requiring the
insurer to
give not less than 10 days' prior written notice to Agent in the
event of
cancellation of the policy for nonpayment of premium and not
less than 30
days' prior written notice to Agent in the event of cancellation
of the
policy for any other reason whatsoever and a clause specifying
that the
interest of Agent shall not be impaired or invalidated by any
act or
neglect of any Borrower, any of its Subsidiaries or the owner of
the
Property or by the occupation of the premises for purposes more
hazardous
than are permitted by said policy. All proceeds of business
interruption
insurance (if any) of each Borrower and its Subsidiaries shall
be remitted
to Agent for application to the outstanding balance of the
Revolving
Credit Loans, but shall not permanently reduce the Revolving
Loan
Commitments.
Unless Borrowers provide Agent with evidence of the
insurance
coverage required by this Agreement, Agent may, but need not,
purchase
insurance at Borrowers' joint and several expense to protect
Agent's
interests in the Properties of each Borrower and its
Subsidiaries. This
insurance may, but need not, protect the interests of each
Borrower and
its Subsidiaries. The coverage that Agent purchases
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may not pay any claim that a Borrower or any Subsidiary of such
Borrower
makes or any claim that is made against a Borrower or any such
Subsidiary
in connection with said Property. Borrowers may later cancel any
insurance
purchased by Agent, but only after providing Agent with evidence
that
Borrowers and their Subsidiaries have obtained insurance as
required by
this Agreement. If Agent purchases insurance, Borrowers will be
jointly
and severally responsible for the costs of that insurance,
including
interest and any other charges Agent may impose in connection
with the
placement of insurance, until the effective date of the
cancellation or
expiration of the insurance. The costs of the insurance may be
added to
the Obligations. The costs of the insurance may be more than the
cost of
insurance that Borrowers and the Subsidiaries may be able to
obtain on
their own.
6.1.3. Protection of Collateral. Neither Agent nor any Lender
shall
be liable or responsible in any way for the safekeeping of any
of the
Collateral or for any loss or damage thereto (except for
reasonable care
in the custody thereof while any Collateral is in Agent's or any
Lender's
actual possession) or for any diminution in the value thereof,
or for any
act or default of any warehouseman, carrier, forwarding agency,
or other
person whomsoever, but the same shall be at Borrowers' sole
risk.
6.2. Administration of Accounts.
6.2.1. Records, Schedules and Assignments of Accounts. Each
Company
shall keep accurate and complete records of its Accounts and all
payments
and collections thereon. Concurrently with the delivery of each
Borrowing
Base Certificate described in subsection 8.1.4, each Company
shall deliver
to Agent a detailed aged trial balance of all of its Accounts in
such form
and with such detail as may be reasonably requested by Agent
from time to
time ("Schedule of Accounts"), and upon Agent's request
therefor, such
additional information with respect to such Accounts as Agent
shall
reasonably request. Concurrently with the delivery of the
financial
statements to be delivered pursuant to subsection 8.1.3(i), each
Company
shall deliver to Agent a listing of Account Debtors, showing all
names and
addresses.
6.2.2. Intentionally Omitted.
6.2.3. Account Verification. At any time or times hereafter
that
Availability is less than $40,000,000 for 10 consecutive days or
an Event
of Default is in existence, any of Agent's officers, employees
or agents
shall have the right, in the name of Agent, any designee of
Agent or a
Company, to verify the validity, amount or any other matter
relating to
any Accounts by mail, telephone, electronic communication or
otherwise.
Each Company shall cooperate fully with Agent in an effort to
facilitate
and promptly conclude any such verification process.
