EXHIBIT 10.27
EXECUTION COPY
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of April 11, 2002
among
WABASH NATIONAL CORPORATION,
as Borrower,
THE INSTITUTIONS FROM TIME TO TIME
PARTY HERETO, as Lenders,
BANK ONE, INDIANA, N.A.
as Administrative Agent
TABLE OF CONTENTS
PAGE
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ARTICLE I: DEFINITIONS...........................................................................................1
1.1 Certain Defined Terms........................................................................................1
1.2 References..................................................................................................24
ARTICLE II: THE CREDITS.........................................................................................25
2.1 (A) Revolving Loans.........................................................................................25
2.2 Rate Options for All Advances...............................................................................27
2.3 Prepayments of Loans........................................................................................27
2.4 Reduction of Revolving Loan Commitments.....................................................................29
2.5 Method of Borrowing Revolving Advances......................................................................29
2.6 Method of Selecting Types and Interest Periods for Advances; Determination of Applicable Margins............29
2.7 Minimum Amount of Each Revolving Advance....................................................................30
2.8 Method of Selecting Types and Interest Periods for Conversion and Continuation of Loans.....................31
2.9 Intentionally Omitted.......................................................................................31
2.10 Intentionally Omitted......................................................................................31
2.11 Default Rate...............................................................................................31
2.12 Method of Payment..........................................................................................31
2.13 Notes, Telephonic Notices..................................................................................32
2.14 Promise to Pay; Interest and Fees; Interest Payment Dates; Interest and Fee Basis; Loan Accounts...........33
2.15 Notification of Advances, Interest Rates, Prepayments and Aggregate Revolving Loan Commitment Reductions...34
2.16 Lending Installations......................................................................................34
2.17 Non-Receipt of Funds by the Administrative Agent...........................................................34
2.18 Termination Date...........................................................................................35
2.19 Letter of Credit Facility..................................................................................35
2.20 Revolver Letter of Credit Participation....................................................................35
2.21 Reimbursement Obligation...................................................................................36
2.22 Cash Collateral............................................................................................37
2.23 Letter of Credit Fees......................................................................................37
2.24 Indemnification; Exoneration...............................................................................38
ARTICLE III: CHANGE IN CIRCUMSTANCES............................................................................39
3.1 Yield Protection............................................................................................39
3.2 Changes in Capital Adequacy Regulations.....................................................................40
3.3 Availability of Types of Advances...........................................................................41
3.4 Funding Indemnification.....................................................................................41
3.5 Taxes.......................................................................................................41
3.6 Mitigation; Lender Statements; Survival of Indemnity........................................................44
ARTICLE IV: CONDITIONS PRECEDENT................................................................................45
4.1 Effectiveness...............................................................................................45
4.2 Each Revolving Loan and Revolver Letter of Credit...........................................................46
ARTICLE V: REPRESENTATIONS AND WARRANTIES.......................................................................46
5.1 Corporate Existence and Standing............................................................................46
5.2 Authorization and Validity..................................................................................47
5.3 No Conflict; Government Consent.............................................................................47
5.4 Financial Statements........................................................................................47
5.5 Material Adverse Change.....................................................................................48
5.6 Taxes.......................................................................................................48
5.7 Litigation and Contingent Liabilities.......................................................................48
5.8 Subsidiaries................................................................................................48
5.9 ERISA.......................................................................................................49
5.10 Accuracy of Information....................................................................................49
5.11 Securities Activities......................................................................................49
5.12 Material Agreements........................................................................................49
5.13 Compliance with Laws.......................................................................................49
5.14 Assets and Properties......................................................................................50
5.15 Statutory Indebtedness Restrictions........................................................................50
5.16 Environmental Matters......................................................................................50
5.17 Labor Matters..............................................................................................51
5.18 Foreign Employee Benefit Matters...........................................................................51
5.19 Patents, Trademarks, Permits, Etc..........................................................................51
5.20 Note Agreement Representations.............................................................................51
5.21 [Restructuring Fees........................................................................................52
ARTICLE VI: COVENANTS...........................................................................................52
6.1 Reporting...................................................................................................52
6.2 Affirmative Covenants.......................................................................................57
6.3 Negative Covenants..........................................................................................63
6.4 Financial Covenants.........................................................................................72
ARTICLE VII: DEFAULTS...........................................................................................74
7.1 Defaults....................................................................................................74
ARTICLE VIII: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES................................77
8.1 Remedies....................................................................................................77
8.2 Defaulting Lender...........................................................................................78
8.3 Amendments..................................................................................................79
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8.4 Preservation of Rights......................................................................................80
ARTICLE IX: GENERAL PROVISIONS..................................................................................80
9.1 Survival of Representations.................................................................................80
9.2 Governmental Regulation.....................................................................................80
9.3 Headings....................................................................................................80
9.4 Entire Agreement............................................................................................80
9.5 Several Obligations; Benefits of this Agreement.............................................................81
9.6 Expenses; Indemnification...................................................................................81
9.7 Numbers of Documents........................................................................................82
9.8 Accounting..................................................................................................82
9.9 Severability of Provisions..................................................................................83
9.10 Nonliability of Lenders....................................................................................83
9.11 CHOICE OF LAW..............................................................................................83
9.12 WAIVER OF JURY TRIAL.......................................................................................83
9.13 No Strict Construction.....................................................................................83
9.14 Supplemental Disclosure....................................................................................83
9.15 Amendment and Restatement of Original Credit Agreement.....................................................84
9.16 Release....................................................................................................84
ARTICLE X: THE ADMINISTRATIVE AGENT.............................................................................84
10.1 Appointment; Nature of Relationship........................................................................84
10.2 Powers.....................................................................................................85
10.3 General Immunity...........................................................................................85
10.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc...............................................85
10.5 Action on Instructions of Lenders..........................................................................86
10.6 Employment of Agents and Counsel...........................................................................86
10.7 Reliance on Documents; Counsel.............................................................................86
10.8 The Administrative Agent's Reimbursement and Indemnification...............................................86
10.9 Rights as a Lender.........................................................................................86
10.10 Lender Credit Decision....................................................................................87
10.11 Successor Administrative Agent............................................................................87
ARTICLE XI: SETOFF; RATABLE PAYMENTS............................................................................87
11.1 Setoff.....................................................................................................87
11.2 Intentionally Omitted......................................................................................87
11.3 Relations Among Lenders....................................................................................88
ARTICLE XII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS..................................................88
12.1 Successors and Assigns.....................................................................................88
12.2 Participations.............................................................................................88
12.3 Assignments................................................................................................89
12.4 Confidentiality............................................................................................90
12.5 Dissemination of Information...............................................................................91
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ARTICLE XIII: NOTICES...........................................................................................91
13.1 Giving Notice..............................................................................................91
13.2 Change of Address..........................................................................................91
ARTICLE XIV: COUNTERPARTS.......................................................................................91
iv
EXHIBITS AND SCHEDULES
EXHIBITS
EXHIBIT A -- Revolving Loan Commitments and Term Credit
(Definitions)
EXHIBIT B-1 -- Form of Revolving Note
(Definitions)
EXHIBIT B-2 -- Form of Term Note
(Definitions)
EXHIBIT B-3 -- Form of PIK Note
(Definitions)
EXHIBIT C -- Form of Assignment Agreement
(ss.ss. 2.19, 12.3)
EXHIBIT D -- List of Closing Documents
(ss. 4.1)
EXHIBIT E -- Form of Officer's Certificate
(ss.ss.4.2, 6.1(A)(iv))
EXHIBIT F -- Form of Compliance Certificate
(ss.ss.4.2, 6.1(A)(iv))
v
SCHEDULES
Schedule 1.1.1 -- Permitted Existing Contingent Obligations
(Definitions)
Schedule 1.1.2 -- Permitted Existing Indebtedness (Definitions)
Schedule 1.1.3 -- Permitted Existing Investments (Definitions)
Schedule 1.1.4 -- Permitted Existing Liens (Definitions)
Schedule 1.1.17 -- Covenant Case Projection
Schedule 2.1 -- Existing Letters of Credit (ss.2.1)
Schedule 5.7 -- Litigation; Loss Contingencies (ss.5.7)
Schedule 5.8 -- Subsidiaries (ss.5.8)
Schedule 5.14 -- Assets and Properties (ss.5.14)
Schedule 5.16 -- Environmental Matters (ss.5.16)
Section 6.2(A) -- Inactive Subsidiaries (ss.6.2(A))
Schedule 6.3(B) -- Asset Sales Under Consideration on the Effective
Date (ss.6.3(B))
Schedule 6.3(L) -- Other Indebtedness (ss.6.3(L))
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AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement dated as of April 11, 2002
is entered into among Wabash National Corporation, a Delaware corporation, the
institutions from time to time a party hereto as Lenders, whether by execution
of this Agreement or an assignment and acceptance pursuant to Section 12.3 and
Bank One, Indiana, N.A., in its capacity as Administrative Agent for itself and
the other Lenders. The parties hereto agree as follows:
ARTICLE I: DEFINITIONS
1.1 Certain Defined Terms. In addition to the terms defined in other
sections of this Agreement, the following terms used in this Agreement shall
have the following meanings, applicable both to the singular and the plural
forms of the terms defined:
As used in this Agreement:
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (a) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof
which constitutes a going business, whether through purchase of assets, merger
or otherwise or (b) directly or indirectly acquires (in one transaction or as
the most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
of voting power) of the outstanding partnership interests of a partnership or a
majority (by percentage or voting power) of the outstanding ownership interests
of a limited liability company.
"ADMINISTRATIVE AGENT" means Bank One in its capacity as contractual
representative for itself and the Lenders pursuant to Article X hereof and any
successor Administrative Agent appointed pursuant to Article X hereof.
"ADVANCE" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by the Lenders to the Borrower of the same Type
and, in the case of Eurodollar Rate Advances, for the same Interest Period.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of greater than ten percent (10%) or more of any class of voting
securities (or other voting interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
Capital Stock, by contract or otherwise. In addition, each director of the
Borrower or any Subsidiary of the Borrower shall be deemed to be an Affiliate of
the Borrower.
"AGREED CURRENCIES" means (i) Dollars and (ii) any other Eligible
Agreed Currency which the Borrower requests the Issuing Lender to include as an
Agreed Currency hereunder and which is acceptable to the Issuing Lender and the
Administrative Agent. For purposes of this definition, "ELIGIBLE AGREED
CURRENCY" means any currency other than Dollars (i) that is readily available,
(ii) that is freely traded, (iii) in which deposits are customarily offered to
banks in the London interbank market, (iv) which is convertible into Dollars in
the international interbank market and (v) as to which an Equivalent Amount may
be readily calculated.
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the
Revolving Loan Commitments of all the Lenders, as reduced from time to time
pursuant to the terms hereof. The initial Aggregate Revolving Loan Commitment is
$18,000,000.00, of which $10,444,995.69 is outstanding as of the Effective Date.
"AGREEMENT" means this Amended and Restated Credit Agreement, as it may
be amended, restated or otherwise modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting
principles as in effect from time to time in the United States, applied in a
manner consistent with those used in preparing the financial statements referred
to in Section 5.4 hereof.
"ALTERNATE BASE RATE" means, for any day, a fluctuating interest rate
per annum (rounded upwards, if necessary, to the next 1/16 of 1%) as shall be in
effect from time to time, which rate per annum shall at all times be equal to
the greatest of (a) the Prime Rate in effect on such day; and (b) the sum of
one-half of one percent (0.50%) and the Federal Funds Effective Rate in effect
on such day. For purposes hereof, "Prime Rate" shall mean the rate of interest
per annum publicly announced from time to time by Bank One or its parent as its
prime rate (it being acknowledged that such announced rate may not necessarily
be the lowest rate charged to any customer), and each change in the Prime Rate
shall be effective on the date such change is publicly announced as being
effective. "Federal Funds Effective Rate" shall mean, for any day, a fluctuating
interest rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent in its sole
discretion. If for any reason the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) that it is
unable to ascertain the Federal Funds Effective Rate for any reason, including
the inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms hereof, the Alternate Base Rate shall be
determined without regard to clause (b) of the first sentence of this definition
until the circumstances giving rise to such inability no longer exist. Any
change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective on the effective date of such
change.
"APPLICABLE LETTER OF CREDIT FEE" as at any date of determination,
shall be the rate per annum then applicable in the determination of the amount
payable under Section 2.23 with respect to Letters of Credit, determined in
accordance with the provisions of Section 2.6(b).
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"APPLICABLE MARGIN" shall have the meaning ascribed to that term in
Section 2.6(b)(i).
"APPLICABLE REVOLVING LOAN COMMITMENT FEE" as at any date of
determination, shall be the rate per annum then applicable in the determination
of the amount payable under Section 2.14(C) with respect to the unused Aggregate
Revolving Loan Commitment, determined in accordance with the provisions of
Section 2.6(b).
"AUTHORIZED OFFICER" means any of the chief executive officer, chief
financial officer, controller and treasurer of the Borrower, acting singly.
"AVAILABLE LIQUIDITY" means, for any period, the sum of the average
monthly balances during such period of (i) the amount by which (A) the Aggregate
Revolving Loan Commitment in effect during such period exceeds (B) the aggregate
outstanding amount of the Revolving Advances and Revolver L/C Obligations during
such period and (ii) "Availability" (as defined in the Receivables Purchase
Agreement) during such period.
"BANK ONE" means Bank One, Indiana, N.A. in its individual capacity,
together with its successors.
"BANK PRINCIPAL ALLOCATION" shall mean, at any time, the percentage
determined by dividing (a) the sum of (i) the outstanding principal amount of
all of the Term Loans (other than the PIK Notes) plus (ii) the amount then
available for drawing under all Term Letters of Credit plus (iii) the amount of
unpaid reimbursement obligations with respect to drawings under all Term Letters
of Credit by (b) the sum of (i) the outstanding principal amount of the Senior
Notes (excluding in any event the Related Notes) as of such time by (ii) the sum
of (A) the outstanding principal amount of all of the Term Loans (other than the
PIK Notes) plus (B) the amount then available for drawing under all Term Letters
of Credit plus (C) the amount of unpaid reimbursement obligations with respect
to drawings under all Term Letters of Credit.
"BASE RATE ADVANCE" means an Advance which bears interest at the
Alternate Base Rate plus the Applicable Margin.
"BASE RATE LOAN" means a Loan, or portion thereof, which bears interest
at the Alternate Base Rate plus the Applicable Margin.
"BENEFIT PLAN" means a defined benefit plan as defined in Section 3(35)
of ERISA (other than a Multiemployer Plan) in respect of which the Borrower or
any other member of the Controlled Group is, or within the immediately preceding
six (6) years was, an "employer" as defined in Section 3(5) of ERISA.
"BORROWER" means Wabash National Corporation, a Delaware corporation,
and its successors and assigns.
"BORROWING DATE" means a date on which an Advance is made hereunder.
"BORROWING NOTICE" means a Revolving Advance Borrowing Notice.
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"BUSINESS DAY" means (i) with respect to any borrowing, payment or rate
selection of Loans bearing interest at the Eurodollar Rate and with respect to
Revolver Letter of Credit denominated in Agreed Currency, a day (other than a
Saturday or Sunday) on which banks are open for business in Chicago, Illinois
and New York, New York and on which dealings in United States Dollars are
carried on in the London interbank market (and, if the Revolver Letter of Credit
which is the subject of such issuance or payment is denominated in euro, a day
upon which such clearing system as is determined by the Administrative Agent to
be suitable for clearing or settlement of the euro is open for business) and
(ii) for all other purposes a day (other than a Saturday or Sunday) on which
banks are open for business in Chicago, Illinois and New York, New York.
"CAPITAL EXPENDITURES" means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities and including
Capitalized Leases and purchase money Indebtedness to the extent permitted
hereunder) by the Borrower and its Subsidiaries during that period that, in
conformity with Agreement Accounting Principles, are required to be included in
or reflected by the property, plant, equipment or similar fixed asset accounts
reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally guaranteed by the government of the United States; (ii) domestic
and Eurodollar certificates of deposit and time deposits, bankers' acceptances
and floating rate certificates of deposit issued by any commercial bank
organized under the laws of the United States, any state thereof, the District
of Columbia, or its branches or agencies and having capital and surplus in an
aggregate amount not less than $500,000,000 (fully protected against currency
fluctuations for any such deposits with a term of more than ten (10) days);
(iii) shares of money market, mutual or similar funds having net assets in
excess of $500,000,000 maturing or being due or payable in full not more than
one hundred eighty (180) days after the Borrower's acquisition thereof and the
investments of which are limited to investment grade securities (i.e.,
securities rated at least Baa by Moody's Investors Service, Inc. or at least BBB
by Standard & Poor's Ratings Group) and (iv) commercial paper of United States
banks and bank holding companies and their subsidiaries and United States
finance, commercial, industrial or utility companies which, at the time of
acquisition, are rated A-1 (or better) by Standard & Poor's Ratings Group or P-1
(or better) by
4
Moody's Investors Service, Inc.; provided that the maturities of such Cash
Equivalents shall not exceed 365 days.
"CHANGE" is defined in Section 3.2 hereof.
"CHANGE OF CONTROL" means the acquisition by any Person, or two or more
Persons acting in concert, of beneficial ownership (within the meaning of Rule
13d-3 of the Commission under the Securities Exchange Act of 1934) of 30% or
more of the outstanding shares of voting stock of the Borrower.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COLLATERAL" means all real and personal property and interests in real
and personal property now owned or hereafter acquired by the Borrower or any of
the Borrower's Domestic Subsidiaries in or upon which a security interest or
lien is granted to the Collateral Agent, for the benefit of the Secured Parties,
whether under the Security Agreement, under any of the other Collateral
Documents or under any of the other Loan Documents.
"COLLATERAL AGENT" means Bank One, NA, a national banking association,
in its capacity as contractual representative for itself and the Secured Parties
pursuant to the terms of the Intercreditor Agreement and any successor
Collateral Agent appointed pursuant to the terms thereof.
"COLLATERAL DOCUMENTS" means the Security Agreement, the Pledge
Agreements, the Mortgages and all other security agreements, pledges, powers of
attorney, assignments, financing statements, vehicle titles and all other
instruments and documents delivered to the Collateral Agent pursuant to Section
6.2(O) hereof, together with all agreements, instruments and documents referred
to therein or contemplated thereby.
"COMMISSION" means the Securities and Exchange Commission and any
Person succeeding to the functions thereof.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
of Exhibit F delivered to the Administrative Agent and each Lender by the
Borrower pursuant to the provisions of this Agreement and covering, among other
things, its compliance with the financial covenants contained in Section 6.4 and
certain other provisions of this Agreement.
"COMPUTATION DATE" is defined in Section 2.3(B).
"CONSOLIDATED EBITDA" means, for any period, on a consolidated basis
for the Borrower and its consolidated Subsidiaries, the sum of the amounts for
such period, without duplication, of (i) Consolidated Operating Income, plus
(ii) charges against income for foreign taxes and U.S. income taxes to the
extent deducted in computing Consolidated Operating Income, plus (iii) Interest
Expense to the extent deducted in computing Consolidated Operating Income, plus
(iv) depreciation expense to the extent deducted in computing Consolidated
Operating Income, plus (v) amortization expense, including, without limitation,
amortization of goodwill and other intangible assets to the extent deducted in
computing Consolidated Operating
5
Income, plus (vi) other non-cash charges (in an aggregate amount not in excess
of $15,000,000 during any fiscal year of the Borrower) in accordance with
Agreement Accounting Principles to the extent deducted in computing Consolidated
Operating Income, minus (x) the total interest income of the Borrower and its
Subsidiaries to the extent included in computing Consolidated Operating Income
minus (y) the total tax benefit reported by the Borrower and its Subsidiaries to
the extent included in computing Consolidated Operating Income.