6.2.4. Maintenance of Dominion Account. Each Company shall
maintain
a Dominion Account or Dominion Accounts pursuant to lockbox and
blocked
account arrangements acceptable to Agent with Bank and such
other banks as
may be selected by such Company. Each Company shall obtain the
agreement
by the applicable banks
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in favor of Agent to waive any recoupment, setoff rights, and
any security
interest in, or against, the funds so deposited. Each Company
shall issue
to any such banks an irrevocable letter of instruction directing
(i) such
banks located outside Canada to deposit all payments or other
remittances
received (other than funds in the Excluded Accounts not to
exceed $250,000
in the aggregate at any time) to the Dominion Account, (ii) such
banks
located in Canada to deposit all payments or other remittances
received
("Canadian Deposits") to the Dominion Account immediately upon
the receipt
of notice from Agent that a Dominion Period is in effect and
(iii) Bank
One, N.A. to deposit all payments or other remittances received
in the
Legacy Account ("Legacy Deposits") to the Dominion Account. All
funds
deposited in the Dominion Account shall be available to
Borrowers at their
discretion unless a Dominion Period is in effect. Upon the
occurrence of a
Dominion Event, Agent may, and at the direction of Majority
Lenders Agent
shall, send the appropriate notice to Borrowers to commence a
Dominion
Period. If a Dominion Period is in effect, (a) all Canadian
Deposits and
Legacy Deposits shall immediately become the property of Agent
in the
ratable benefit of Lenders and shall immediately be deposited to
the
Dominion Account and (b) all funds in the Dominion Account shall
(I)
immediately become the property of Agent, for the ratable
benefit of
Lenders and (II) be applied on account of the Obligations as
provided in
subsection 3.2.1. Agent shall have the right to invoke three
separate
Dominion Periods hereunder; once a third Dominion Period has
been
commenced, it shall remain in effect until the repayment in full
of the
Obligations. Agent assumes no responsibility for such lockbox
and blocked
account arrangements, including, without limitation, any claim
of accord
and satisfaction or release with respect to deposits accepted by
any bank
thereunder.
6.2.5. Collection of Accounts, Proceeds of Collateral. To
expedite
collection, each Company shall endeavor in the first instance to
make
collection of its Accounts for Agent. If no Default or Event of
Default is
in existence, (i) each Company shall directly collect
remittances on
account of its Accounts owing from retail customers at its
branch
locations and (ii) each Company agrees that all invoices
rendered and
other requests made by such Company for payment in respect of
Accounts
other than retail Accounts shall contain a written statement
directing
payment in respect of such Accounts to be paid to a lockbox
established
pursuant to subsection 6.2.4. All remittances received by each
Company on
account of Accounts, together with the proceeds of any other
Collateral,
shall be held as Agent's property, for its benefit and the
benefit of
Lenders, by such Company as trustee of an express trust for
Agent's
benefit and such Company shall immediately deposit same in kind
in a
blocked account or in the Dominion Account. Upon the occurrence
of a
Default or an Event of Default, each Company agrees that all
Accounts
(including retail Accounts) shall be collected by payment to a
lockbox in
the manner described in clause (ii) above. Agent retains the
right at all
times after the occurrence and during the continuance of a
Default or an
Event of Default to notify Account Debtors that each Company's
Accounts
have been assigned to Agent and to collect each Company's
Accounts
directly in its own name, or in the name of Agent's agent, and
to
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charge the collection costs and expenses, including attorneys'
fees,
jointly and severally to Borrowers.
6.2.6. Taxes. If an Account includes a charge for any tax
payable to
any governmental taxing authority, Agent is authorized, in its
sole
discretion, to pay the amount thereof to the proper taxing
authority for
the account of any Borrower and to charge any Borrower therefor,
except
for taxes that (i) are being actively contested in good faith
and by
appropriate proceedings and with respect to which the applicable
Company
maintains reasonable reserves on its books therefor and (ii)
would not
reasonably be expected to result in any Lien other than a
Permitted Lien.
In no event shall Agent or any Lender be liable for any taxes to
any
governmental taxing authority that may be due by any
Company.
6.3. Administration of Inventory.
6.3.1. Recordkeeping; Physicals. Each Company shall keep
separate
records of its Inventory, Trailer Inventory, Bill and Hold
Inventory and
Apex Trailer Inventory, which records shall be complete and
accurate and
complete in all material respects. Borrowers shall furnish to
Agent
separate Inventory, Trailer Inventory and Bill and Hold
Inventory reports
for each Company concurrently with the delivery of each
Borrowing Base
Certificate described in subsection 8.1.4, which reports will be
in such
other format and detail as Agent shall reasonably request. Each
Company
shall conduct a physical inventory no less frequently than
annually (or,
if an Event of Default is in existence, quarterly if so
requested by
Agent), and, in each case, shall provide to Agent a report based
on each
such physical inventory promptly thereafter, together with such
supporting
information as Agent shall reasonably request.
6.3.2. Apex Trailer Leases. Each Apex Trailer Lease in existence
as
of the Closing Date is listed on Exhibit 6.3.2. Exhibit 6.3.2
also shows
the name of each lessee. All lease payments will be directed to
the
lockbox and blocked account system in the manner set forth in
subsection
6.2.5. As of the Closing Date, all of the Apex Trailer Leases
are in full
force and effect without default by any party thereto. Apex
has
unencumbered title to each item of Apex Trailer Inventory
subject to an
Apex Trailer Lease and the unencumbered right to subject such
item of Apex
Trailer Inventory to such Apex Trailer Lease.