"CONSOLIDATED EQUITY" means as of the date of any determination
thereof, the total stockholders' equity of the Borrower and its Subsidiaries on
a consolidated basis, all as determined in accordance with Agreement Accounting
Principles.
"CONSOLIDATED OPERATING INCOME" means, with reference to any period,
the net operating income (or loss) of the Borrower and its Subsidiaries for such
period (taken as a cumulative whole on a consolidated basis) including without
limitation all restructuring expenses for such period (exclusive of "other
income/expenses" as reflected in the Borrower's consolidated statement of income
of the Borrower and its Subsidiaries for such period and related to
non-operating and non-recurring income and expenses), as determined in
accordance with Agreement Accounting Principles, after eliminating all
offsetting debits and credits between the Borrower and its Subsidiaries and all
other items required to be eliminated in the course of the preparation of
consolidated financial statements of the Borrower and its Subsidiaries in
accordance with Agreement Accounting Principles.
"CONSOLIDATED TAX ADJUSTED EQUITY" means as of the date of any
determination thereof, Consolidated Equity plus the cumulative federal, state
and local income tax benefit reported by the Borrower in accordance with
Agreement Accounting Principles.
"CONSOLIDATED TOTAL ASSETS" means as of the date of any determination
thereof, total assets of the Borrower and its Subsidiaries determined on a
consolidated basis in accordance with Agreement Accounting Principles.
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBS"), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental, Health or Safety Requirements of Law.
"CONTINGENT OBLIGATION", as applied to any Person, means any obligation
(except the endorsement in the ordinary course of business of negotiable
instruments for deposit or collection) of such Person guaranteeing or in effect
guaranteeing any Indebtedness, dividend or other obligation of any other Person
in any manner, whether directly or indirectly, including (without limitation)
obligations incurred through an agreement, contingent or otherwise, by such
Person:
(a) to purchase such Indebtedness or obligation or any
property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment
of such Indebtedness or obligation, or (ii) to maintain any working
capital or other balance sheet
6
condition or any income statement condition of any other Person or
otherwise to advance or make available funds for the purchase or
payment of such Indebtedness or obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such Indebtedness or
obligation of the ability of any other Person to make payment of the
Indebtedness or obligation; or
(d) otherwise to assure the owner of such Indebtedness or
obligation against loss in respect thereof.
In any computation of the Indebtedness or other liabilities of the obligor under
any Contingent Obligation, the Indebtedness or other obligations that are the
subject of such Contingent Obligation shall be assumed to be direct obligations
of such obligor.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any provision
of any equity or debt securities issued by that Person or any indenture,
mortgage, deed of trust, security agreement, pledge agreement, guaranty,
contract, undertaking, agreement or instrument, in any case in writing, to which
that Person is a party or by which it or any of its properties is bound, or to
which it or any of its properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Borrower; (ii) a partnership or
other trade or business (whether or not incorporated) which is under common
control (within the meaning of Section 414(c) of the Code) with the Borrower;
and (iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Code) as the Borrower, any corporation described in clause
(i) above or any partnership or trade or business described in clause (ii)
above.
"CONVERSION/CONTINUATION NOTICE" is defined in Section 2.8(D) hereof.
"CURE LOAN" is defined in Section 8.2 hereof.
"CUSTOMARY PERMITTED LIENS" means:
(i) Liens (other than Environmental Liens and Liens in favor
of the IRS or the PBGC) with respect to the payment of taxes,
assessments or governmental charges in all cases which are not yet due
or which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with Agreement Accounting
Principles;
(ii) statutory Liens of landlords and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen or workmen and other
similar Liens imposed by law created in the ordinary course of business
for amounts not yet due or which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
Agreement Accounting Principles;
7
(iii) Liens (other than Environmental Liens and Liens in favor
of the IRS or the PBGC) incurred or deposits made in the ordinary
course of business in connection with worker's compensation,
unemployment insurance or other types of social security benefits or to
secure the performance of bids, tenders, sales, contracts (other than
for the repayment of borrowed money), surety, appeal and performance
bonds; provided that (A) all such Liens do not in the aggregate
materially detract from the value of assets or property of the Borrower
and its Subsidiaries taken as a whole or materially impair the use
thereof in the operation of their businesses taken as a whole, and (B)
all Liens securing bonds to stay judgments or in connection with
appeals that do not secure at any time an aggregate amount exceeding
$5,000,000;
(iv) Liens arising with respect to zoning restrictions,
easements, licenses, reservations, covenants, rights-of-way, utility
easements, building restrictions and other similar charges or
encumbrances on the use of real property which do not interfere in any
material respect with the ordinary conduct of the business of the
Borrower or any Subsidiary of the Borrower;
(v) Liens of attachment or judgment with respect to judgments,
writs or warrants of attachment, or similar process against the
Borrower or any Subsidiary of the Borrower which do not constitute a
Default under Section 7.1(h);
(vi) Liens arising from leases, subleases or licenses granted
to others which do not interfere in any material respect with the
business of the Borrower or any Subsidiary of the Borrower; and
(vii) any interest or title of the lessor in the property
subject to any operating lease entered into by the Borrower or any
Subsidiary of the Borrower in the ordinary course of business.
"DEFAULT" means an event described in Article VII hereof.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is 91 days after the Termination Date.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLAR" and "$" means dollars in the lawful currency of the United
States of America.
"DOLLAR AMOUNT" of any currency at any date shall mean (i) the amount
of such currency if such currency is Dollars or (ii) the equivalent in such
currency of such amount of Dollars if such currency is any currency other than
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Administrative Agent for such currency on the
London market at 11:00 a.m., London time, on or as of the most recent
Computation Date provided for in Section 2.3(B).
8
"DOMESTIC SUBSIDIARY" means a Subsidiary organized under the laws of a
jurisdiction located in the United States of America, including, without
limitation, those Subsidiaries identified as "Domestic Subsidiaries" on Schedule
5.8 hereto.
"EFFECTIVE DATE" means April 12, 2002.
"EMU" means Economic and Monetary Union as contemplated in the Treaty
on European Union.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to federal, state and local laws or
regulations relating to or addressing pollution or protection of the
environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. ss. 9601 et seq., the Occupational Safety and Health Act of 1970,
29 U.S.C. ss. 651 et seq., and the Resource Conservation and Recovery Act of
1976, 42 U.S.C. ss. 6901 et seq., in each case including any amendments thereto,
any successor statutes, and any regulations or guidance promulgated thereunder,
and any state or local equivalent thereof.
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable requirement
of law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the closure of any property or the transfer, sale or
lease of any property or deed or title for any property for environmental
reasons, including, but not limited to, any so-called "Industrial Site Recovery
Act" or "Responsible Property Transfer Act."
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (including any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EQUIVALENT AMOUNT" of any currency with respect to any amount of
Dollars at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetical mean of the buy and sell
spot rates of exchange of the Administrative Agent for such other currency at
11:00 a.m., London time, on the date on or as of which such amount is to be
determined.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"EURO" and/or "EUR" means the euro referred to in Council Regulation
(EC) No. 1103/97 dated June 17, 1997 passed by the Council of the European
Union, or, if different, the then lawful currency of the member states of the
European Union that participate in the third stage of EMU.
9
"EURODOLLAR BASE RATE" means, with respect to a Eurodollar Rate Advance
for the relevant Interest Period, the applicable British Bankers' Association
Interest Settlement Rate for deposits in Dollars appearing on Reuters Screen
FRBD as of 11:00 a.m. (London time) two (2) Business Days prior to the first day
of such Interest Period, and having a maturity equal to such Interest Period,
provided that, (i) if Reuters Screen FRBD is not available to the Administrative
Agent for any reason, the applicable Eurodollar Base Rate for the relevant
Interest Period shall instead be the applicable British Bankers' Association
Interest Settlement Rate for deposits in Dollars as reported by any other
generally recognized financial information service as of 11:00 a.m. (London
time) two (2) Business Days prior to the first day of such Interest Period, and
having a maturity equal to such Interest Period, and (ii) if no such British
Bankers' Association Interest Settlement Rate is available to the Administrative
Agent, the applicable Eurodollar Base Rate for the relevant Interest Period
shall instead be the rate determined by the Administrative Agent to be the rate
at which Bank One or one of its affiliate banks offers to place deposits in
Dollars with first class banks in the London interbank market at approximately
11:00 a.m. (London time) two (2) Business Days prior to the first day of such
Interest Period, in the approximate amount of Bank One's relevant Eurodollar
Rate Loan, and having a maturity equal to such Interest Period.
"EURODOLLAR RATE" means, with respect to a Eurodollar Rate Advance for
the relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar
Base Rate applicable to such Interest Period, divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to such Interest Period,
plus (ii) the Applicable Margin. The Eurodollar Rate shall be rounded to the
next higher multiple of 1/16 of 1% if the rate is not such a multiple.
"EURODOLLAR RATE ADVANCE" means an Advance which bears interest at the
Eurodollar Rate.
"EURODOLLAR RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Eurodollar Rate.
"EXCESS CASH FLOW" means, without duplication, for any fiscal quarter
of the Borrower, an amount equal to:
(i) the sum of cash and Cash Equivalents of the Borrower and its
Subsidiaries on the last day of such fiscal quarter;
(plus) (ii) Available Liquidity on the last day of such fiscal quarter;
minus (iii) the Projected Liquidity Amount on the last day of such fiscal
quarter;
minus (iv) $5,000,000.
"EXCLUDED TAXES" means, in the case of each Lender or applicable
Lending Installation and the Administrative Agent, taxes imposed on its overall
net income, and franchise taxes imposed on it, by (i) the jurisdiction under the
laws of which such Lender or the Administrative Agent is incorporated or
organized or any political subdivision thereof or (ii) the jurisdiction in which
the Administrative Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located or any political subdivision
thereof.
10
"EXISTING LETTERS OF CREDIT" is defined in Section 2.1.
"EXISTING LOANS" is defined in Section 2.1.
"FEDERAL FUNDS EFFECTIVE RATE" shall have the meaning assigned to that
term in the definition of Alternate Base Rate above.
"FINANCE CONTRACTS" means any chattel paper originated by the Borrower
or any of its Subsidiaries pursuant to a bona fide sale in the ordinary course
of business with a customer or any Subsidiary.
"FIRST TIER FOREIGN SUBSIDIARY" means each Foreign Subsidiary with
respect to which any one or more of the Borrower or its Domestic Subsidiaries
directly owns or controls more than 50% of such Foreign Subsidiary's Capital
Stock.
"FLEET LEASE TRANSACTION" means (i) the lease transaction among Wabash
Statutory Trust - 2000 as lessor and Apex Trailer Leasing & Rentals, L.P. as
lessee under that certain Amended and Restated Equipment Lease dated as of March
30, 2001, as amended, restated, supplemented or otherwise modified from time to
time and all other investments and documents related thereto and (ii) the lease
transaction among Fleet Capital Corporation (as successor to BancBoston Leasing,
Inc.) as lessor and Apex Trailer Leasing & Rentals, L.P. as lessee under that
certain Master Lease Agreement dated as of September 5, 1997, as amended,
restated, supplemented or otherwise modified from time to time and all other
instruments and documents related thereto.
"FOREIGN EMPLOYEE BENEFIT PLAN" means any employee benefit plan as
defined in Section 3(3) of ERISA which is maintained or contributed to for the
benefit of the employees of the Borrower, any of its Subsidiaries or any members
of its Controlled Group and is not covered by ERISA pursuant to ERISA Section
4(b)(4).
"FOREIGN PENSION PLAN" means any employee benefit plan as described in
Section 3(3) of ERISA which (i) is maintained or contributed to for the benefit
of employees of the Borrower, any of its Subsidiaries or any of its ERISA
Affiliates, (ii) is not covered by ERISA pursuant to Section 4(b)(4) of ERISA,
and (iii) under applicable local law, is required to be funded through a trust
or other funding vehicle.
"FOREIGN SUBSIDIARY" means a Subsidiary of the Borrower which is not a
Domestic Subsidiary.
"FRUEHAUF PREFERRED STOCK" means the Series A 6% Cumulative Convertible
Exchangeable Preferred Stock of the Borrower.
"GOVERNMENTAL ACTS" is defined in Section 2.24(a) hereof.
"GOVERNMENTAL AUTHORITY" means any nation or government, any foreign,
federal, state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
11
"GROSS NEGLIGENCE" means recklessness, or actions taken or omitted with
conscious indifference to or the complete disregard of consequences. Gross
Negligence does not mean the absence of ordinary care or diligence or an
inadvertent act or inadvertent failure to act. If the term "gross negligence" is
used with respect to the Administrative Agent or any Lender or any indemnitee in
any of the other Loan Documents, it shall have the meaning set forth herein.
"GUARANTOR" means each Initial Guarantor and each other Domestic
Subsidiary that executes and delivers a supplemental guaranty pursuant to
Section 6.2(N) hereof and Section 19 of the Guaranty (a "SUPPLEMENTAL
GUARANTOR"), and in each case their respective successors and assigns.
"GUARANTY" means the unconditional guaranty of payment of the
Obligations, in form and substance satisfactory to the Administrative Agent,
executed by the Initial Guarantors and any Supplemental Guarantors pursuant to
Section 6.2(N), as the same may from time to time be amended, modified,
supplemented and/or restated.
"HEDGING OBLIGATIONS" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, commodity prices,
exchange rates or forward rates applicable to such party's assets, liabilities
or exchange transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
"INDEBTEDNESS" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money, including
reimbursement obligations (contingent or otherwise) with respect to
letters of credit;
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable arising in
the ordinary course of business but including, without limitation, all
liabilities created or arising under any conditional sale or other
title retention agreement with respect to any such property);
(c) its Capitalized Lease Obligations;
(d) all liabilities for borrowed money secured by any Lien
with respect to any property owned by such Person (whether or not it
has assumed or otherwise become liable for such liabilities);
(e) its Off-Balance Sheet Liabilities;
(f) its Receivables Facility Attributed Indebtedness; and
12
(g) any Contingent Obligation of such Person with respect to
liabilities of a type described in any of clauses (a) through (f)
hereof.
Indebtedness of any Person shall include all obligations of such Person of the
character described in clauses (a) through (g) to the extent such Person remains
legally liable in respect thereof notwithstanding that any such obligation is
deemed to be extinguished under Agreement Accounting Principles. In no event
shall Indebtedness include Unfunded Liabilities of any Plan of the Borrower and
its Subsidiaries, which amount, as of December 31, 2001, was zero.
"INDEMNIFIED MATTERS" is defined in Section 9.6(B) hereof.
"INDEMNITEES" is defined in Section 9.6(B) hereof.
"INITIAL GUARANTORS" means each Domestic Subsidiary (other than WNC,
WNC Receivables Management Corp., WNC Funding LLC and WNC Funding Manager Corp.)
in existence on the Effective Date.
"INITIAL REVOLVER LETTER OF CREDIT" means that certain Existing Letter
of Credit bearing number 82001398 and denominated in euro.
"INTERCREDITOR AGREEMENT" means the Intercreditor and Collateral Agency
Agreement dated as of the date hereof among the Collateral Agent, the
Administrative Agent and the Secured Parties, as such agreement may be amended,
restated, supplemented (including by way of joinder of additional parties
thereto in accordance with its terms) or otherwise modified from time to time.
"INTEREST COVERAGE RATIO" means, as of any date the same is to be
determined, the ratio of (i) Consolidated EBITDA as of such date for (A) in the
case of calculating Consolidated EBITDA for each relevant month in the
Borrower's fiscal year ending on or about December 31, 2002, the cumulative
period of months ending on and after April 30, 2002 and (B) in the case of
calculating Consolidated EBITDA for each month thereafter, the period of four
consecutive fiscal quarters then ending to (ii) Interest Expense during the same
applicable periods.
"INTEREST EXPENSE" means, for any period, the total interest expense of
the Borrower and its consolidated Subsidiaries, whether paid or accrued
(including the total interest expense under the Permitted Receivables Transfer),
including interest expense not payable in cash (including amortization or
write-off of debt discount and debt issuance costs and commissions and discounts
and other fees and charges associated with Indebtedness (including the
Obligations)), all as determined in conformity with Agreement Accounting
Principles.
"INTEREST PERIOD" means, with respect to a Eurodollar Rate Loan, a
period of one (1), two (2), three (3) or six (6) months commencing on a Business
Day selected by the Borrower pursuant to this Agreement. Such Interest Period
shall end on (but exclude) the day which corresponds numerically to such date
one, two, three or six months thereafter; provided, however, that if there is no
such numerically corresponding day in such next, second, third or sixth
succeeding month, such Interest Period shall end on the last Business Day of
such next, second, third or sixth succeeding month. If an Interest Period would
otherwise end on a day which is not a Business Day, such Interest Period shall
end on the next succeeding Business Day,
13
provided, however, that if said next succeeding Business Day falls in a new
calendar month, such Interest Period shall end on the immediately preceding
Business Day.
"INTEREST RATE AGREEMENTS" is defined in Section 6.3(P) hereof.
"INVESTMENT" means, with respect to any Person, (i) any purchase or
other acquisition by that Person any Indebtedness, Equity Interests or other
securities, or of a beneficial interest in any Indebtedness, Equity Interests or
other securities, issued by any other Person, (ii) any purchase by that Person
of all or substantially all of the assets of a business conducted by another
Person, and (iii) any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts
receivable, advances to employees and similar items made or incurred in the
ordinary course of business) or capital contribution by that Person to any other
Person, including all Indebtedness to such Person arising from a sale of
property by such Person other than in the ordinary course of its business.
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"ISSUING LENDER" means Bank One.
"LAFAYETTE PROPERTY" means all of the real property owned by Wabash
National, L.P. in Lafayette, Indiana which includes the central offices and
manufacturing facilities of the Borrower.
"L/C DRAFT" means a draft drawn on the Issuing Lender pursuant to a
Letter of Credit.
"L/C INTEREST" means a Revolver L/C Interest and a Term L/C Interest.
"L/C OBLIGATIONS" means, without duplication, an amount equal to the
sum of (i) the aggregate of the amount then available for drawing under each of
the Letters of Credit, (ii) the face amount of all outstanding L/C Drafts
corresponding to the Letters of Credit, which L/C Drafts have been accepted by
the Issuing Lender, (iii) the aggregate outstanding amount of all Reimbursement
Obligations at such time and (iv) the aggregate face amount of all Revolver
Letters of Credit requested by the Borrower but not yet issued (unless the
request for an unissued Revolver Letter of Credit has been denied).
"LENDERS" means the lending institutions listed on the signature pages
of this Agreement, including the Issuing Lender, and their respective successors
and assigns.
"LENDING INSTALLATION" means, with respect to a Lender or the
Administrative Agent, any office, branch, subsidiary or affiliate of such Lender
or the Administrative Agent.
"LETTER(S) OF CREDIT" means any or all of the Term Letters of Credit,
and the Revolver Letters of Credit to be issued by the Issuing Lender pursuant
to Section 2.19 hereof.
"LEVERAGE VALUATION RATIO" means, as of any date the same is to be
determined, the ratio of (i) the sum of the aggregate outstanding principal
amount of the Obligations (excluding L/C Obligations) and the Indebtedness under
the Note Agreements to (ii) Consolidated Total
14
Assets only to the extent consisting of cash and Cash Equivalents, net
inventory, net prepaid and other expenses and net property, plant and equipment
as of such date, in all cases as determined in accordance with Agreement
Accounting Principles.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement).
"LOAN(S)" means, with respect to a Lender, such Lender's portion of any
Advance described or made pursuant to Section 2.1 hereof, and collectively all
Term Loans and Revolving Loans, whether made or continued as or converted to
Base Rate Loans or Eurodollar Rate Loans.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Guaranty, the
Collateral Documents and all other documents, instruments and agreements
executed in connection therewith or contemplated thereby, including the letter
agreement regarding fees among the Administrative Agent, the Collateral Agent
and the Borrower, in each case as the same may be amended, restated or otherwise
modified and in effect from time to time.
"LOAN PARTIES" means the Borrower and each of the Guarantors.