6.3.3. Vehicle Titles. Each Borrower that maintains Trailer
Inventory or Apex Trailer Inventory shall at all times maintain
in place
its current system for processing and safekeeping of
certificates of title
for used trailers constituting part of the Trailer Inventory or
the Apex
Trailer Inventory.
6.4. Administration of Equipment.
Each Company shall keep records of its Equipment which shall
be
complete and accurate in all material respects itemizing and
describing the
kind, type, quality, quantity and
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book value of its Equipment and all dispositions made in
accordance with
subsection 8.2.9 hereof.
6.5. Payment of Charges.
All amounts chargeable to any Borrower under Section 6 hereof
shall
be Obligations secured by all of the Collateral, shall be
payable on demand and
shall bear interest from the date such advance was made until
paid in full at
the rate applicable to Base Rate Portions from time to time.
SECTION 7. REPRESENTATIONS AND WARRANTIES
7.1. General Representations and Warranties.
To induce Agent and each Lender to enter into this Agreement and
to
make advances hereunder, each Borrower warrants, represents and
covenants to
Agent and each Lender that:
7.1.1. Qualification. Each Borrower and each of its Subsidiaries
is
a corporation, limited partnership or limited liability company
duly
organized, validly existing and in good standing under the laws
of the
jurisdiction of its incorporation or organization. Each
Borrower, Wabash
Canada and each of each Borrower's Domestic Subsidiaries is duly
qualified
and is authorized to do business and is in good standing as a
foreign
limited liability company, limited partnership or corporation,
as
applicable, in (a) as of the date hereof, each state or
jurisdiction
listed on Exhibit 7.1.1 hereto and (b) all states and
jurisdictions in
which the failure of such Borrower or any of its Subsidiaries to
be so
qualified could reasonably be expected to have a Material
Adverse Effect.
7.1.2. Power and Authority. Each Borrower and each of its
Subsidiaries is duly authorized and empowered to enter into,
execute,
deliver and perform this Agreement and each of the other Loan
Documents to
which it is a party. The execution, delivery and performance of
this
Agreement and each of the other Loan Documents have been duly
authorized
by all necessary corporate, partnership or other relevant action
and do
not and will not (i) require any consent or approval of the
shareholders,
partners or members of such Borrower or any of the shareholders,
partners
or members, as the case may be, of any Subsidiary of such
Borrower; (ii)
contravene such Borrower's or any of its Subsidiaries' charter,
articles
or certificate of incorporation, partnership agreement,
certificate of
formation, by-laws, limited liability agreement, operating
agreement or
other organizational documents (as the case may be); (iii)
violate, or
cause such Borrower or any of its Subsidiaries to be in default
under, any
provision of any law, rule, regulation, order, writ, judgment,
injunction,
decree, determination or award in effect having applicability to
such
Borrower or any of its Subsidiaries, the violation of which
could
reasonably be expected to have a Material Adverse Effect; (iv)
result in a
breach of or constitute a default under any indenture or loan or
credit
agreement or any other agreement, lease
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<PAGE>
or instrument to which such Borrower or any of its Subsidiaries
is a party
or by which it or its Properties may be bound or affected, the
breach of
or default under which could reasonably be expected to have a
Material
Adverse Effect; or (v) result in, or require, the creation or
imposition
of any Lien (other than Permitted Liens) upon or with respect to
any of
the Properties now owned or hereafter acquired by such Borrower
or any of
its Subsidiaries.
7.1.3. Legally Enforceable Agreement. This Agreement is, and
each of
the other Loan Documents when delivered under this Agreement
will be, a
legal, valid and binding obligation of each Borrower and each of
its
Subsidiaries party thereto, enforceable against it in accordance
with its
respective terms.
7.1.4. Capital Structure. Exhibit 7.1.4 hereto states, as of
the
date hereof, (i) the correct name of each of the Subsidiaries of
each
Borrower, its jurisdiction of incorporation or organization and
the
percentage of its Voting Stock owned by such Borrower, (ii) the
name of
each Borrower's and each of its Subsidiaries' corporate or Joint
Venture
relationships and the nature of the relationship, (iii) the
number, nature
and holder of all outstanding Securities of each Borrower other
than
Wabash and the holder of Securities of each Subsidiary of such
Borrower
and (iv) the number of authorized, issued and treasury
Securities of each
Borrower other than Wabash. Each Borrower has good title to all
of the
Securities it purports to own of each of such Subsidiaries, free
and clear
in each case of any Lien other than Permitted Liens. All such
Securities
have been duly issued and are fully paid and non-assessable.