"MARGIN STOCK" shall have the meaning ascribed to such term in
Regulation U.
"MATERIAL" means material in relation to the business, operations,
affairs, financial condition, assets, properties, or prospects of the Borrower
and its Subsidiaries taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance or
Properties of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of the Borrower and its Subsidiaries to perform their respective
obligations under the Loan Documents, or (c) the ability of the Lenders or the
Administrative Agent to enforce the Obligations in any material respect.
"MATERIAL REAL ESTATE PROPERTY" shall mean each individual parcel of
property owned by the Borrower or its Domestic Subsidiaries that has a net book
value in excess of $3,000,000, excluding therefrom any parcels that are
anticipated to be included in the SunTrust Sale and Leaseback.
"MORTGAGES" means the mortgages and deeds of trust from time to time
executed pursuant to the terms of Section 6.2(O) by one or more of the Loan
Parties in favor of the Collateral Agent for the benefit of the Secured Parties,
as amended, restated, supplemented or otherwise modified from time to time.
"MULTIEMPLOYER PLAN" means a "Multiemployer Plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by either the Borrower or any member of the Controlled
Group.
"NATIONAL CITY LEASE TRANSACTION" means the lease transaction among
National City Leasing Corporation as lessor and Apex Trailer Leasing & Rentals,
L.P. (as successor to Wabash
15
National Finance Corporation) as lessee under that certain Master Equipment
Lease Agreement No. 07008 dated as of December 30, 1996, as amended, restated,
supplemented or otherwise modified from time to time.
"NON PRO RATA REVOLVING LOAN" is defined in Section 8.2 hereof.
"NOTE AGREEMENTS" means, in the case of the holders of the Borrower's
Series A Senior Notes, those certain separate and several Amended and Restated
Note Purchase Agreements, each dated as of the Effective Date, between the
Borrower and such holders, in the case of the holders of the Borrower's Series C
through H Senior Notes, those certain separate and several Amended and Restated
Note Purchase Agreement, dated as of the Effective Date, between the Borrower
and such holders, and in the case of the holders of the Borrower's Series I
Senior Notes, that certain Amended and Restated Note Purchase Agreement, dated
as of the Effective Date, between the Borrower and such holders, in each case as
amended from time to time in accordance with Section 6.3 (T) hereof.
"NOTES" means the Revolving Notes, Term Notes and PIK Notes.
"NOTICE OF ASSIGNMENT" is defined in Section 12.3(B) hereof.
"OBLIGATIONS" means all Loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Borrower to the Administrative
Agent, any Lender, the Issuing Lender, any Affiliate of any of the foregoing or
any Indemnitee, of any kind or nature, present or future, arising under this
Agreement, the Notes, the PIK Notes or any other Loan Document, whether or not
evidenced by any note, guaranty or other instrument, whether or not for the
payment of money, whether arising by reason of an extension of credit, loan,
guaranty, indemnification, or in any other manner, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising and however acquired. The term
includes, without limitation, all interest, charges, expenses, fees, attorneys'
fees and disbursements, paralegals' fees (in each case whether or not allowed),
and any other sum chargeable to the Borrower under this Agreement or any other
Loan Document.
"OFF-BALANCE SHEET LIABILITIES" of a Person means (a) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to accounts or notes receivable sold by such Person or any of its Subsidiaries,
(b) any liability of such Person or any of its Subsidiaries under any sale and
leaseback transactions which do not create a liability on the consolidated
balance sheet of such Person, (c) any liability of such person or any of its
Subsidiaries under any so-called "synthetic" lease transaction, or (d) any
obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the consolidated balance sheets of such Person and its
Subsidiaries.
"ORIGINAL CREDIT AGREEMENT" means the Credit Agreement dated as of
September 30, 1997 among the Borrower, the financial institutions parties
thereto and the Administrative Agent, as amended by Amendment No. 1 dated as of
January 30, 1998, Amendment No. 2 dated as of September 30, 1999 and Amendment
No. 3 dated as of November 30, 2000.
16
"ORIGINATORS" means Wabash National, L.P. and NOAMTC, Inc., in their
capacities as parties to the Receivables Sale Agreement.
"OTHER TAXES" is defined in Section 3.5 hereof.
"PARTICIPANTS" is defined in Section 12.2(A) hereof.
"PAYMENT DATE" means the first Business Day of each calendar month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PERMITTED ACQUISITION" means any Acquisition made by the Borrower or
any of its Subsidiaries provided that: (a) as of the date of such Acquisition,
no Default or Unmatured Default shall have occurred and be continuing or would
result from such Acquisition or from the incurrence of any Indebtedness in
connection with such Acquisition; (b) prior to the date of such Acquisition,
such Acquisition shall have been approved by the board of directors and, if
applicable, the shareholders of the Person whose stock or assets are being
acquired in connection with such Acquisition and no claim or challenge has been
asserted or threatened by any shareholder or director of such Person which could
reasonably be expected to have a material adverse effect on such Acquisition or
a Material Adverse Effect; (c) as of the date of any such Acquisition, all
approvals required in connection with such Acquisition shall have been obtained
and (d) the Purchase Price paid or payable the Borrower and its Subsidiaries for
all Permitted Acquisitions during any fiscal year of the Borrower shall not
exceed $2,500,000.
"PERMITTED EXISTING CONTINGENT OBLIGATIONS" means the Contingent
Obligations of the Borrower and its Subsidiaries identified as such on Schedule
1.1.1 to this Agreement.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of the
Borrower and its Subsidiaries identified as such on Schedule 1.1.2 to this
Agreement.
"PERMITTED EXISTING INVESTMENTS" means the Investments of the Borrower
and its Subsidiaries identified as such on Schedule 1.1.3 to this Agreement.
"PERMITTED EXISTING LIENS" means the Liens on assets of the Borrower or
its Subsidiaries identified as such on Schedule 1.1.4 to this Agreement.
"PERMITTED RECEIVABLES TRANSFER" means (i) a sale or other transfer by
any Originator to WNC of "Receivables," and "Collections" under, and as such
terms are defined in, the Receivables Sale Agreement, in accordance with the
terms of the Receivables Sale Agreement, and/or (ii) a sale by WNC to purchasers
of "Purchaser Interests" under, and as such term is defined in, the Receivables
Purchase Agreement, in accordance with the terms of the Receivables Purchase
Agreement.
"PERSON" means any individual, corporation, firm, enterprise,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, limited liability company or other entity of any kind, or
any government or political subdivision or any agency, department or
instrumentality thereof.
17
"PIK NOTES" means those certain promissory notes of the Borrower
payable to the order of each Lender, in substantially the form of Exhibit B-3
hereto, evidencing the aggregate deferral fees payable by the Borrower to such
Lender under Section 2.14(C)(ii).
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA
in respect of which the Borrower or any member of the Controlled Group is, or
within the immediately preceding six (6) years was, an "employer" as defined in
Section 3(5) of ERISA.
"PLEDGE AGREEMENTS" means the pledge agreements from time to time
executed pursuant to the terms of clause (a) and clause (b) of Section 6.2(O) in
favor of the Collateral Agent for the benefit of the Secured Parties, as
amended, restated, supplemented or otherwise modified from time to time.
"PROJECTED LIQUIDITY AMOUNT" means, for any period, the applicable
amount so designated for such period in the Borrower's "Covenant Case
Projection" as set forth in Schedule 1.1.17 to this Agreement.
"PROPERTY" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"PRO RATA SHARE" means, at any particular time and with respect to any
Lender, the percentage obtained by dividing (A) the sum of such Lender's Term
Loans and Revolving Loan Commitment at such time (in each case, as adjusted from
time to time in accordance with the provisions of this Agreement) by (B) the sum
of the aggregate amount of all of the Term Loans and the Aggregate Revolving
Loan Commitment at such time; provided, however, if all of the Revolving Loan
Commitments are terminated pursuant to the terms of this Agreement, then "Pro
Rata Share" means the percentage obtained by dividing (x) the sum of (A) such
Lender's Term Loans and Revolving Loans, plus (B) such Lender's participations
in L/C Interests, by (y) the sum of (A) the aggregate outstanding amount of all
Term Loans and Revolving Loans, plus (B) the aggregate outstanding Dollar Amount
of all Revolver L/C Obligations.
"PURCHASE PRICE" means the total consideration and other amounts
payable in connection with any Acquisition, including, without limitation, any
portion of the consideration payable in cash, the value of any Capital Stock or
other equity interests of the Borrower or any Subsidiary issued as consideration
for such Acquisition, all Indebtedness and other monetary liabilities incurred
or assumed in connection with such Acquisition and all transaction costs and
expenses incurred in connection with such Acquisition.
"PURCHASERS" is defined in Section 12.3(A) hereof.
"RATE OPTION" means the Eurodollar Rate or the Alternate Base Rate.
"RECEIVABLES FACILITY ATTRIBUTED INDEBTEDNESS" means the amount of
obligations outstanding under a receivables purchase facility on any date of
determination that would be characterized as principal if such facility were
structured as a secured lending transaction rather than as a purchase.
18
"RECEIVABLES PURCHASE AGREEMENT" means that certain Receivables
Purchasing and Servicing Agreement dated as of April 11, 2002 by and among WNC,
as seller, Wabash Financing LLC, as servicer, WNC Receivables Management
Corporation, as independent member, General Electric Capital Corporation as the
sole initial purchaser and as agent, and the other purchasers from time to time
party thereto, as such agreement may be amended, restated or otherwise modified
from time to time, or any replacement or substitution therefor.
"RECEIVABLES PURCHASE DOCUMENTS" means the Receivables Sale Agreement
and the Receivables Purchase Agreement.
"RECEIVABLES SALE AGREEMENT" means that certain Receivables Sale and
Contribution Agreement, dated as of April 11, 2002, by and among the Borrower,
Wabash National, L.P., NOAMTC, Inc., and WNC, as such agreement may be amended,
restated or otherwise modified from time to time, or any replacement or
substitution therefor.
"REGISTER" is defined in Section 12.3(C) hereof.
"REGULATION T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks and nonbank, nonbroker lenders for the purpose of
purchasing or carrying Margin Stock.
"REGULATION X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"REIMBURSEMENT OBLIGATION" is defined in Section 2.21 hereof.
"RELATED NOTES" means the PIK Notes under and as defined in the Note
Agreements.
"RELEASE" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including the movement of Contaminants
through or in the air, soil, surface water or groundwater.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days after
such event occurs, provided, however, that a failure to meet the minimum funding
standards of Section 412 of the Code and of Section 302 of ERISA shall be a
Reportable Event regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or Section 412(d)
of the Code.
19
"REQUIRED LENDERS" means Lenders whose Pro Rata Shares, in the
aggregate, are greater than fifty percent (50%) of the sum of: (i) the aggregate
outstanding principal balance of all Term Loans plus (ii) the Aggregate
Revolving Loan Commitment in effect as of the date of determination, or, if the
Revolving Loan Commitments have been terminated pursuant to the terms of this
Agreement, the aggregate outstanding principal balance of the Revolving Loans
and the Revolver L/C Obligations; provided, however, that, if any of the
Revolving Lenders shall have failed to fund its Revolving Loan Pro Rata Share of
any Revolving Loan requested by the Borrower or any Lender shall have failed to
fund its participation in any L/C Obligations which such Lenders are obligated
to fund under the terms of this Agreement and such failure has not been cured,
then for so long as such failure continues, "REQUIRED LENDERS" excludes Lenders
whose failure to so fund has not been so cured.
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act of 1933, the Securities
Exchange Act 1934, Regulations T, U and X promulgated by the Board of Governors
of the Federal Reserve System, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or permit or environmental, labor,
employment, occupational safety or health law, rule or regulation, including
Environmental, Health or Safety Requirements of Law.
"RESERVE REQUIREMENT" means the maximum reserve requirement, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) with respect to "Eurocurrency liabilities" or in respect of any other
category of liabilities which includes deposits by reference to which the
interest rate on Eurodollar Rate Loans is determined or category of extensions
of credit or other assets which includes loans by a non-United States office of
any Lender to United States residents.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution,
direct or indirect, on account of any Equity Interests of the Borrower now or
hereafter outstanding, except a dividend payable solely in the Borrower's
Capital Stock (other than Disqualified Stock) or in options, warrants or other
rights to purchase such Capital Stock, (ii) any redemption, retirement, purchase
or other acquisition for value, direct or indirect, of any Equity Interests of
the Borrower or any of its Subsidiaries now or hereafter outstanding, other than
in exchange for, or out of the proceeds of, the substantially concurrent sale
(other than to a Subsidiary of the Borrower) of other Equity Interests of the
Borrower (other than Disqualified Stock), (iii) any redemption, purchase,
retirement, defeasance, prepayment or other acquisition for value, direct or
indirect, of any Indebtedness prior to the stated maturity thereof, other than
the Obligations and (iv) any payment of a claim for the rescission of the
purchase or sale of, or for material damages arising from the purchase or sale
of, any Indebtedness (other than the Obligations) or any Equity Interests of the
Borrower or any of the Borrower's Subsidiaries, or of a claim for reimbursement,
indemnification or contribution arising out of or related to any such claim for
damages or rescission.
20
"RESTRUCTURING TRANSACTION" means the transactions contemplated by this
Agreement and the Note Agreements which include the extension of the maturities
of certain of the Senior Notes, the execution and delivery of the Collateral
Documents, the execution and delivery of the Permitted Receivables Transfer, the
amendments and/or waivers to the Fleet Lease Transaction and all transactions
relating thereto.
"REVOLVER L/C DRAFT" means a draft drawn on the Issuing Lender pursuant
to a Revolver Letter of Credit.
"REVOLVER L/C INTEREST" shall have the meaning ascribed to such term in
Section 2.20.
"REVOLVER L/C OBLIGATIONS" means, without duplication, an amount equal
to the sum of (i) the aggregate of the Dollar Amount then available for drawing
under each of the Revolver Letters of Credit, (ii) the Dollar Amount equal to
the stated amount of all outstanding Revolver L/C Drafts corresponding to the
Revolver Letters of Credit, which Revolver L/C Drafts have been accepted by the
Issuing Lender, (iii) the aggregate outstanding Dollar Amount of all
Reimbursement Obligations at such time and (iv) the aggregate Dollar Amount
equal to the stated amount of all Revolver Letters of Credit requested by the
Borrower but not yet issued (unless the request for an unissued Revolver Letter
of Credit has been denied).
"REVOLVER LETTER(S) OF CREDIT" means any or all of the letters of
credit to be issued by the Issuing Lender pursuant to Section 2.19 hereof.
"REVOLVING ADVANCE" means a borrowing consisting of simultaneous
Revolving Loans of the same Type made to the Borrower by each of the Lenders
pursuant to Section 2.1(a), and for, in the case of Eurodollar Rate Advances,
the same Interest Period.
"REVOLVING ADVANCE BORROWING NOTICE" has the meaning specified in
Section 2.6(a).
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum
of (i) the outstanding principal amount of the Revolving Loans at such time,
plus (ii) the Revolver L/C Obligations at such time.
"REVOLVING LENDER" means any Lender with a Revolving Loan Commitment.
"REVOLVING LOAN" means a loan by a Lender to the Borrower as part of a
Revolving Advance.
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation of
such Lender to make Revolving Loans and to purchase participations in Revolver
Letters of Credit in an aggregate amount not exceeding the amount set forth on
Exhibit A to this Agreement opposite its name thereon under the heading
"Revolving Loan Commitment" or the signature page of the Assignment and
Acceptance by which it became a Lender, as such amount may be modified from time
to time pursuant to the terms of this Agreement or to give effect to any
applicable Assignment and Acceptance.
"REVOLVING LOAN PRO RATA SHARE" means, at any particular time and with
respect to any Lender, the percentage obtained by dividing (A) the then
aggregate amount of such Lender's
21
Revolving Loan Commitment (as adjusted from time to time in accordance with the
provisions in this Agreement) by (B) the Aggregate Revolving Loan Commitment at
such time; provided, however, if all of the Revolving Loan Commitments are
terminated pursuant to the terms of this Agreement, then "Revolving Loan Pro
Rata Share" means the percentage obtained by dividing (x) the sum of (A) such
Lender's Revolving Loans, plus (B) such Lender's share of the obligations to
purchase participations in Revolver Letters of Credit by (y) the sum of (A) the
aggregate outstanding amount of all Revolving Loans, plus (B) the aggregate
outstanding Dollar Amount of all Revolver Letters of Credit.
"REVOLVING NOTE" means a promissory note of the Borrower payable to the
order of any Revolving Lender, in substantially the form of Exhibit B-1 hereto,
evidencing the aggregate indebtedness of the Borrower to such Revolving Lender
resulting from the Revolving Loans made by such Revolving Lender to the
Borrower.
"RISK-BASED CAPITAL GUIDELINES" is defined in Section 3.2 hereof.
"SECURED OBLIGATIONS" has the meaning ascribed to such term in the
Intercreditor Agreement.
"SECURED PARTIES" has the meaning ascribed to such term in the
Intercreditor Agreement.
"SECURITY AGREEMENT" means that certain Security Agreement dated as of
the date hereof executed pursuant to the terms of Section 6.2(O) by the Borrower
and the Initial Guarantors in favor of the Collateral Agent for the benefit of
the Secured Parties, as amended, restated, supplemented or otherwise modified
from time to time.
"SENIOR NOTES" means $192,000,000 aggregate principal amount of the
Borrower's Senior Notes, Series A and Series C through I, due 2004-2008.
"SIGNIFICANT REAL ESTATE PROPERTY" shall mean each individual parcel
of property owned by the Borrower or its Domestic Subsidiaries that has a net
book value in excess of $1,000,000 and less than $3,000,000, excluding therefrom
any parcels that are anticipated to be included in the SunTrust Sale and
Leaseback.
"SINGLE EMPLOYER PLAN" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"SUBORDINATED DEBT" means, for any period, on a consolidated basis for
the Borrower and its Subsidiaries, the sum of Indebtedness of such Persons the
payment of which is subordinated to the payment of the Secured Obligations to
the written satisfaction of the Administrative Agent.
"SUBSIDIARY" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any company, partnership, limited liability company, association, joint
venture or similar business organization more than 50% of the ownership
interests having ordinary voting power of which shall at the time be so owned or
controlled.
22
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a direct or indirect Subsidiary of the Borrower.
"SUNTRUST SALE AND LEASEBACK" means that certain sale and leaseback of
certain real property owned by the Borrower and/or certain of its Domestic
Subsidiaries to be effected pursuant to that certain engagement letter agreement
between the Borrower and SunTrust Robinson Humphrey dated February 1, 2002.
"SUPPLEMENTAL GUARANTOR" has the meaning set forth in the definition of
"Guarantor" above.
"TANGIBLE ASSETS" means as of the date of any determination thereof,
with respect to any Person, total assets of such Person in accordance with
Agreement Accounting Principles, but excluding therefrom goodwill, patents,
patent applications, permits, trademarks, trade names, copyrights, licenses,
franchises, experimental expense, organizational expense, unamortized debt
discount and expense, the excess of cost of shares acquired over book value of
related assets and such other assets as are properly classified as "intangible
assets" in accordance with Agreement Accounting Principles.
"TAXES" is defined in Section 3.5(i).
"TERM CREDIT" means the Term Loans and the Term Letters of Credit.
"TERM L/C DRAFT" means a draft drawn on the Issuing Lender pursuant to
a Term Letter of Credit.
"TERM L/C INTEREST" shall have the meaning ascribed to such term in
Section 2.1.
"TERM L/C OBLIGATIONS" means, without duplication, an amount equal to
the sum of (i) the aggregate of the amount then available for drawing under each
of the Term Letters of Credit, (ii) the face amount of all outstanding Term L/C
Drafts corresponding to the Term Letters of Credit, which Term L/C Drafts have
been accepted by the Issuing Lender and (iii) the aggregate outstanding amount
of all reimbursement obligations of the Borrower with respect to such Term
Letters of Credit at such time.
"TERM LETTER(S) OF CREDIT" means any or all of the Existing Letters of
Credit (other than the Initial Revolver Letter of Credit).
"TERM LOANS" means any or all of the Existing Loans which are converted
into the Term Credit as described in Section 2.1(B).
"TERM LOAN LENDER" means any Lender which has outstanding Term Loans or
Term L/C Obligations owing from the Borrower.
"TERM NOTE" means a promissory note of the Borrower payable to the
order of any Term Loan Lender, in substantially the form of Exhibit B-2 hereto,
evidencing the aggregate indebtedness of the Borrower to such Term Loan Lender
resulting from the Term Loans deemed to have been made by such Term Loan Lender
to the Borrower.
23
"TERMINATION DATE" means the earlier of (a) March 30, 2004 and (b) the
date of termination of the Revolving Loan Commitments pursuant to Section 2.4 or
Section 8.1.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the Borrower or any member of the
Controlled Group from a Benefit Plan during a plan year in which the Borrower or
such Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of twenty percent (20%) of Benefit Plan participants
who are employees of the Borrower or any member of the Controlled Group; (iii)
the imposition of an obligation on the Borrower or any member of the Controlled
Group under Section 4041 of ERISA to provide affected parties written notice of
intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the institution by the PBGC of proceedings to
terminate a Benefit Plan; (v) any event or condition which could reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Benefit Plan; or (vi) the
partial or complete withdrawal of the Borrower or any member of the Controlled
Group from a Multiemployer Plan.
"TRANSFEREE" is defined in Section 12.5 hereof.
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of March 25, 1957,
as amended by the Single European Act 1986 and the Maastricht Treaty (which was
signed at Maastricht on February 7, 1992 and came into force on November 1,
1993), as amended from time to time.
"TYPE" means, (a) with respect to any Loan, its nature as a Base Rate
Loan or a Eurodollar Rate Loan and (b) with respect to any Advance, its nature
as a Base Rate Advance or a Eurodollar Rate Advance.
"UNFUNDED LIABILITIES" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"UNMATURED DEFAULT" means an event which, but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"WNC" means WNC Receivables, LLC, a Delaware limited liability company
and a wholly-owned Subsidiary of the Borrower.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. Any accounting terms used in
this Agreement which are not specifically defined herein shall have the meanings
customarily given them in accordance with generally accepted accounting
principles in existence as of the date hereof.
1.2 References. The existence throughout this Agreement of references
to the Borrower's Subsidiaries is for convenience only. Any references to
Subsidiaries of the Borrower
24
set forth herein shall not in any way be construed as consent by the
Administrative Agent or any Lender to the establishment, maintenance or
acquisition of any Subsidiary, except as may otherwise be permitted hereunder.
ARTICLE II: THE CREDITS
2.1 (A) Revolving Loans. Upon the satisfaction of the conditions
precedent set forth in Sections 4.1 and 4.2 hereof, from and including the date
of this Agreement and prior to the Termination Date, each Revolving Lender
severally and not jointly agrees, on the terms and conditions set forth in this
Agreement, to make Revolving Loans to the Borrower from time to time, in
Dollars, in an amount not to exceed in the aggregate at any one time outstanding
the amount of such Lender's Revolving Loan Commitment; provided, however, that
(i) the Aggregate Revolving Loan Commitment shall be deemed used from time to
time to the extent of the aggregate Revolver L/C Obligations then outstanding,
and such deemed use of the Aggregate Revolving Loan Commitment shall be applied
to the Revolving Lenders ratably according to their respective Revolving Loan
Commitments and (ii) at no time shall the Revolving Credit Obligations exceed
the Aggregate Revolving Loan Commitment. Each Revolving Advance under this
Section 2.1(A) shall consist of Revolving Loans made by each Revolving Lender
ratably in proportion to such Revolving Lender's respective Revolving Loan Pro
Rata Share. Subject to the terms of this Agreement, the Borrower may borrow,
repay and reborrow Revolving Loans at any time prior to the Termination Date.
The Revolving Loans made on the Effective Date, if any, shall initially be Base
Rate Loans and thereafter may be continued as Base Rate Loans or converted into
Eurodollar Rate Loans in the manner provided in Section 2.8 and subject to the
other conditions and limitations therein set forth and set forth in this Article
II. On the Termination Date, the outstanding principal balance of the Revolving
Loans shall be paid in full by the Borrower.
(B) Term Credit.
(a) Conversion to Term Credit. Prior to the Effective Date, certain
"Syndicated Loans" (the "Existing Loans") and "Letters of Credit" (as described
in Schedule 2.1 to this Agreement, the "Existing Letters of Credit") were
previously made to, or issued for the account of, the Borrower under, or
evidenced by, the Original Credit Agreement the aggregate outstanding principal
balance of which as of the Effective Date equals $117,444,995.69 (collectively,
the "Existing Credit"). Subject to terms and conditions set forth in this
Agreement, each of the parties hereto agrees that on the Effective Date (a)
$107,000,000 of the Existing Credit (consisting of $80,402,057 of the Existing
Loans and $26,597,943 of the Existing Letters of Credit) shall be reevidenced by
this Agreement as the Term Credit hereunder and the terms and conditions of such
Existing Credit shall be amended and restated in its entirety as set forth in
this Agreement and (b) the remaining $10,444,995.69 outstanding principal
balance of the Existing Credit (consisting of $9,497,943 of the Existing Loans
and $947,052.69 attributable to the Initial Revolver Letter of Credit) which is
outstanding as of the Effective Date shall continue in effect as Revolving Loans
and Revolver Letters of Credit hereunder. The parties hereto acknowledge and
agree that the "Commitment" of each Lender under the Original Credit Agreement
has been terminated to the extent and in the amount of the Term Credit
hereunder.
25
(b) Amount of Term Credit. Subject to the terms and conditions set
forth in this Agreement, One Hundred and Seven Million Dollars ($107,000,000) of
the Existing Credit are reevidenced hereby as the Term Credit held by each Term
Loan Lender in the amounts set forth on Exhibit A hereto.
(c) Repayment of the Term Credit. (i) The unpaid principal balance of
the Term Credit shall be repaid in twenty-one (21) consecutive monthly principal
installments, payable on the last Business Day of each calendar month,
commencing on April 30, 2002, and continuing thereafter until December 31, 2003,
and the Term Credit shall be permanently reduced by the amount of each
installment on the date payment thereof is made hereunder. Each monthly
installment on the Term Credit shall be in an aggregate principal amount equal
to the product of the Bank Principal Allocation times $1,166,667 with respect to
the first nine (9) installments and the product of the Bank Principal Allocation
times $4,958,333 with respect to the remaining twelve (12) installments. The
then outstanding principal balance of the Term Credit, if any, shall be due and
payable on the Termination Date. No installment of any Term Credit shall be
reborrowed once repaid.
(ii) Each Term Loan Lender is deemed to have automatically, irrevocably
and unconditionally purchased and received from the Issuing Lender an undivided
interest and participation in and to each Term Letter of Credit, the obligations
of the Borrower in respect thereof, and the liability of the Issuing Lender
thereunder (collectively, a "Term L/C Interest") in an amount equal to the
amount available for drawing under such Term Letter of Credit multiplied by such
Lender's Pro Rata Share.
The Issuing Lender will notify the Administrative Agent promptly upon
presentation to it of a Term L/C Draft or upon any other draw under a Term
Letter of Credit and the Administrative Agent will promptly notify each Term
Lender. On or before the Business Day on which the Issuing Lender makes payment
of each such Term L/C Draft or any other draw on a Term Letter of Credit, on
demand of the Issuing Lender received by each Term Lender not later than 11:00
a.m. (Chicago time) on such Business Day, each Term Lender shall make payment on
such Business Day to the Administrative Agent for the account of the Issuing
Lender, in immediately available funds in an amount equal to such Lender's Pro
Rata Share of the amount of such payment or draw.
Upon the Administrative Agent's receipt of funds as a result of the
Issuing Lender's payment on a Term L/C Draft or any other draw on a Term Letter
of Credit issued by the Issuing Lender, the Administrative Agent shall promptly
pay such funds to the Issuing Lender. The obligation of each Term Lender to pay
the Administrative Agent for the account of the Issuing Lender under this
Section 2.1 shall be unconditional, continuing, irrevocable and absolute. In the
event that any Term Lender fails to make payment to the Administrative Agent of
any amount due under this Section 2.1, the Administrative Agent shall be
entitled to receive, retain and apply against such obligation the principal and
interest otherwise payable to such Term Lender hereunder until the
Administrative Agent on behalf of the Issuing Lender receives such payment from
such Term Lender or such obligation is otherwise fully satisfied; provided,
however, that nothing contained in this sentence shall relieve such Term Lender
of its obligation to reimburse the Administrative Agent for such amount in
accordance with this Section 2.1.
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If any Term Letter of Credit expires without having been drawn upon or
is otherwise cancelled, the aggregate principal balance of the Term Credit shall
be reduced by the amount of such Term Letter of Credit and such amount may not
be reborrowed; the parties hereto acknowledging and agreeing that a Term Letter
of Credit may, upon request of the Borrower, be renewed for additional
consecutive periods of 12 months or less (but not beyond the date that is
twenty-one (21) days prior to the Termination Date) unless the Issuing Lender
notifies the beneficiary thereof at least 30 days prior to the then-applicable
expiry date that such Term Letter of Credit will not be renewed (it being
understood and agreed that the Issuing Lender shall not send such a notice
unless (x) an Unmatured Default or Default has occurred and is continuing or (y)
such renewal would cause such Term Letter of Credit to expire on a date that is
beyond twenty-one (21) days prior to the Termination Date).
(iii) Notwithstanding anything to the contrary herein or in any
application for a Term Letter of Credit, to the extent the then outstanding
principal balance of the Term Loans have been repaid in full, the Borrower
shall, upon the Administrative Agent's demand, deliver to the Collateral Agent
for the benefit of the Term Lenders, cash, or other collateral of a type
satisfactory to the Required Lenders, having a value, as determined by such
Lenders, equal to the aggregate outstanding Term L/C Obligations of the
Borrower. Any such collateral shall be held by the Collateral Agent in a
separate account appropriately designated as a cash collateral account in
relation to this Agreement and the Term Letters of Credit and retained by the
Collateral Agent for the benefit of the Term Lenders as collateral security for
the Borrower's obligations in respect of this Agreement and each of the Term
Letters of Credit and Term L/C Drafts. Such amounts shall be applied to
reimburse the Administrative Agent or the Issuing Lender, as applicable, for
drawings or payments under or pursuant to Term Letters of Credit or Term L/C
Drafts, or if no such reimbursement is required, to payment of such of the other
Obligations as the Administrative Agent shall determine.
(iv) In addition to the scheduled payments on the Term Credit, the
Borrower (a) may make the voluntary prepayments described in Section 2.3(A) for
credit against the scheduled payments on the Term Credit pursuant to Section
2.3(A) and (b) shall make the mandatory prepayments prescribed in Section 2.3(B)
for credit against the scheduled payments on the Term Credit pursuant to Section
2.3(B).
2.2 Rate Options for All Advances. The Advances may be Base Rate
Advances or Eurodollar Rate Advances, or a combination thereof, selected by the
Borrower in accordance with Sections 2.6 and 2.8. The Borrower may select, in
accordance with Sections 2.6 and 2.8, Rate Options and Interest Periods
applicable to portions of the Revolving Loans and the Term Loans; provided that
there shall be no more than six (6) Interest Periods in effect with respect to
all of the Loans at any one time.
2.3 Prepayments of Loans.
(A) Optional Prepayments. Subject to Section 3.4 and the requirements
of Section 2.7, the Borrower may (a) following notice given to the
Administrative Agent by the Borrower, by not later than 10:00 a.m. (Chicago
time) on the date of the proposed prepayment, such notice specifying the
aggregate principal amount of and the proposed date of the prepayment, and if
such notice is given the Borrower shall, prepay the outstanding principal
amounts of the Base
27
Rate Advances in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid and (b) following notice
given to the Administrative Agent by the Borrower by not later than 10:00 a.m.
(Chicago time) on, if the Advance to be prepaid is a Eurodollar Rate Advance,
the fifth Business Day preceding the date of the proposed prepayment, such
notice specifying the Advance to be prepaid and the proposed date of the
prepayment, and, if such notice is given, the Borrower shall, prepay the
outstanding principal amounts of the Eurodollar Rate Loans comprising a
Eurodollar Rate Advance in whole (and not in part), together with accrued
interest to the date of such prepayment on the principal amount prepaid;
provided that the Borrower may not so prepay any Advances consisting of Term
Loans unless such prepayment is made in accordance with the terms of the
Intercreditor Agreement. Each partial prepayment shall be in an aggregate
principal amount not less than $1,000,000 and `an integral multiple of
$1,000,000. Optional prepayments of the Loans shall be applied to each of the
then remaining installments payable under the Term Loans, on a ratable basis
based upon the respective amounts of such installments and, upon payment in full
of the Term Loans, shall be applied to then outstanding Revolving Loans.
(B) Mandatory Prepayments.
(a) Intentionally Omitted.
(b) Intentionally Omitted.
(c) By no later than three (3) Business Days after the end of each
fiscal quarter of the Borrower (beginning with the fiscal quarter ending on June
30, 2002), the Borrower shall make a mandatory prepayment of the Term Credit in
an aggregate amount equal to the product of the Bank Principal Allocation times
the Excess Cash Flow, if positive, for such prior fiscal quarter.
(d) Nothing in this Section 2.3(B) shall be construed to constitute the
Lenders' consent to any transaction referred to in clauses (a), (b) and (c)
above which is not expressly permitted by the terms of this Agreement.
(e) Following the payment in full of the Term Loans, the amount of each
such mandatory prepayment shall be applied to cash collateralize the Term L/C
Obligations as contemplated by Section 2.1(c), and following the cash
collateralization in full of the Term L/C Obligations, the amount of each such
mandatory prepayment shall be applied to repay Revolving Loans (and shall reduce
Revolving Loan Commitments) and following the payment in full of the Revolving
Loans, the amount of each such mandatory prepayment shall be applied first to
interest on the Reimbursement Obligations, then to principal on the
Reimbursement Obligations, then to fees on account of Letters of Credit and
then, to the extent any Revolver L/C Obligations are contingent, deposited with
the Collateral Agent as cash collateral in respect of such Revolver L/C
Obligations.
(f) On the date any such mandatory prepayment is received by the
Administrative Agent, such prepayment shall be applied first to Base Rate Loans
and to any Eurodollar Rate Loans maturing on such date and then to subsequently
maturing Eurodollar Rate Loans.
(g) The Administrative Agent will determine the Dollar Amount of:
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(i) each Letter of Credit on the date three (3) Business Days
prior to the issuance date, or, if applicable, renewal date of such
Letter of Credit; and
(ii) all outstanding L/C Obligations on and as of the last
Business Day of each calendar month and on any other Business Day
elected by the Administrative Agent in its discretion or upon
instruction by the Required Lenders.
Each day upon or as of which the Administrative Agent determines Dollar Amounts
as described in the preceding clauses (i) and (ii) is herein described as a
"COMPUTATION DATE" with respect to each Letter of Credit for which a Dollar
Amount is determined on or as of such day.
If at any time and for any reason (other than as the result of
fluctuations in currency exchange rates) the Dollar Amount of the Revolving
Credit Obligations (calculated, with respect to all Revolver L/C Obligations
denominated in Agreed Currencies other than Dollars, as of the most recent
Computation Date with respect to each such Revolver L/C Obligation) is greater
than the Aggregate Commitment, the Borrowers shall immediately make a mandatory
prepayment of the Obligations in an amount equal to such excess. The Borrower
shall also make all prepayments required under Section 2.3(B).
If, on any Computation Date, as a result of fluctuations in currency
exchange rates the Dollar Amount of the Revolving Credit Obligations exceeds one
hundred five percent (105%) of the Aggregate Commitment, the Administrative
Agent shall so notify the Borrower and the Lenders of such occurrence and the
Borrower shall immediately make a mandatory prepayment of the Obligations in an
aggregate principal amount sufficient to eliminate any such excess.
2.4 Reduction of Revolving Loan Commitments. The Borrower may
permanently reduce the Aggregate Revolving Loan Commitment in whole, or in part
ratably among the Lenders, in an aggregate minimum amount of $1,000,000 and
integral multiples of $1,000,000 in excess of that amount, upon at least five
Business Days' prior written notice to the Administrative Agent, which notice
shall specify the amount of any such reduction; provided, however, that the
amount of the Aggregate Revolving Loan Commitment may not be reduced below the
aggregate principal amount of the outstanding Revolving Credit Obligations. All
accrued commitment fees shall be payable on the effective date of any
termination of the obligations of the Revolving Lenders to make Revolving Loans
hereunder.
2.5 Method of Borrowing Revolving Advances. The Administrative Agent
shall notify each Revolving Lender by 11:00 a.m. (Chicago time) of each
Revolving Advance on the Borrowing Date of each Base Rate Advance and three
Business Days before the Borrowing Date of each Eurodollar Rate Advance and, not
later than 12:00 noon (Chicago time) on each Borrowing Date, each Revolving
Lender shall make available its Revolving Loan or Loans, in funds immediately
available in Chicago to the Administrative Agent at its address specified
pursuant to Article XIII hereof. The Administrative Agent will promptly make the
funds so received from the Revolving Lenders available to the Borrower.
2.6 Method of Selecting Types and Interest Periods for Advances;
Determination of Applicable Margins.
29
(a) Method of Selecting Types and Interest Periods for Advances. For
all Revolving Loans, the Borrower shall select the Type of Advance and, in the
case of each Eurodollar Rate Advance, the Interest Period applicable to each
Advance from time to time. The Borrower shall give the Administrative Agent
irrevocable notice (a "REVOLVING ADVANCE BORROWING Notice") not later than 10:00
a.m. (Chicago time) on the Borrowing Date of each Base Rate Advance and three
Business Days before the Borrowing Date for each Eurodollar Rate Advance,
specifying: (i) the Borrowing Date (which shall be a Business Day) of such
Advance; (ii) the aggregate amount of such Advance; (iii) the Type of Advance
selected; and (iv) in the case of each Eurodollar Rate Advance, the Interest
Period applicable thereto. For all Loans, the Borrower shall select Interest
Periods so that, to the best of the Borrower's knowledge, it will not be
necessary to prepay all or any portion of any Eurodollar Rate Advance prior to
the last day of the applicable Interest Period in order to make mandatory
prepayments as required pursuant to the terms hereof. Each Base Rate Advance
shall bear interest from and including the date of the making of such Advance to
(but not including) the date of repayment thereof at the interest rate
determined as applicable to such Base Rate Advance, changing when the Alternate
Base Rate changes. Changes in the rate of interest on that portion of any
Advance maintained as a Base Rate Loan will take effect simultaneously with each
change in the Alternate Base Rate. Each Eurodollar Rate Advance shall bear
interest from and including the first day of the Interest Period applicable
thereto to (but not including) the last day of such Interest Period at the
interest rate determined as applicable to such Eurodollar Rate Advance.