Except as set
forth on Exhibit 7.1.4, as of the date hereof, there are no
outstanding
options to purchase, or any rights or warrants to subscribe for,
or any
commitments or agreements to issue or sell any Securities or
obligations
convertible into, or any powers of attorney relating to any
Securities of
any Borrower or any of its Subsidiaries. Except as set forth on
Exhibit
7.1.4, as of the date hereof, there are no outstanding
agreements or
instruments binding upon any of any Borrower's or any of its
Subsidiaries'
partners, members or shareholders, as the case may be, relating
to the
ownership of its Securities.
7.1.5. Names; Organization. As of the date hereof, neither
any
Borrower nor any of its Subsidiaries has been known as or has
used any
legal, fictitious or trade names except those listed on Exhibit
7.1.5
hereto. Except as set forth on Exhibit 7.1.5, as of the date
hereof
neither any Borrower nor any of its Subsidiaries has been the
surviving
entity of a merger or consolidation or has acquired all or
substantially
all of the assets of any Person. As of the date hereof, each
Borrower's
and each of its Subsidiaries' state(s) of incorporation or
organization,
Type of Organization and Organizational I.D. Number is set forth
on
Exhibit 7.1.5. As of the date hereof, the exact legal name of
each
Borrower and each of its Subsidiaries is set forth on Exhibit
7.1.5.
7.1.6. Business Locations; Agent for Process. Each Borrower's
and
each of its Subsidiary's chief executive office, location of
books and
records and other places of business are as listed on Exhibit
6.1.1
hereto, as updated from time to time by
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Borrowers in accordance with the provisions of subsection 6.1.1.
During
the preceding one-year period, neither any Borrower nor any of
its
Subsidiaries has had an office, place of business or agent for
service of
process, other than as listed on Exhibit 6.1.1. All tangible
Collateral is
and will at all times be kept by a Borrower and its Subsidiaries
in
accordance with subsection 6.1.1 or subsection 6.3.2. Except as
shown on
Exhibit 6.1.1 and Exhibit 6.3.2, as of the date hereof, no
Inventory is
stored with a bailee, distributor, warehouseman or similar
party, nor is
any Inventory consigned to any Person.
7.1.7. Title to Properties; Priority of Liens. Each Borrower
and
each of its Subsidiaries has good, indefeasible and marketable
title to
and fee simple ownership of, or valid and subsisting leasehold
interests
in, all of its real Property, and good title to all of the
Collateral and
all of its other Property, in each case, free and clear of all
Liens
except Permitted Liens. Each Borrower and each of its
Subsidiaries has
paid or discharged all lawful claims which, if unpaid, might
become a Lien
against any of such Borrower's or such Subsidiary's Properties
that is not
a Permitted Lien. The Liens granted to Agent under Section 5
hereof are
first priority Liens, subject only to Permitted Liens.
7.1.8. Accounts. Agent may rely, in determining which Accounts
are
Eligible Accounts, on all statements and representations made by
each
Company with respect to any Account or Accounts. With respect to
each of
each Company's Eligible Accounts, unless otherwise disclosed to
Agent in
writing:
(i) it is genuine and in all respects what it purports to
be,
and it is not evidenced by a judgment;
(ii) it arises out of a completed, bona fide sale and
delivery
of goods or rendition of services by such Company, in the
ordinary
course of its business and in accordance with the terms and
conditions of all purchase orders, contracts or other
documents
relating thereto and forming a part of the contract between
such
Company and the Account Debtor;
(iii) it is for a liquidated amount maturing as stated in
the
duplicate invoice covering such sale or rendition of services,
a
copy of which has been furnished or is available to Agent;
(iv) there are no facts, events or occurrences which in any
way impair the validity or enforceability of any Accounts or
tend to
reduce the amount payable thereunder from the face amount of
the
invoice and statements delivered or made available to Agent
with
respect thereto;
(v) to the best of such Company's knowledge, the Account
Debtor thereunder (1) had the capacity to contract at the time
any
contract or other document giving rise to the Account was
executed
and (2) such Account Debtor is Solvent; and
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(vi) to the best of such Company's knowledge, there are no
proceedings or actions which are threatened or pending against
the
Account De
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