(b) Determination of Applicable Margin, Applicable Letter of Credit Fee
and Applicable Revolving Loan Commitment Fee. As used in this Section 2.6(b) and
in this Agreement, the following terms shall have the following meanings:
"Applicable Margin", "Applicable Revolving Loan Commitment Fee" and
"Applicable Letter of Credit Fee" shall mean the per annum rates
constituting the Applicable Margin, Applicable Revolving Loan
Commitment Fee and Applicable Letter of Credit Fee, respectively, as
set forth below:
- -------------------------------------------------------------------------------------------------------------------------
APPLICABLE APPLICABLE APPLICABLE
MARGIN WITH MARGIN WITH MARGIN WITH APPLICABLE
RESPECT TO RESPECT TO RESPECT TO MARGIN WITH APPLICABLE APPLICABLE
BASE RATE BASE RATE EURODOLLAR RESPECT TO APPLICABLE LETTER OF LETTER OF
LOANS WHICH LOANS WHICH RATE LOANS EURODOLLAR REVOLVING CREDIT FEE CREDIT FEE
ARE ARE WHICH ARE RATE LOANS LOAN FOR REVOLVER FOR TERM
REVOLVING TERM REVOLVING WHICH ARE COMMITMENT LETTERS OF LETTERS OF
LOANS LOANS LOANS TERM LOANS FEE CREDIT CREDIT
- -------------------------------------------------------------------------------------------------------------------------
1.50% 1.50% 3.55% 3.80% 0.50% 3.55% 3.80%
- -------------------------------------------------------------------------------------------------------------------------
2.7 Minimum Amount of Each Revolving Advance. Each Eurodollar Rate
Advance shall be in the minimum amount of $1,000,000 (and in multiples of
$1,000,000 if in excess thereof), and each Base Rate Advance shall be in the
minimum amount of $1,000,000 (and in multiples of $1,000,000 if in excess
thereof), provided, however, that any Base Rate Advance may be in the amount of
the unused Aggregate Revolving Loan Commitment if such amount is less than
$1,000,000.
30
2.8 Method of Selecting Types and Interest Periods for Conversion and
Continuation of Loans.
(A) Right to Convert. The Borrower may elect from time to time, subject to
the provisions of Section 2.6, Section 2.7 and this Section 2.8, to convert all
or any part of a Loan of any Type into any other Type or Types of Loans;
provided that any conversion of any Eurodollar Rate Advance shall be made on,
and only on, the last day of the Interest Period applicable thereto.
(B) Automatic Conversion and Continuation. Base Rate Loans shall continue
as Base Rate Loans unless and until such Base Rate Loans are converted into
Eurodollar Rate Loans. Eurodollar Rate Loans shall continue as Eurodollar Rate
Loans until the end of the then applicable Interest Period therefor, at which
time such Eurodollar Rate Loans shall be automatically converted into Base Rate
Loans unless the Borrower shall have given the Administrative Agent notice in
accordance with Section 2.8(D) requesting that, at the end of such Interest
Period, such Eurodollar Rate Loans continue as a Eurodollar Rate Loan.
(C) No Conversion Post-Default or Post-Unmatured Default. Notwithstanding
anything to the contrary contained in Section 2.8(A) or Section 2.8(B), no Loan
may be converted into or continued as a Eurodollar Rate Loan except with the
consent of the Required Lenders when any Default or Unmatured Default has
occurred and is continuing.
(D) Conversion/Continuation Notice. The Borrower shall give the
Administrative Agent irrevocable notice (a "CONVERSION/CONTINUATION NOTICE") of
each conversion of a Base Rate Loan into a Eurodollar Rate Loan or continuation
of a Eurodollar Rate Loan not later than 10:00 a.m. (Chicago time) three
Business Days prior to the date of the requested conversion or continuation,
specifying: (1) the requested date (which shall be a Business Day) of such
conversion or continuation; (2) the amount and Type of the Loan to be converted
or continued; and (3) the amounts of Eurodollar Rate Loan(s) into which such
Loan is to be converted or continued and the duration of the Interest Periods
applicable thereto.
2.9 Intentionally Omitted.
2.10 Intentionally Omitted.
2.11 Default Rate. After the occurrence and during the continuance of an
Unmatured Default or a Default, at the option of the Administrative Agent or at
the direction of the Required Lenders, the interest rate(s) applicable to the
Obligations and the letter of credit fee payable under Section 2.23 with respect
to Letters of Credit shall be increased by two percent (2.0%) per annum above
the interest rate or fee otherwise applicable.
2.12 Method of Payment. All payments of principal, interest, and fees
hereunder shall be made, without setoff, deduction or counterclaim, to the
Administrative Agent at the Administrative Agent's office in Chicago, Illinois
or at any other Lending Installation of the Administrative Agent specified in
writing, in immediately available funds (by 9:00 a.m. (Chicago time) on the day
before the date when due) by the Administrative Agent to the Borrower on the
date when due and shall be made ratably among the Lenders (unless such amount is
not to be shared ratably in accordance with the terms hereof). Each Advance
shall be
31
repaid or prepaid in Dollars and interest payable thereon shall be paid
in Dollars. Each Revolver L/C Obligation denominated in an Agreed Currency other
than Dollars shall be repaid, and all interest and fees to be paid in respect
thereof shall be paid, in the currency in which the related Revolver Letter of
Credit was issued, or where such currency has converted to euro, in euro. Each
payment delivered to the Administrative Agent for the account of any Lender
shall be delivered promptly by the Administrative Agent to such Lender in the
same type of funds which the Administrative Agent received at its address
specified pursuant to Article XIII or at any Lending Installation specified in a
notice received by the Administrative Agent from such Lender. The Borrower
authorizes the Administrative Agent to charge any account of the Borrower
maintained with Bank One for each payment of principal, interest and fees as it
becomes due hereunder.
If, after the designation by the Issuing Lender and the Administrative
Agent of any currency as an Agreed Currency, in the reasonable opinion of the
Borrower, the Issuing Lender, the Required Lenders or the Administrative Agent,
(x) there shall occur any change in national or international financial,
political or economic conditions or currency exchange rates or currency control
or other exchange regulations are imposed in the country which issues such
currency with the result that it shall be impractical for any Revolver L/C
Obligation to be denominated in such currency or different types of such
currency are introduced, (y) such currency is no longer readily available or
freely traded or (z) an Equivalent Amount of such currency is not readily
calculable (any such event a "MARKET DISRUPTION"), the Borrower, the Issuing
Lender, the Required Lenders or the Administrative Agent, as applicable, shall
promptly notify the Lenders, the Issuing Lender, the Administrative Agent and
the Borrower, and such currency shall no longer be an Agreed Currency until such
time as the Administrative Agent and the Issuing Lender agrees to reinstate such
currency as an Agreed Currency, and all payments to be made by the Borrower
hereunder in such currency shall instead be made when due in Dollars in an
amount equal to the Dollar Amount (as of the date of repayment) of such payment
due, it being the intention of the parties hereto that the Borrower takes all
risks of the imposition of any such currency control or exchange regulations.
For purposes of this Section 2.12, the commencement of the third stage of EMU
shall not constitute the imposition of currency control or exchange regulations.
2.13 Notes, Telephonic Notices. Each Lender is authorized to record the
principal amount of each of its Loans and each repayment with respect to its
Loans on the schedule attached to its respective Notes; provided, however, that
the failure to so record shall not affect the Borrower's obligations under any
such Note. The Borrower authorizes the Lenders and the Administrative Agent to
extend Revolving Advances, effect selections of Types of Revolving Advances and
to transfer funds based on telephonic notices made by any person or persons the
Administrative Agent or any Lender in good faith believes to be acting on behalf
of the Borrower. The Borrower agrees to deliver promptly to the Administrative
Agent a written confirmation, signed by an Authorized Officer, if such
confirmation is requested by the Administrative Agent or any Lender, of each
telephonic notice. If the written confirmation differs in any material respect
from the action taken by the Administrative Agent and the Lenders, (i) the
telephonic notice shall govern absent manifest error and (ii) the Administrative
Agent or the Lender, as applicable, shall promptly notify the Authorizing
Officer who provided such confirmation of such difference.
32
2.14 Promise to Pay; Interest and Fees; Interest Payment Dates; Interest
and Fee Basis; Loan Accounts.
(A) Promise to Pay. The Borrower unconditionally promises to pay when due
the principal amount of each Loan made to it and all other Obligations incurred
by it, and to pay all unpaid interest accrued thereon, in accordance with the
terms of this Agreement.
(B) Interest Payment Dates. Interest accrued on each Base Rate Loan shall
be payable on each Payment Date, commencing with the first such date to occur
after the date hereof, on any date on which such Base Rate Loan is prepaid,
whether due to acceleration or otherwise, and at maturity (whether by
acceleration or otherwise). Interest accrued on each Eurodollar Rate Loan shall
be payable on the last day of its applicable Interest Period, on any date on
which the Eurodollar Rate Loan is prepaid, whether by acceleration or otherwise,
and at maturity. Interest accrued on each Eurodollar Rate Loan having an
Interest Period longer than three months shall also be payable on the last day
of each three-month interval during such Interest Period. Interest accrued on
the principal balance of all other Obligations shall be payable in arrears (i)
on each Payment Date, commencing on the first such date following the incurrence
of such Obligation, (ii) upon repayment thereof in full or in part, (iii) if not
theretofore paid in full, at the time such other Obligation becomes due and
payable (whether by acceleration or otherwise) and (iv) if not theretofore paid
in full, on demand, commencing on the first such day following the date such
Obligation became payable pursuant to the terms of this Agreement or the other
Loan Documents.
(C) Fees. (i) The Borrower shall pay or cause the appropriate Subsidiary to
pay to the Administrative Agent, for the account of the Revolving Lenders in
accordance with their Revolving Loan Pro Rata Shares, a commitment fee accruing
at the rate of the Applicable Revolving Loan Commitment Fee per annum from and
after the date hereof until the Termination Date on the amount by which (A) the
Aggregate Revolving Loan Commitment in effect from time to time exceeds (B) the
aggregate outstanding amount of the Revolving Advances and Revolver L/C
Obligations from time to time. All such commitment fees payable under this
clause (C)(i) shall be payable quarterly in arrears on the first Business Day of
each calendar quarter occurring after the date hereof and, in addition, on the
Termination Date.
(ii) The Borrower shall deliver to the Lenders PIK Notes evidencing a
deferral fee payable by the Borrower to the Lenders in accordance with their Pro
Rata Shares, subject to the terms and conditions of the PIK Notes. The deferral
fee evidenced by the PIK Notes shall accrue monthly (commencing on October 1,
2002) at a per annum rate equal to 0.50% of the sum of the Revolving Credit
Obligations and the aggregate outstanding principal amount of the Term Credit as
of September 30, 2002. Interest on the PIK Notes shall accrue monthly, shall be
computed at a rate per annum equal to the sum of the Alternate Base Rate plus
the Applicable Margin for Term Loans which are Base Rate Loans and shall be
added to the interest-bearing principal amount of the PIK Notes.
(D) Interest and Fee Basis
Interest and fees shall be calculated for actual days elapsed on the basis
of a 360-day year and shall be payable for the day an Obligation is incurred but
not for the day of any payment on
33
the amount paid if payment is received prior to 12:00 noon local time in Chicago
at the place of payment. If any payment of principal of or interest on a Loan or
any payment of any other Obligations shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
(E) Loan Account. Each Lender shall maintain in accordance with its usual
practice an account or accounts (a "LOAN ACCOUNT") evidencing the Obligations of
the Borrower to such Lender owing to such Lender from time to time, including
the amount of principal and interest payable and paid to such Lender from time
to time hereunder and under the Notes.
(F) Entries Binding. The entries made in the Register and each Loan Account
shall be conclusive and binding for all purposes, absent manifest error, unless
the Borrower objects to information contained in the Register and each Loan
Account within thirty (30) days of the Borrower's receipt of such information.
2.15 Notification of Advances, Interest Rates, Prepayments and Aggregate
Revolving Loan Commitment Reductions. Promptly after receipt thereof, the
Administrative Agent will notify each Lender of the contents of each Aggregate
Revolving Loan Commitment reduction notice, Borrowing Notice,
Continuation/Conversion Notice, and repayment notice received by it hereunder.
The Administrative Agent will notify each Lender of the interest rate applicable
to each Eurodollar Rate Loan promptly upon determination of such interest rate
and will give each Lender prompt notice of each change in the Alternate Base
Rate.
2.16 Lending Installations. Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Installation
from time to time. All terms of this Agreement shall apply to any such Lending
Installation and the Notes shall be deemed held by each Lender for the benefit
of such Lending Installation. Each Lender may, by written or facsimile notice to
the Administrative Agent and the Borrower, designate a Lending Installation
through which Loans will be made by it and for whose account Loan payments are
to be made.
2.17 Non-Receipt of Funds by the Administrative Agent. Unless the Borrower
or a Lender, as the case may be, notifies the Administrative Agent prior to the
date on which it is scheduled to make payment to the Administrative Agent of (i)
in the case of a Lender, the proceeds of a Loan or (ii) in the case of the
Borrower, a payment of principal, interest or fees to the Administrative Agent
for the account of the Lenders, that it does not intend to make such payment,
the Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the Borrower, as the case may be, has not in fact made such
payment to the Administrative Agent, the recipient of such payment shall, on
demand by the Administrative Agent, repay to the Administrative Agent the amount
so made available together with interest thereon in respect of each day during
the period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by the
Borrower, the interest rate applicable to the relevant Loan.
34
2.18 Termination Date. This Agreement shall be effective until the
Termination Date. Notwithstanding the termination of this Agreement on the
Termination Date, until all of the Obligations (other than contingent indemnity
and reimbursement obligations) shall have been fully and indefeasibly paid and
satisfied, all financing arrangements among the Borrower and the Lenders shall
have been terminated (other than under Interest Rate Agreements or other
agreements with respect to Hedging Obligations) and all of the Letters of Credit
shall have expired, been canceled or terminated, all of the rights and remedies
under this Agreement and the other Loan Documents shall survive and the
Collateral Agent shall be entitled to retain its security interest in and to all
existing and future Collateral for the benefit of itself and the Secured
Parties.
2.19 Letter of Credit Facility. Upon receipt of duly executed applications
therefor, and such other documents, instructions and agreements as the Issuing
Lender may reasonably require, and subject to the provisions of Section 2.1 and
Article IV, the Issuing Lender shall issue Revolver Letters of Credit
denominated in Dollars for the account of the Borrower (or for the account of
the Borrower and any of its Subsidiaries, provided that the Borrower's
obligations hereunder with respect thereto shall be several and not joint), on
terms as are satisfactory to the Issuing Lender; provided, however, that no
Revolver Letter of Credit will be issued for the account of Borrower by the
Issuing Lender if on the date of issuance, before or after taking such Revolver
Letter of Credit into account, (i) the aggregate Dollar Amount of the Revolving
Advances and the Revolver L/C Obligations at such time would exceed the
Aggregate Revolving Loan Commitment at such time or (ii) the aggregate
outstanding Dollar Amount of the Revolver L/C Obligations exceeds $5,000,000;
and provided, further, that no Revolver Letter of Credit shall be issued which
has an expiration date later than the date which is twenty-one (21) days
immediately preceding the Termination Date. The parties hereto acknowledge and
agree that the Initial Revolver Letter of Credit shall be deemed to constitute a
Revolver Letter of Credit issued pursuant to this Section 2.19 in which the
Revolving Lenders participate pursuant to Section 2.20 and with respect to which
fees shall accrue as provided in Section 2.23 beginning as of the Effective
Date. Each Revolver Letter of Credit may, upon the request of the Borrower,
include a provision whereby such Revolver Letter of Credit shall be renewed
automatically for additional consecutive periods of 12 months or less (but not
beyond the date that is twenty-one (21) days prior to the Termination Date)
unless the Issuing Lender notifies the beneficiary thereof at least 30 days
prior to the then-applicable expiry date that such Revolver Letter of Credit
will not be renewed (it being understood and agreed that the Issuing Lender
shall not send such a notice unless (x) an Unmatured Default or Default has
occurred and is continuing or (y) such renewal would cause such Revolver Letter
of Credit to expire on a date that is beyond twenty-one (21) days prior to the
Termination Date).
2.20 Revolver Letter of Credit Participation. On the Effective Date, with
respect to the Initial Revolver Letters of Credit, and immediately upon the
issuance of each Revolver Letter of Credit by the Issuing Lender hereunder, each
Revolving Lender shall be deemed to have automatically, irrevocably and
unconditionally purchased and received from the Issuing Lender an undivided
interest and participation in and to such Revolver Letter of Credit, the
obligations of the Borrower in respect thereof, and the liability of the Issuing
Lender thereunder (collectively, a "REVOLVER L/C INTEREST") in an amount equal
to the Dollar Amount available for drawing under such Revolver Letter of Credit
multiplied by such Revolving Lender's Revolving Loan Pro Rata Share.
35
The Issuing Lender will notify the Administrative Agent promptly upon
presentation to it of a Revolver L/C Draft or upon any other draw under a
Revolver Letter of Credit and the Administrative Agent will promptly notify each
Revolving Lender. On or before the Business Day on which the Issuing Lender
makes payment of each such Revolver L/C Draft or any other draw on a Revolver
Letter of Credit, on demand of the Issuing Lender received by each Revolving
Lender not later than 12:00 noon (Chicago time) on such Business Day, each
Revolving Lender shall make payment on such Business Day to the Administrative
Agent for the account of the Issuing Lender, in immediately available funds in
Dollars in an amount equal to such Lender's Revolving Loan Pro Rata Share of the
Dollar Amount of such payment or draw.
Upon the Administrative Agent's receipt of funds as a result of the Issuing
Lender's payment on a Revolver L/C Draft or any other draw on a Revolver Letter
of Credit issued by the Issuing Lender, the Administrative Agent shall promptly
pay such funds to the Issuing Lender. The obligation of each Revolving Lender to
pay the Administrative Agent for the account of the Issuing Lender under this
Section 2.20 shall be unconditional, continuing, irrevocable and absolute. In
the event that any Revolving Lender fails to make payment to the Administrative
Agent of any amount due under this Section 2.20, the Administrative Agent shall
be entitled to receive, retain and apply against such obligation the principal
and interest otherwise payable to such Revolving Lender hereunder until the
Administrative Agent on behalf of the Issuing Lender receives such payment from
such Revolving Lender or such obligation is otherwise fully satisfied; provided,
however, that nothing contained in this sentence shall relieve such Revolving
Lender of its obligation to reimburse the Administrative Agent for such amount
in accordance with this Section 2.20.
2.21 Reimbursement Obligation. The Borrower agrees unconditionally,
irrevocably and absolutely upon receipt of notice from the Administrative Agent
or the Issuing Lender to pay immediately to the Administrative Agent, for the
account of the Issuing Lender or the account of the Revolving Lenders, as the
case may be, the amount of each advance which may be drawn under or pursuant to
a Revolver Letter of Credit issued for its account or a Revolver L/C Draft
related thereto (such obligation of the Borrower to reimburse the Issuing Lender
or the Administrative Agent for an advance made under a Revolver Letter of
Credit or Revolver L/C Draft being hereinafter referred to as a "REIMBURSEMENT
OBLIGATION" with respect to such Revolver Letter of Credit or Revolver L/C
Draft), each such payment to be made by the Borrower to the Administrative Agent
no later than 1:00 p.m. (Chicago time) on the Business Day on which the Issuing
Lender makes payment of each such Revolver L/C Draft or, in the case of any
other draw on a Revolver Letter of Credit, 1:00 p.m. (Chicago time) on the date
specified in a demand by the Administrative Agent, which shall be the date on
which a corresponding payment is to be made by the Issuing Lender. The Issuing
Lender may direct the Administrative Agent to make such demand with respect to
Revolver Letters of Credit issued by the Issuing Lender. If the Borrower at any
time fails to repay a Reimbursement Obligation pursuant to this Section 2.21,
such unpaid Reimbursement Obligation shall at that time be automatically
converted into an obligation denominated in Dollars and the Borrower shall be
deemed to have elected to borrow a Revolving Advance from the Revolving Lenders,
as of the date of the payment by the Issuing Lender giving rise to the
Reimbursement Obligation equal in amount to the Dollar Amount of the unpaid
Reimbursement Obligation. Such Revolving Advance shall be made as of the date of
the payment giving rise to such Reimbursement Obligation, automatically, without
notice and without any requirement to satisfy the conditions precedent otherwise
36
applicable to a Revolving Advance if the Borrower shall have failed to make such
payment to the Administrative Agent for the account of the applicable Issuing
Lender prior to such time. Such Revolving Advance shall constitute a Base Rate
Advance and the proceeds of such Advance shall be used to repay such
Reimbursement Obligation. If, for any reason, the Borrower fails to repay a
Reimbursement Obligation on the day such Reimbursement Obligation arises and,
for any reason, the Revolving Lenders are unable to make or have no obligation
to make a Revolving Advance, then such Reimbursement Obligation shall bear
interest from and after such day, until paid in full, at the interest rate
applicable to a Base Rate Advance (or, in the case of a Reimbursement Obligation
denominated in an Agreed Currency other than Dollars, at the rate determined by
the Issuing Lender in good faith to represent the Issuing Lender's cost of
overnight or short-term funds in the applicable Agreed Currency plus the then
effective Applicable Margin with respect to Eurodollar Rate Loans which are
Revolving Loans). The Borrower agrees to indemnify the Issuing Lender against
any loss or expense determined by such Issuing Lender in good faith to have
resulted from any conversion pursuant to this Section 2.21 by reason of the
inability of the Issuing Lender to convert the Dollar Amount received from the
Borrower or from the Lenders, as applicable, into an amount in the applicable
Agreed Currency of such Letter of Credit equal to the amount of such
Reimbursement Obligation.
2.22 Cash Collateral. Notwithstanding anything to the contrary herein or in
any application for a Revolver Letter of Credit, after the occurrence and during
the continuance of Default, the Borrower shall, upon the Administrative Agent's
demand, deliver to the Collateral Agent, cash having a value equal to the
aggregate outstanding Revolver L/C Obligations of the Borrower. In addition, if
the amount of Revolver L/C Obligations outstanding at any time exceeds the
Aggregate Revolving Loan Commitment, the Borrower shall deposit cash collateral
with the Collateral Agent in an amount equal to the amount by which such
Revolver L/C Obligations exceed the Aggregate Revolving Loan Commitment. Any
such collateral shall be held by the Collateral Agent in the Letter of Credit
Collateral Account (as defined in the Intercreditor Agreement).
2.23 Letter of Credit Fees. The Borrower agrees to pay (i) monthly, in
arrears, on each Payment Date to the Administrative Agent for the ratable
benefit of the Revolving Lenders (with respect to Revolver Letters of Credit)
and the Term Lenders (with respect to Term Letters of Credit), except as set
forth in Section 8.2, a letter of credit fee in the Dollar Amount of the
Applicable Letter of Credit Fee per annum on the aggregate average daily
outstanding amount available for drawing under all of the Letters of Credit and
(ii) to the Administrative Agent for the benefit of the Issuing Lender, a
fronting fee of 1/8 of one percent (0.125%) of the initial outstanding Dollar
Amount available for drawing under each Letter of Credit, payable on the date of
issuance of such Letter of Credit, plus all customary fees and other issuance,
amendment, document examination, negotiation and presentment expenses and
related charges in connection with the issuance, amendment, presentation of L/C
Drafts, and the like customarily charged by the Issuing Lender with respect to
standby and commercial Letters of Credit, including, without limitation,
standard commissions with respect to commercial Letters of Credit, payable at
the time of invoice of such amounts.
2.24 Indemnification; Exoneration.
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(a) In addition to amounts payable as elsewhere provided in this Agreement,
the Borrower agrees to protect, indemnify, pay and save harmless the
Administrative Agent, the Issuing Lender and each Lender from and against any
and all liabilities and costs which the Administrative Agent, the Issuing Lender
or any Lender may incur or be subject to as a consequence, direct or indirect,
of (i) the issuance of any Letter of Credit other than, in the case of the
Issuing Lender, as a result of its Gross Negligence or willful misconduct, as
determined by the final judgment of a court of competent jurisdiction, or (ii)
the failure of the Issuing Lender of a Letter of Credit to honor a drawing under
such Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto Governmental Authority
(all such acts or omissions herein called "GOVERNMENTAL ACTS").
(b) As among the Borrower, the Lenders, the Issuing Lender and the
Administrative Agent, the Borrower assumes all risks of the acts and omissions
of, or misuse of such Letter of Credit by, the beneficiary of any Letter of
Credit. In furtherance and not in limitation of the foregoing, subject to the
provisions of the Letter of Credit applications and Letter of Credit
reimbursement agreements executed by the Borrower at the time of request for any
Letter of Credit, the Issuing Lender of a Letter of Credit, the Administrative
Agent and the Lenders shall not be responsible (in the absence of Gross
Negligence or willful misconduct in connection therewith, as determined by the
final judgment of a court of competent jurisdiction): (i) for the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
the Letters of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason; (iii) for failure of the beneficiary of a
Letter of Credit to comply duly with conditions required in order to draw upon
such Letter of Credit; (iv) for errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, telex, or
other similar form of teletransmission or otherwise; (v) for errors in
interpretation of technical trade terms; (vi) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of a Letter of Credit of the proceeds of any
drawing under such Letter of Credit; and (viii) for any consequences arising
from causes beyond the control of the Administrative Agent, the Issuing Lender
and the Lenders including, without limitation, any Governmental Acts. None of
the above shall affect, impair, or prevent the vesting of any of the Issuing
Lender's rights or powers under this Section 2.24.
(c) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by the Issuing
Lender under or in connection with Letters of Credit issued on behalf of the
Borrower or any related certificates shall not, in the absence of Gross
Negligence or willful misconduct, as determined by the final judgment of a court
of competent jurisdiction, put the Issuing Lender, the Administrative Agent or
any Lender under any resulting liability to the Borrower or relieve the Borrower
of any of its obligations hereunder to any such Person.
(d) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.24 shall survive the
38
payment in full of principal and interest hereunder, the termination of the
Letters of Credit and the termination of this Agreement.
2.25 Judgment Currency. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due from the Borrower hereunder or under
any of the Notes in the currency expressed to be payable herein or under the
Notes (the "specified currency") into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the specified currency with
such other currency at the Administrative Agent's office in Chicago, Illinois on
the Business Day preceding that on which the final, non-appealable judgment is
given. The obligations of the Borrower in respect of any sum due to any Lender
or the Administrative Agent hereunder or under any Note shall, notwithstanding
any judgment in a currency other than the specified currency, be discharged only
to the extent that on the Business Day following receipt by such Lender or the
Administrative Agent (as the case may be) of any sum adjudged to be so due in
such other currency such Lender or the Administrative Agent (as the case may be)
may in accordance with normal, reasonable banking procedures purchase the
specified currency with such other currency. If the amount of the specified
currency so purchased is less than the sum originally due to such Lender or the
Administrative Agent, as the case may be, in the specified currency, the
Borrower agrees, to the fullest extent that it may effectively do so, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender or the Administrative Agent, as the case may be, against such loss, and
if the amount of the specified currency so purchased exceeds (a) the sum
originally due to any Lender or the Administrative Agent, as the case may be, in
the specified currency and (b) any amounts shared with other Lenders as a result
of allocations of such excess as a disproportionate payment to such Lender under
Section 11.2, such Lender or the Administrative Agent, as the case may be,
agrees to remit such excess to the Borrower.
ARTICLE III: CHANGE IN CIRCUMSTANCES
3.1 Yield Protection. If any law or any governmental or quasi-governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) adopted after the date of this Agreement and having general
applicability to all banks within the jurisdiction in which such 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 any Lender therewith,
(i) subjects any Lender (each reference in this Section 3.1 to a
Lender being in its capacity as a Lender or the Issuing Lender, or both) or
any applicable Lending Installation to any tax, duty, charge or withholding
on or from payments due from the Borrower (excluding Excluded Taxes), or
changes the basis of taxation of payments (other than with respect to
Excluded Taxes) to any Lender in respect of its Loans, its L/C Interests,
the Letters of Credit or other amounts due it hereunder, provided, that
this clause (i) shall not apply with respect to any Taxes to which Section
3.5 applies, or
39
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender or
any applicable Lending Installation with respect to its Eurodollar Rate
Loans, L/C Interests or the Letters of Credit, or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation of making,
funding or maintaining the Eurodollar Rate Loans, the L/C Interests or the
Letters of Credit or reduces any amount received by any Lender or any
applicable Lending Installation in connection with Eurodollar Rate Loans or
Letters of Credit, or requires any Lender or any applicable Lending
Installation to make any payment calculated by reference to the amount of
Loans or L/C Interests held or interest received by it or by reference to
the Letters of Credit, by an amount deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining its Loans, L/C Interests or Letters of Credit or
to reduce any amount received under this Agreement, then, within 15 days after
receipt by the Borrower of written demand by such Lender pursuant to Section
3.6, the Borrower shall pay or cause the appropriate Subsidiary to pay such
Lender that portion of such increased expense incurred or reduction in an amount
received which such Lender determines is attributable to making, funding and
maintaining its Loans, L/C Interests, Letters of Credit and its Revolving Loan
Commitment.
3.2 Changes in Capital Adequacy Regulations. If a Lender (each reference in
this Section 3.2 to a Lender being in its capacity as a Lender or the Issuing
Lender, or both) determines (i) the amount of capital required or expected to be
maintained by such Lender, any Lending Installation of such Lender or any
corporation controlling such Lender is increased as a result of a "Change" (as
defined below), and (ii) such increase in capital will result in an increase in
the cost to such Lender of maintaining its Loans, L/C Interests, the Letters of
Credit or its obligation to make Loans hereunder, then, within 15 days after
receipt by the Borrower of written demand by such Lender pursuant to Section
3.6, the Borrower shall pay or cause the appropriate Subsidiary to pay such
Lender the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender determines is
attributable to this Agreement, its Loans, its L/C Interests, the Letters of
Credit or its obligation to make Loans hereunder (after taking into account such
Lender's policies as to capital adequacy). "CHANGE" means (i) any change after
the date of this Agreement in the "Risk-Based Capital Guidelines" (as defined
below) excluding, for the avoidance of doubt, the effect of any phasing in of
such Risk-Based Capital Guidelines or any other capital requirements passed
prior to the date hereof, or (ii) any adoption of or change in any other law,
governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
date of this Agreement and having general applicability to all banks and
financial institutions within the jurisdiction in which such Lender operates
which affects the amount of capital required or expected to be maintained by any
Lender or any Lending Installation or any corporation controlling any Lender.
"RISK-BASED CAPITAL Guidelines" means (i) the risk-based capital guidelines in
effect in the United States on the date of this Agreement, including transition
rules, and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
40
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
3.3 Availability of Types of Advances. If (i) any Lender determines that
maintenance of any of its Eurodollar Rate Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, or (ii) the Required Lenders determine
that (x) deposits of a type, currency and maturity appropriate to match fund
Eurodollar Rate Advances are not available or (y) the interest rate applicable
to a Eurodollar Rate Advance does not accurately reflect the cost of making or
maintaining such a Eurodollar Rate Advance, then the Administrative Agent shall
suspend the availability of Eurodollar Rate Advances of the affected Type or in
the affected currency and, in the case of any occurrence set forth in clause
(i), require any affected Eurodollar Rate Advances to be repaid or, in the case
of Eurodollar Rate Loans in Dollars, at the option of the Borrower, converted to
Base Rate Advances.
3.4 Funding Indemnification. If any payment of a Eurodollar Rate Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment, or otherwise, or a Eurodollar Rate
Advance is not made or continued on the date specified by the Borrower for any
reason other than default by the Lenders, the Borrower agrees to indemnify each
Lender for any loss or cost incurred by it resulting therefrom, including,
without limitation, any loss or cost in liquidating or employing deposits
acquired to fund or maintain the Eurodollar Rate Advance.
3.5 Taxes.
(i) Any and all payments by the Borrower hereunder shall be made
free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings or
any liabilities with respect thereto including those arising after the
date hereof as a result of the adoption of or any change in any law,
treaty, rule, regulation, guideline or determination of a Governmental
Authority or any change in the interpretation or application thereof
by a Governmental Authority but excluding, in the case of each Lender
and the Administrative Agent, such taxes (including income taxes,
franchise taxes and branch profit taxes) as are imposed on or measured
by such Lender's or Administrative Agent's, as the case may be, net
income by the United States of America or any Governmental Authority
of the jurisdiction (or any political subdivision thereof) under the
laws of which such Lender or the Administrative Agent, as the case may
be, is organized, carries on a business (other than as a result of a
connection arising solely from the execution, delivery or performance
of obligations under this Agreement), or maintains a Lending
Installation (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings, and liabilities which the
Administrative Agent or a Lender determines to be applicable to this
Agreement, the other Loan Documents, the Revolving Loan Commitments,
the Loans or the Letters of Credit being hereinafter referred to as
"Taxes"). Notwithstanding the foregoing sentence, the Borrower shall
not be obligated to make any deductions, charges or withholdings from
any and all payments to a
41
Lender that is both a Purchaser and is organized or incorporated
outside the United States of America (or a political subdivision
thereof), unless either (v) the Borrower consents to the assignment of
such Purchaser's interest or (w) the Purchaser delivers IRS form
W-8BEN, W-8ECI or other applicable form in the manner and by the
procedures described in Section 3.5(vi) and continues to comply with
Section 3.5(vi). If the Borrower or the Administrative Agent shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under the other Loan Documents to any Lender or
the Administrative Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 3.5) such Lender or the Administrative Agent (as the case may
be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such
deductions, and (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance
with applicable law. If any Taxes, including, without limitation, any
withholding tax of the United States of America or any other
Governmental Authority shall be or become applicable (y) after the
date of this Agreement, to such payments by the Borrower made to the
Lending Installation or any other office that a Lender may claim as
its Lending Installation, or (z) after such Lender's selection and
designation of any other Lending Installation, to such payments made
to such other Lending Installation, such Lender shall use reasonable
efforts to make, fund and maintain its Loans through another Lending
Installation of such Lender in another jurisdiction so as to reduce
the Borrower's liability hereunder, if the making, funding or
maintenance of such Loans through such other Lending Installation of
such Lender does not, in the reasonable judgment of such Lender,
otherwise adversely affect such Loans, the obligations under the
Revolving Loan Commitments or such Lender.
(ii) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges, or similar levies which arise from any payment made
hereunder, from the issuance of Letters of Credit hereunder, or from
the execution, delivery or registration of, or otherwise with respect
to, this Agreement, the other Loan Documents, the Revolving Loan
Commitments, the Loans or the Letters of Credit (hereinafter referred
to as "Other Taxes").
(iii) The Borrower indemnifies each Lender and the Administrative
Agent for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any Governmental
Authority on amounts payable under this Section 3.5) paid by such
Lender or the Administrative Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. This indemnification shall
be made within thirty (30) days after the date such Lender or the
Administrative Agent (as the case may be) makes written demand
therefor. A certificate as to any additional amount payable to any
Lender or the
42
Administrative Agent under this Section 3.5 submitted to the Borrower
and the Administrative Agent (if a Lender is so submitting) by such
Lender or the Administrative Agent shall show in reasonable detail the
amount payable and the calculations used to determine such amount and
shall, absent manifest error, be final, conclusive and binding upon
all parties hereto. With respect to such deduction or withholding for
or on account of any Taxes and to confirm that all such Taxes have
been paid to the appropriate Governmental Authorities, the Borrower
shall promptly (and in any event not later than thirty (30) days after
receipt) furnish to each Lender and the Administrative Agent such
certificates, receipts and other documents as may be required (in the
judgment of such Lender or the Administrative Agent) to establish any
tax credit to which such Lender or the Administrative Agent may be
entitled. Notwithstanding the foregoing, the Borrower shall not be
required to indemnify any Lender or the Administrative Agent under
this Section 3.5(iii) if such Lender or the Administrative Agent, as
applicable, fails to comply with Section 3.5(vi).
(iv) Within thirty (30) days after the date of any payment of
Taxes or Other Taxes by the Borrower, the Borrower shall furnish to
the Administrative Agent the original or a certified copy of a receipt
evidencing payment thereof.
(v) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 3.5 shall survive the payment in full of
principal and interest hereunder, the termination of the Letters of
Credit and the termination of this Agreement.
(vi) Each Lender that is not created or organized under the laws
of the United States of America or a political subdivision thereof
shall deliver to the Borrower and the Administrative Agent on or
before the Effective Date, or, if later, the date on which such Lender
becomes a Lender pursuant to Section 12.3 and from time to time when
requested by the Borrower, a true and accurate certificate executed in
duplicate by a duly authorized officer of such Lender, in a form
satisfactory to the Borrower and the Administrative Agent, to the
effect that (A) such Lender is capable of receiving payments of
interest hereunder without deduction or withholding of United States
federal income tax and accompanied by two executed copies of Form
W-8BEN or Form W-8ECI of the IRS, or applicable successor forms or,
(B) such Lender is not (1) a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (2) a "10 percent shareholder" of the
Borrower or any Subsidiary within the meaning of Section 881(c)(3)(B)
of the Code, or (3) a controlled foreign corporation receiving
interest from a related person within the meaning of Section
881(c)(3)(C) of the Code and accompanied by two executed copies of
Form W-8BEN or applicable successor form. Each such Lender further
agrees to deliver to the Borrower and the Administrative Agent from
time to time a true and accurate certificate executed in duplicate by
a duly authorized officer of such Lender substantially in a form
satisfactory to the Borrower and the Administrative Agent, before or
promptly upon the occurrence of any event requiring a change in the
most recent certificate previously delivered by it to the
43
Borrower and the Administrative Agent pursuant to this Section
3.5(vi). Further, each Lender which delivers a certificate pursuant to
this Section 3.5(vi) covenants and agrees to deliver to the Borrower
and the Administrative Agent within fifteen (15) days prior to the
expiration of such form, another such certificate and/or two accurate
and complete original signed copies of the applicable form (or any
successor form or forms required under the Code or the applicable
regulations promulgated thereunder). Each such certificate shall
certify as to one of the following:
(1) that such Lender is capable of receiving payments of interest
hereunder without deduction or withholding of United States of America
federal income tax;
(2) that such Lender is not capable of receiving payments of interest
hereunder without deduction or withholding of United States of America
federal income tax as specified therein but is capable of recovering the
full amount of any such deduction or withholding from a source other than
the Borrower and will not seek any such recovery from the Borrower; or
(3) that, as a result of the adoption of or any change in any law,
treaty, rule, regulation, guideline or determination of a Governmental
Authority or any change in the interpretation or application thereof by a
Governmental Authority after the date such Lender became a party hereto,
such Lender is not capable of receiving payments of interest hereunder
without deduction or withholding of United States of America federal income
tax as specified therein and that it is not capable of recovering the full
amount of the same from a source other than the Borrower.
Each Lender shall promptly furnish to the Borrower and the
Administrative Agent such additional documents as may be reasonably
required by the Borrower or the Administrative Agent to establish any
exemption from or reduction of any Taxes or Other Taxes required to be
deducted or withheld and which may be obtained without undue expense to
such Lender.
3.6 Mitigation; Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Eurodollar Rate Loans to reduce any liability
of the Borrower to such Lender under Sections 3.1 and 3.2 or to avoid the
unavailability of a Type of Advance under Section 3.3, so long as such
designation is not disadvantageous to such Lender. Each Lender requiring
compensation pursuant to this Article III shall use its best efforts to notify
the Borrower and the Administrative Agent in writing of any Change, law, policy,
rule, guideline or directive giving rise to such demand for compensation not
later than ninety (90) days following the date upon which the responsible
account officer of such Lender knows or should have known of such Change, law,
policy, rule, guideline or directive. Any demand for compensation pursuant to
this Article III shall be in writing and shall state the amount due, if any,
under Section 3.1, 3.2, 3.4 or 3.5 and shall set forth in reasonable detail the
calculations upon which such Lender determined such amount. Such written demand
shall be rebuttably presumed correct for all purposes. Determination of amounts
payable under such Sections in connection with a Eurodollar Rate Loan shall be
calculated as though each Lender funded its Eurodollar Rate Loan through the
44
purchase of a deposit of the type, currency and maturity corresponding to the
deposit used as a reference in determining the Eurodollar Rate applicable to
such Loan, whether in fact that is the case or not. The obligations of the
Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the
Obligations and termination of this Agreement.
ARTICLE IV: CONDITIONS PRECEDENT
4.1 Effectiveness. The effectiveness of this Agreement is subject to the
satisfaction of each of the following conditions precedent:
(a) The Borrower shall have furnished to the Administrative Agent, with
sufficient copies (other than in the case of the Notes) for each of the Lenders,
such documents as the Administrative Agent or any Lender or its counsel may have
reasonably requested, including, without limitation, (1) this Agreement, the
Notes, the Guaranty and all of the other documents reflected on the List of
Closing Documents attached as Exhibit D to this Agreement, (2) the Collateral
Documents required by the Collateral Agent to be delivered on or before the
Effective Date and (3) a copy of this Agreement executed by the Borrower, the
Lenders and the Administrative Agent.
(b) The Note Agreements and the Intercreditor Agreement shall have been
duly executed and delivered by the parties thereto and all of the transactions
contemplated thereby shall have been consummated to the satisfaction of the
Administrative Agent and the Lenders.
(c) No injunction or temporary restraining order shall exist which, in the
judgment of the Administrative Agent, would prohibit the making of the Loans or
any litigation seeking such an injunction or restraining order.
(d) No action, suit, proceeding, arbitration or (to the Borrower's
knowledge) investigation shall exist before or by any Governmental Authority or
private arbitrator pending or (to the Borrower's knowledge) shall be threatened
against the Borrower or any of its Subsidiaries or any property of any of them
(i) challenging the validity or the enforceability of any material provision of
the Loan Documents or (ii) which will have or could reasonably be expected to
have a Material Adverse Effect.
(e) The Borrower shall have entered into definitive and binding
documentation pertaining to, and closed on, the Permitted Receivables Transfer
on terms and conditions satisfactory to the Lenders.
(f) The Borrower shall have closed on an amendment to the Fleet Lease
Transaction on terms and conditions satisfactory to the Administrative Agent.
(g) Any consents or approvals required to be obtained from any holder of
any outstanding debt of the Borrower or any Guarantor and any amendments of
agreements pursuant to which any Indebtedness may have been incurred by the
Borrower or any Guarantor, which shall be necessary to permit the consummation
of the transactions contemplated hereby or by the Restructuring Transaction
shall have been obtained and all such consents, approvals or
45
amendments shall be satisfactory in form and substance to the Administrative
Agent and its counsel.
(h) The Borrower shall have paid an amendment fee to the Administrative
Agent for the ratable account of each Lender in an amount equal to 0.50% of the
sum of such Lender's Revolving Loan Commitment and Term Credit (as computed
after giving effect hereto).
(i) The Borrower shall have paid all the fees agreed to in any fee letters
among the Administrative Agent and the Borrower.
4.2 Each Revolving Loan and Revolver Letter of Credit. Except as expressly
provided in Section 2.23, no Revolver Lender shall be required to make any
Revolving Loan and the Issuing Lender shall not be required to issue any
Revolver Letter of Credit, unless on the applicable Borrowing Date, or in the
case of a Revolver Letter of Credit, the date on which the Revolver Letter of
Credit is to be issued:
(i) There exists no Default or Unmatured Default; and
(ii) The representations and warranties contained in Article V are
true and correct as of such Borrowing Date, except for representations and
warranties made with reference solely to an earlier date, which
representations and warranties shall be true and correct as of such earlier
date.
Each Borrowing Notice with respect to each Loan or Advance and each letter
of credit application with respect to a Letter of Credit shall constitute a
representation and warranty by the Borrower that the conditions contained in
Sections 4.2(i) and (ii) will have been satisfied as of the date of such Loan or
Advance or the issuance of such Letter of Credit. The Administrative Agent may
require a duly completed officer's certificate in substantially the form of
Exhibit E hereto and/or a duly completed compliance certificate in substantially
the form of Exhibit F hereto as a condition to the Lenders' making any Revolving
Loan or the Issuing Lender issuing any Revolver Letter of Credit.
ARTICLE V: REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans and the other financial accommodations to
the Borrower and in order to induce the Issuing Lender to issue the Letters of
Credit described herein, the Borrower represents and warrants as follows to each
Lender as of the Effective Date, having given effect to the consummation of the
transactions contemplated by the Loan Documents on the Effective Date, and
thereafter on each date as required by Section 4.2:
5.1 Corporate Existence and Standing. The Borrower is a corporation and
each of its Subsidiaries is a corporation, partnership or limited liability
company, in each case duly incorporated or organized, as the case may be,
validly existing and (to the extent such concept applies to such entity) in good
standing under the laws of its jurisdiction of incorporation or organization and
has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted, except to the extent that, in the case of any
Subsidiary of the Borrower,
46
the failure to be in good standing or authorized to conduct business in any
jurisdiction could not, when taken together with all similar failures by such
Subsidiary and each other Subsidiary, reasonably be expected to have a Material
Adverse Effect.
5.2 Authorization and Validity.
(A) Each Loan Party has the requisite power and authority (i) to execute,
deliver and perform each of the Loan Documents executed, or which are to be
executed, by it and (ii) to file the Loan Documents or which must be filed by it
or which have been filed by it as required by this Agreement or the other Loan
Documents or otherwise on or prior to the Effective Date with any Governmental
Authority.
(B) The execution, delivery, performance and filing, as the case may be, of
each of the Loan Documents which must be executed or filed by any Loan Party or
which have been executed or filed as required by this Agreement, the other Loan
Documents or otherwise on or prior to the Effective Date and to which any Loan
Party is party, and the consummation of the transactions contemplated thereby,
have been duly approved by the respective boards of directors or comparable
governing bodies and, if necessary, the shareholders of such Loan Party, and
such approvals have not been rescinded. No other action or proceeding on the
part of any Loan Party is necessary to consummate such transactions.
(C) Each of the Loan Documents to which any Loan Party is a party has been
duly executed, delivered or filed, as the case may be, by it and constitutes its
legal, valid and binding obligation, enforceable against such Loan Party in
accordance with its terms (except as enforceability may be limited by
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally and general principles of equity, regardless of whether the
application of such principles is considered in a proceeding in equity or at
law), is in full force and effect and no Default or Unmatured Default exists
thereunder.
5.3 No Conflict; Government Consent. The execution, delivery and
performance of the Loan Documents by the Loan Parties party thereto, the
consummation of the transactions therein contemplated, and compliance with the
provisions thereof will not violate any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Borrower or any Subsidiary
or the Borrower's or any Subsidiary's articles of incorporation or by-laws or
comparable constitutive documents or the provisions of any indenture, instrument
or agreement to which the Borrower or any Subsidiary is a party or is subject,
or by which it, or its Property, is bound, or conflict with or constitute a
default thereunder, or result in the creation or imposition of any Lien in, of
or on the Property of the Borrower or any Subsidiary pursuant to the terms of
any such indenture, instrument or agreement which violation, conflict or
imposition could reasonably be expected to have a Material Adverse Effect. No
order, consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any Governmental Authority is
required to authorize, or is required in connection with the execution, delivery
and performance of, or the legality, validity, binding effect or enforceability
of, any of the Loan Documents.
5.4 Financial Statements. The December 31, 2000, consolidated financial
statements of the Borrower and its Subsidiaries, previously delivered to the
Lenders, were prepared in
47
accordance with Agreement Accounting Principals in effect on the date such
statements were prepared and fairly present the consolidated financial condition
of the Borrower and its Subsidiaries at the date thereof and the consolidated
results of their operations for the period then ended. The consolidated
financial statements of the Borrower and its Subsidiaries dated as of March 31,
2001, June 30, 2001 and September 30, 2001, previously delivered to the Lenders,
were prepared in accordance with Agreement Accounting Principles in effect on
the dates such statements were prepared and fairly present the consolidated
financial condition of the Borrower and its Subsidiaries at the respective dates
thereof and the consolidated results of their operations for the three-month,
six-month and nine-month periods, respectively, then ended, subject to normal
year-end adjustments.
5.5 Material Adverse Change. Except as set forth on Schedule 5.7 hereto,
since December 31, 2001, there has been no change in the business, Property,
prospects, condition (financial or otherwise) or results of operations of the
Borrower and its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect.
5.6 Taxes. All tax returns required to be filed by the Borrower or any of
its Subsidiaries in any jurisdiction have, in fact, been filed, all such tax
returns have been prepared in accordance with applicable laws, and all taxes,
assessments, fees and other governmental charges upon the Borrower or any
Subsidiary or upon any of their respective properties, income or franchises,
which are shown on such returns have been paid except to the extent such tax
payments are being contested in good faith by appropriate proceedings and with
respect to which adequate reserves or other appropriate provisions are being
maintained in accordance with Agreement Accounting Principles. For all taxable
years ending on or before December 31, 1996, the United States Federal income
tax liability of the Borrower and its Subsidiaries has been satisfied and either
the period of limitations on assessment of additional United States Federal
income tax has expired or the Borrower or the applicable Subsidiary has entered
into an agreement with the IRS closing conclusively the total tax liability for
the taxable year. Neither the Borrower nor any of its Subsidiaries knows of any
proposed additional tax assessment against it or any of them for which adequate
provision has not been made on its or their accounts, and no controversy in
respect of additional income or other taxes due or claimed to be due to any
Governmental Authority is pending or to the knowledge of the Borrower or its
Subsidiaries threatened the outcome of which could reasonably be expected to
have a Material Adverse Effect except as set forth on Schedule 5.7 hereto. The
charges, accruals and reserves on the books of the Borrower and its Subsidiaries
in respect of any taxes or other governmental charges are adequate.
5.7 Litigation and Contingent Liabilities. Except as set forth on Schedule
5.7 hereto, there is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their officers,
threatened against or affecting the Borrower or any Subsidiary of the Borrower
which could reasonably be expected to have a Material Adverse Effect. Other than
any liability incident to such litigation, arbitration or proceedings, to the
knowledge of the Borrower's officers neither the Borrower nor any of its
Subsidiaries has any material contingent liabilities not provided for or
disclosed in the financial statements referred to in Section 5.4.
5.8 Subsidiaries. (i) Schedule 5.8 hereto contains an accurate list of all
of the Subsidiaries (except for inactive Subsidiaries with immaterial assets and
liabilities) of the
48
Borrower, setting forth their respective jurisdictions of incorporation or
organization and the percentage of their respective capital stock or other
ownership interests owned by the Borrower or its Subsidiaries; and (ii) all of
the issued and outstanding shares of capital stock or other ownership interests
of the Subsidiaries of the Borrower listed on Schedule 5.8 hereto have been (to
the extent such concepts are relevant with respect to such ownership interests)
duly authorized and issued and are fully paid and non-assessable and are free
and clear of all Liens, except Liens permitted under Section 6.3(C).
5.9 ERISA. The Unfunded Liabilities of all Single Employer Plans do not in
the aggregate exceed $5,000,000. Neither the Borrower nor any other member of
the Controlled Group has incurred, or is reasonably expected to incur, any
withdrawal liability to Multiemployer Plans in excess of $5,000,000 in the
aggregate. Each Plan complies in all material respects with all applicable
requirements of law and regulations, no Reportable Event has occurred with
respect to any Plan, none of the Borrower or any other member of the Controlled
Group has withdrawn from any Multiemployer Plan or initiated steps to do so, and
no steps have been taken to reorganize or terminate any Benefit Plan.
5.10 Accuracy of Information. The information, exhibits and reports
furnished by or on behalf of the Borrower and any of its Subsidiaries to the
Administrative Agent or to any Lender in connection with the negotiation of, or
compliance with, the Loan Documents, including, without limitation, the
Confidential Information Memorandum dated September, 1997 prepared by the
Borrower, the representations and warranties of the Borrower and its
Subsidiaries contained in the Loan Documents, and all certificates and documents
delivered to the Administrative Agent and the Lenders pursuant to the terms
thereof do not contain as of the date furnished any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements contained herein or therein, in light of the circumstances under
which they were made, not misleading.
5.11 Securities Activities. The Borrower and its Subsidiaries are in
compliance with Regulations T, U and X. Neither the Borrower nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
5.12 Material Agreements. Neither the Borrower nor any Subsidiary is a
party to any agreement or instrument or subject to any charter or other
contractual or corporate restriction which will have or is reasonably likely to
have a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries
has received notice or has knowledge that (i) it is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any Contractual Obligation applicable to it, or (ii) any
condition exists which, with the giving of notice or the lapse of time or both,
would constitute a default with respect to any such Contractual Obligation, in
each case, except where such default or defaults, if any, will not have or are
not reasonably likely to have a Material Adverse Effect.
5.13 Compliance with Laws. The Borrower and its Subsidiaries are in
compliance with all Requirements of Law applicable to them and their respective
businesses, in each case where the failure to so comply individually or in the
aggregate will have or is reasonably likely to have a Material Adverse Effect.
49
5.14 Assets and Properties. Except as disclosed on Schedule 5.14 hereto,
the Borrower and each of its Subsidiaries has good and marketable title to all
of its assets and properties (tangible and intangible, real or personal) owned
by it or a valid leasehold interest in all of its leased assets (except insofar
as marketability may be limited by any laws or regulations of any Governmental
Authority affecting such assets), and all such assets and property are free and
clear of all Liens, except Liens permitted under Section 6.3(C). Substantially
all of the assets and properties owned by, leased to or used by the Borrower
and/or each such Subsidiary of the Borrower are in adequate operating condition
and repair, ordinary wear and tear excepted. Except for Liens granted to the
Collateral Agent for the benefit of the Secured Parties, neither this Agreement
nor any other Loan Document, nor any transaction contemplated under any such
agreement, will affect any right, title or interest of the Borrower or such
Subsidiary in and to any of such assets in a manner that would have or could
reasonably be expected to have a Material Adverse Effect.
5.15 Statutory Indebtedness Restrictions. Neither the Borrower, nor any of
its Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness or its ability to
consummate the transactions contemplated hereby.
5.16 Environmental Matters.
(a) Except as disclosed on Schedule 5.16 to this Agreement
(i) the operations of the Borrower and its Subsidiaries comply in all
material respects with Environmental, Health or Safety Requirements of Law;
(ii) the Borrower and its Subsidiaries have all material permits,
licenses or other authorizations required under Environmental, Health or
Safety Requirements of Law and are in material compliance with such
permits;
(iii) neither the Borrower, any of its Subsidiaries nor any of their
respective present property or operations, or, to the best of the
Borrower's or any of its Subsidiaries' knowledge, any of their respective
past property or operations, are subject to or the subject of any
investigation known to the Borrower or any of its Subsidiaries, any
judicial or administrative proceeding, order, judgment, decree, settlement
or other agreement respecting: (A) any material violation of Environmental,
Health or Safety Requirements of Law; (B) any material remedial action; or
(C) any material claims or liabilities arising from the Release or
threatened Release of a Contaminant into the environment;
(iv) there is not now, nor to the best of the Borrower's or any of its
Subsidiaries' knowledge has there ever been, on or in the property of the
Borrower or any of its Subsidiaries any landfill, waste pile, underground
storage tanks, aboveground storage tanks, surface impoundment or hazardous
waste storage facility of any kind, polychlorinated biphenyls (PCBs) used
in hydraulic oils, electric transformers or other equipment, or
asbestos-containing material the consequences of which, in each case or in
the aggregate, could be material; and
50
(v) neither the Borrower nor any of its Subsidiaries has any material
Contingent Obligation or material contingent liability in connection with
any Release or threatened Release of a Contaminant into the environment.
(b) For purposes of this Section 5.16 "material" means any noncompliance or
basis for liability which could reasonably be likely to subject the Borrower to
liability in excess of $5,000,000.
5.17 Labor Matters. As of the Effective Date, no attempt to organize the
employees of the Borrower and no labor disputes, strikes or walkouts affecting
the operations of the Borrower or any of its Subsidiaries, is pending, or, to
the Borrower's knowledge, threatened, planned or contemplated, which could
reasonably be expected to have a Material Adverse Effect.
5.18 Foreign Employee Benefit Matters. Each Foreign Employee Benefit Plan
is in compliance in all respects with all laws, regulations and rules applicable
thereto and the respective requirements of the governing documents for such
Plan, except for any non-compliance the consequences of which, in the aggregate,
would not result in a material obligation to pay money. The aggregate of the
accumulated benefit obligations under all Foreign Pension Plans does not exceed
the current fair market value of the assets held in the trusts or similar
funding vehicles for such Plans or reasonable reserves have been established in
accordance with prudent business practices or as required by Agreement
Accounting Principles with respect to any shortfall. With respect to any Foreign
Employee Benefit Plan maintained or contributed to by the Borrower or any
Subsidiary or any member of its Controlled Group (other than a Foreign Pension
Plan), reasonable reserves have been established in accordance with prudent
business practice or where required by ordinary accounting practices in the
jurisdiction in which such Plan is maintained. There are no actions, suits or
claims (other than routine claims for benefits) pending or, to the knowledge of
the Borrower, threatened against the Borrower or any Subsidiary or any ERISA
Affiliate with respect to any Foreign Employee Benefit Plan.
5.19 Patents, Trademarks, Permits, Etc. The Borrower and each of its
Subsidiaries owns, is licensed or otherwise has the lawful right to use, or has
all permits and other approvals of Governmental Authorities, patents,
trademarks, service marks, trade names, copyrights, technology, know-how and
processes used in or necessary for the conduct of its business as currently
conducted which are material to the financial condition, business, operations,
assets and prospects of the Borrower and its Subsidiaries taken as a whole. The
use of such permits and other approvals of Governmental Authorities, patents,
trademarks, service marks, trade names, copyrights, technology, know-how and
processes by the Borrower or any of its Subsidiaries does not infringe on the
rights of any Person, subject to such claims and infringements the existence of
which do not have and could not reasonably be expected to have a Material
Adverse Effect.
5.20 Note Agreement Representations. The representations and warranties of
the Borrower set forth in each of the Note Agreements are hereby incorporated by
reference herein as if such representations and warranties were set forth herein
in full.
51
5.21 Restructuring Fees. Neither the Borrower nor any Subsidiary has agreed
to or has paid any amendment fee, default premium or fee or any other fee,
premium or charge to any holder of Indebtedness in connection with the
Restructuring Transaction other than (a) the fees and charges specifically set
forth in the Wabash National Corporation Proposal for Debt Restructure letter
dated April 1, 2002, (b) the fees, costs and expenses specifically provided for
in the Master Amendment dated as of the Effective Date to certain of the Fleet
Lease Transaction documentation, (c) the extension fee paid to National City
Leasing Corporation in connection with the extension of the National City Lease
Transaction, and (d) fees paid to the Administrative Agent and the Collateral
Agent solely in their respective capacities as Administrative Agent or
Collateral Agent. The Borrower and its Subsidiaries have disclosed to the
Lenders all written fee letters or other agreements regarding the payment of the
fees and charges described in this Section 5.21 paid or agreed to in connection
with the Restructuring Transaction other than with respect to those fees which
are described in clause (d) above.
ARTICLE VI: COVENANTS
The Borrower covenants and agrees that so long as any Revolving Loan
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than contingent indemnity and reimbursement obligations),
unless the Required Lenders shall otherwise give prior written consent:
6.1 Reporting. the Borrower shall:
(A) Financial Reporting. Furnish to the Administrative Agent (which will
furnish copies of the following to the Lenders):
(i) Monthly Reports. As soon as practicable and in any event within
thirty (30) days after the end of each monthly accounting period of the
Borrower, the consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such period, and the related consolidated
statements of income and cash flow for the period commencing at the end of
the previous fiscal year and ending with the end of such period setting
forth in each case in comparative form the corresponding figures for the
corresponding date or period of the preceding fiscal year, all in
reasonable detail and duly certified (subject to year-end audit
adjustments) by the chief financial officer or treasurer of the Borrower as
having been prepared in accordance with Agreement Accounting Principles,
together with a certificate of the chief financial officer or treasurer of
the Borrower on behalf of the Borrower stating that no Unmatured Default or
Default has occurred and is continuing or, if an Unmatured Default or
Default has occurred and is continuing, a statement setting forth the
details thereof and the action which the Borrower has taken and proposes to
take with respect thereto;
(ii) Quarterly Reports. As soon as practicable, and in any event
within forty-five (45) days (or such shorter period of time as is required
by the Commission for delivery of quarterly financial statements) after the
end of each of the first three fiscal quarters in each fiscal year, the
consolidated and consolidating balance sheet of the Borrower and its
Subsidiaries as at the end of such period and the related consolidated and
consolidating statements of income and cash flow of the Borrower and its
Subsidiaries for such fiscal
52
quarter and for the period from the beginning of the then current fiscal
year to the end of such fiscal quarter, certified by the chief financial
officer or treasurer of the Borrower on behalf of the Borrower as fairly
presenting in all material respects the consolidated and consolidating
financial position of the Borrower and its Subsidiaries as at the dates
indicated and the results of their operations and cash flow for the periods
indicated in accordance with Agreement Accounting Principles, subject to
normal year end adjustments. Delivery within the time period specified
above of copies of the Borrower's Quarterly Report on Form 10-Q prepared in
compliance with the requirements therefor and filed with the Commission
shall be deemed to satisfy the requirements of this Section 6.1(A)(ii).
(iii) Annual Reports. As soon as practicable, and in any event within
ninety (90) days (or such shorter period of time as is required by the
Securities and Exchange Commission for delivery of annual financial
statements) after the end of each fiscal year (including the fiscal year
ended on or about December 31, 2001), (a) the consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as at the
end of such fiscal year and the related consolidated and consolidating
statements of income, stockholders' equity and cash flow of the Borrower
and its Subsidiaries for such fiscal year and, in comparative form the
corresponding figures for the previous fiscal year and (b) an audit report
on the items (other than the consolidating financial statements) listed in
clause (a) hereof of independent certified public accountants of recognized
national standing, which audit report shall be unqualified and shall state
that such financial statements fairly present in all material respects the
consolidated financial position of the Borrower and its Subsidiaries as at
the dates indicated and the results of their operations and cash flow for
the periods indicated in conformity with Agreement Accounting Principles
and that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with
generally accepted auditing standards. Delivery within the time period
specified above of the Borrower's Annual Report on Form 10-K for such
fiscal year (together with the Borrower's annual report to shareholders, if
any, prepared pursuant to Rule 14a-3 under the Securities Exchange Act of
1934) prepared in accordance with the requirements therefor and filed with
the Commission shall be deemed to satisfy the foregoing requirements of
this Section 6.1(A)(iii), provided that the auditors' report contained
therein satisfies the requirements specified in clause (b) above. The
deliveries made pursuant to this clause (iii) shall be accompanied by a
certificate of such accountants that, in the course of their examination
necessary for their certification of the foregoing, they have obtained no
knowledge of any Default or Unmatured Default, or if, in the opinion of
such accountants, any Default or Unmatured Default shall exist, stating the
nature and status thereof.
(iv) Officer's Certificate. Together with each delivery of any
financial statement pursuant to clauses (i), (ii) and (iii) of this Section
6.1(A), (a) an Officer's Certificate of the Borrower, substantially in the
form of Exhibit E attached hereto and made a part hereof, stating that no
Default or Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof and (b) a Compliance
Certificate, substantially in the form of Exhibit F attached hereto and
made a part hereof, signed by the Borrower's chief financial officer or
treasurer, setting forth (1) calculations
53
which demonstrate compliance with the provisions of Section 6.4 and (2) in
the case of a Compliance Certificate accompanying the financial statements
delivered pursuant to Section 6.1(A)(ii), a detailed description and
calculation of the Excess Cash Flow for the applicable fiscal quarter
then-ended;
(v) Valuations and Appraisals. By no later than such date as the
Collateral Agent may specify, such valuations, appraisals and certificates
(all costs and expenses with respect to which shall be for the account of
the Borrower) as the Collateral Agent may require with respect to the value
of the Collateral, the financial condition and insurance coverage of the
Borrower and its Subsidiaries and the material Contingent Obligations of
the Borrower and its Subsidiaries; and
(vi) Other Information. Promptly, such other information respecting
the business, properties operations or financial condition of the Borrower
or any of its Subsidiaries, or the Collateral, including, without
limitation, schedules identifying and describing the Collateral and any
dispositions thereof or any disposition of Property (and the use of the
proceeds thereof), as any Lender, the Administrative Agent may from time to
time reasonably request.
(B) Notice of Default. Promptly upon any of the chief executive officer,
chief operating officer, chief financial officer, treasurer or controller of the
Borrower obtaining knowledge (i) of any condition or event which constitutes a
Default or Unmatured Default, or becoming aware that any Lender or
Administrative Agent has given any written notice with respect to a claimed
Default or Unmatured Default under this Agreement, or (ii) that any Person has
given any written notice to the Borrower or any Subsidiary of the Borrower or
taken any other action with respect to a claimed default or event or condition
of the type referred to in Section 7.1(e), deliver to the Administrative Agent
and the Lenders an Officer's Certificate specifying (a) the nature and period of
existence of any such claimed default, Default, Unmatured Default, condition or
event, (b) the notice given or action taken by such Person in connection
therewith, and (c) what action the Borrower has taken, is taking and proposes to
take with respect thereto.
(C) Lawsuits. (i) Promptly upon the Borrower obtaining knowledge of the
institution of, or written threat of, any action, suit, proceeding, governmental
investigation or arbitration against or affecting the Borrower or any of its
Subsidiaries or any property of the Borrower or any of its Subsidiaries not
previously disclosed pursuant to Section 5.7, which action, suit, proceeding,
governmental investigation or arbitration exposes, or in the case of multiple
actions, suits, proceedings, governmental investigations or arbitrations arising
out of the same general allegations or circumstances which expose, in the
Borrower's reasonable judgment, the Borrower or any of its Subsidiaries to
liability in an amount aggregating $1,000,000 or more (exclusive of claims
covered by insurance policies of the Borrower or any of its Subsidiaries unless
the insurers of such claims have disclaimed coverage or reserved the right to
disclaim coverage on such claims and exclusive of claims covered by the
indemnity of a financially responsible indemnitor in favor of the Borrower or
any of its Subsidiaries (unless the indemnitor has disclaimed or reserved the
right to disclaim coverage thereof)), give written notice thereof to the
Administrative Agent on behalf of the Lenders and provide such other information
as may be reasonably available to enable each Lender and the Administrative
Agent and its counsel to evaluate such matters; and (ii) in addition to the
requirements set forth in clause (i) of this
54
Section 6.1(C), upon request of the Administrative Agent or the Required
Lenders, promptly give written notice of the status of any action, suit,
proceeding, governmental investigation or arbitration covered by a report
delivered pursuant to clause (i) above and provide such other information as may
be reasonably available to it that would not result in loss of any
attorney-client privilege by disclosure to the Lenders to enable each Lender and
the Administrative Agent and its counsel to evaluate such matters.
(D) Material Developments. Promptly (i) and in any event within three (3)
calendar days after the Borrower obtaining knowledge of the occurrence of any
development in the business or affairs of the Borrower or any of its
Subsidiaries which has resulted in or, which is likely in the reasonable
judgment of the Borrower to result in, a Material Adverse Effect, or affects the
value of, or the Collateral Agent's interest in, the Collateral, taken as a
whole, in any material respect, deliver to the Administrative Agent on behalf of
the Lenders a statement of the chief financial officer or treasurer of the
Borrower setting forth details of each such development and the action which the
Borrower or such Subsidiary, as the case may be, has taken and proposes to take
with respect thereto.
(E) ERISA Notices. Deliver or cause to be delivered to the Administrative
Agent and the Lenders, at the Borrower's expense, the following information and
notices as soon as reasonably possible, and in any event:
(i) (a) within ten (10) Business Days after the Borrower obtains
knowledge that a Termination Event has occurred, a written statement of the
chief financial officer of the Borrower describing such Termination Event
and the action, if any, which the Borrower has taken, is taking or proposes
to take with respect thereto, and when known, any action taken or
threatened by the IRS, DOL or PBGC with respect thereto and (b) within ten
(10) Business Days after any member of the Controlled Group obtains
knowledge that a Termination Event has occurred which could reasonably be
expected to subject the Borrower to liability in excess of $1,000,000, a
written statement of the chief financial officer of the Borrower describing
such Termination Event and the action, if any, which the member of the
Controlled Group has taken, is taking or proposes to take with respect
thereto, and when known, any action taken or threatened by the IRS, DOL or
PBGC with respect thereto;
(ii) within ten (10) Business Days after the Borrower or any of its
Subsidiaries obtains knowledge that a non-exempt prohibited transaction (as
defined in ERISA and the Code) has occurred, a statement of the chief
financial officer of the Borrower describing such transaction and the
action which the Borrower or such Subsidiary has taken, is taking or
proposes to take with respect thereto;
(iii) within ten (10) Business Days after the Borrower or any of its
Subsidiaries receives notice of any unfavorable determination letter from
the IRS regarding the qualification of a Plan under Section 401(a) of the
Code, copies of each such letter;
(iv) within ten (10) Business Days after the filing thereof with the
IRS, a copy of each funding waiver request filed with respect to any
Benefit Plan and all
55
communications received by the Borrower or a member of the Controlled Group
with respect to such request;
(v) within ten (10) Business Days after receipt by the Borrower or any
member of the Controlled Group of the PBGC's intention to terminate a
Benefit Plan or to have a trustee appointed to administer a Benefit Plan,
copies of each such notice;
(vi) within ten (10) Business Days after receipt by the Borrower or
any member of the Controlled Group of a notice from a Multiemployer Plan
regarding the imposition of withdrawal liability, copies of each such
notice;
(vii) within ten (10) Business Days after the Borrower or any member
of the Controlled Group fails to make a required installment or any other
required payment under Section 412 of the Internal Revenue Code on or
before the due date for such installment or payment, a notification of such
failure; and
(viii) within ten (10) Business Days after the Borrower or any member
of the Controlled Group knows or has reason to know that (a) a
Multiemployer Plan has been terminated, (b) the administrator or plan
sponsor of a Multiemployer Plan intends to terminate a Multiemployer Plan,
or (c) the PBGC has instituted or will institute proceedings under Section
4042 of ERISA to terminate a Multiemployer Plan.
For purposes of this Section 6.1(E), the Borrower, any of its Subsidiaries and
any member of the Controlled Group shall be deemed to know all facts known by
the Administrator of any Plan of which the Borrower or any member of the
Controlled Group or such Subsidiary is the plan sponsor.
(F) Other Reports. Deliver or cause to be delivered to the Administrative
Agent and the Lenders copies of all financial statements, reports and notices,
if any, sent or made available generally by the Borrower to owners of ownership,
membership or other equity interests in the Borrower or filed with the
Commission by the Borrower, all press releases made available generally by the
Borrower or any of the Borrower's Subsidiaries to the public concerning material
developments in the business of the Borrower or any such Subsidiary and all
notifications received from the Commission by the Borrower or its Subsidiaries
pursuant to the Securities Exchange Act and the rules promulgated thereunder.
(G) Environmental Notices. As soon as possible and in any event within ten
(10) days after receipt by the Borrower or any of its Subsidiaries, a copy of
(i) any notice or claim to the effect that the Borrower or any of its
Subsidiaries is or may be liable to any Person as a result of the Release by the
Borrower, any of its Subsidiaries, or any other Person of any Contaminant into
the environment, and (ii) any notice alleging any violation of any
Environmental, Health or Safety Requirements of Law by the Borrower or any of
its Subsidiaries if, in either case, such notice or claim relates to an event
which could reasonably be expected to subject the Borrower or any of its
Subsidiaries to liability in excess of $5,000,000.
(H) Other Information. Promptly upon receiving a request therefor from the
Administrative Agent, prepare and deliver to the Administrative Agent and the
Lenders such other information with respect to the business, Property,
prospects, condition (financial or
56
otherwise) or results of operations of the Borrower and its Subsidiaries as from
time to time may be reasonably requested by the Administrative Agent or the
Administrative Agent.
6.2 Affirmative Covenants.
(A) Existence, Etc. Except with respect to the inactive Subsidiaries
identified on Schedule 6.2(A) hereto, the Borrower shall, and shall cause each
of its Subsidiaries to, at all times maintain its existence and preserve and
keep, or cause to be preserved and kept, in full force and effect its rights and
franchises material to its businesses, and except that any Subsidiary of the
Borrower may merge with or liquidate into the Borrower or any other Subsidiary
of the Borrower, provided that the surviving entity expressly assumes any
liabilities, if any, of either of such Subsidiaries with respect to the
Obligations pursuant to an assumption agreement reasonably satisfactory to the
Administrative Agent and provided further that the consolidated net worth of the
surviving corporation is not less than the consolidated net worth of the
Subsidiary with any liability with respect to the Obligations immediately prior
to such merger. The Administrative Agent and the Lenders acknowledge that the
Borrower intends to, and the Borrower hereby agrees to, legally dissolve by no
later than sixty (60) days after the Effective Date the inactive Subsidiaries
identified on Schedule 6.2(A) hereto, and the Administrative Agent and the
Lenders expressly consent to such dissolution.
(B) Powers. The Borrower shall, and shall cause each of its Subsidiaries
to, qualify and remain qualified to do business in each jurisdiction in which
the nature of its business requires it to be so qualified and where the failure
to be so qualified will have or is reasonably likely to have a Material Adverse
Effect.
(C) Compliance with Laws, Etc. The Borrower shall, and shall cause its
Subsidiaries to, (a) comply with all Requirements of Law and all restrictive
covenants affecting such Person or the business, properties, assets or
operations of such Person, and (b) obtain as needed all permits, licenses and
franchises necessary for its operations and maintain such permits in good
standing unless failure to comply or obtain could not reasonably be anticipated
to have a Material Adverse Effect.
(D) Payment of Taxes and Claims. The Borrower shall pay, and cause each of
its Subsidiaries to pay, (i) all taxes, assessments and other governmental
charges imposed upon it or on any of its properties or assets or in respect of
any of its franchises, business, income or property before any penalty or
interest accrues thereon, and (ii) all claims (including, without limitation,
claims for labor, services, materials and supplies) for sums which have become
due and payable and which by law have or may become a Lien (other than a Lien
permitted by Section 6.3(C)) upon any of the Borrower's or such Subsidiary's
property or assets, prior to the time when any penalty or fine shall be incurred
with respect thereto; provided, however, that no such taxes, assessments and
governmental charges referred to in clause (i) above or claims referred to in
clause (ii) above (and interest, penalties or fines relating thereto) need be
paid if being contested in good faith by appropriate proceedings diligently
instituted and conducted and if such reserve or other appropriate provision, if
any, as shall be required in conformity with Agreement Accounting Principles
shall have been made therefor; and provided further that no Default or Unmatured
Default shall arise or occur with respect to this Section 6.2(D) unless
57
unpaid taxes, assessments, governmental charges and claims (other than those
being contested pursuant to the preceding proviso) exceed $1,000,000 in the
aggregate.
(E) Intentionally Omitted.
(F) Inspection of Property; Books and Records; Discussions. The Borrower
shall permit, and cause each of the Borrower's Subsidiaries to permit, (i) any
authorized representative(s) designated by either the Administrative Agent or
any Lender to visit and inspect any of the properties of the Borrower or any of
its Subsidiaries, to examine, audit, check and make copies of their respective
financial and accounting records, books, journals, orders, receipts and any
correspondence and other data relating to their respective businesses or the
transactions contemplated hereby (including, without limitation, in connection
with environmental compliance, hazard or liability), and to discuss their
affairs, finances and accounts with their directors, officers, employees and
independent certified public accountants, and (ii) permit the Collateral Agent
or any of its agents or representatives to conduct a comprehensive field audit
of its books, records, properties and assets, including without limitation, the
Collateral, all upon reasonable notice, at such reasonable times during normal
business hours, as often as may be reasonably requested and at the cost and
expense of the Borrower. The Borrower shall keep and maintain, and cause each of
the Borrower's Subsidiaries to keep and maintain, in all material respects,
proper books of record and account in which entries in conformity with Agreement
Accounting Principles shall be made of all dealings and transactions in relation
to their respective businesses and activities. If a Default has occurred and is
continuing, the Borrower, upon the Administrative Agent's request, shall turn
over any such records to the Administrative Agent or its representatives.
(G) ERISA Compliance. The Borrower shall, and shall cause each of the
Borrower's U.S. Subsidiaries to, establish, maintain and operate all Plans to
comply in all material respects with the provisions of ERISA, the Code, all
other applicable laws, and the regulations and interpretations thereunder and
the respective requirements of the governing documents for such Plans.
(H) Maintenance of Properties; Insurance. The Borrower shall maintain,
preserve and protect all Property that is material to the conduct of the
business of the Borrower or any of its Subsidiaries and keep such Property in
good repair, working order and condition and from time to time make, or cause to
be made all needful and proper repairs, renewals, additions, improvements and
replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times in accordance with
customary and prudent business practices for similar businesses; and maintain in
full force and effect insurance with responsible and reputable insurance
companies or associations in such amounts, on such terms and covering such
risks, including fire and other risks insured against by extended coverage, as
is usually carried by companies engaged in similar businesses and owning similar
properties similarly situated and maintain in full force and effect public
liability insurance, insurance against claims for personal injury or death or
property damage occurring in connection with any of its activities or any
properties owned, occupied or controlled by it, in such amounts as it shall
reasonably deem necessary, and maintain such other insurance as may be required
by law. The Borrower shall deliver to the Collateral Agent, by no later than
thirty (30) days after the Effective Date, endorsements (y) to all "All Risk"
physical damage insurance policies on all
58
of the Borrower's and its Subsidiaries' tangible personal property and assets
and business interruption insurance policies naming the Collateral Agent as loss
payee, and (z) to all general liability and other liability policies naming the
Collateral Agent as an additional insured. In the event the Borrower or any of
its Subsidiaries, at any time or times hereafter shall fail to obtain or
maintain any of the policies of insurance required herein or to pay any premium
in whole or in part relating thereto, then the Collateral Agent, without waiving
or releasing any obligations or resulting Default hereunder, may at any time or
times thereafter (but shall be under no obligation to do so) obtain and maintain
such policies of insurance and pay such premiums and take any other action with
respect thereto which the Collateral Agent deems advisable.
(I) Environmental Compliance. The Borrower and its Subsidiaries shall
comply with all Environmental, Health or Safety Requirements of Law, except
where noncompliance will not have or is not reasonably likely to subject the
Borrower and its Subsidiaries to liability, individually or in the aggregate, in
excess of $5,000,000 (excluding amounts covered by indemnity claims that are not
in dispute).
(J) Use of Proceeds. The Borrower shall use the proceeds of the Loans to
provide funds for the working capital needs and other general corporate purposes
of the Borrower and its Subsidiaries and to repay outstanding Indebtedness. The
Borrower will not, nor will it permit any Subsidiary to, use any of the proceeds
of the Loans to purchase or carry any "Margin Stock" or to make any Acquisition.
(K) Foreign Employee Benefit Compliance. The Borrower shall, and shall
cause each of its Subsidiaries and ERISA Affiliates to, establish, maintain and
operate all Foreign Employee Benefit Plans to comply in all material respects
with all laws, regulations and rules applicable thereto and the respective
requirements of the governing documents for such Plans, except for failures to
comply which, in the aggregate, would not result in liability in excess of
$1,000,000.
(L) Maintenance of Rights. The Borrower shall obtain and maintain, and
shall cause each of its Subsidiaries to obtain and maintain, in full force and
effect all licenses, franchises, permits other similar rights necessary for the
operation of its business, except where the failure to obtain or maintain such
rights does not have and could not reasonably be expected to have a Material
Adverse Effect.
(M) Conduct of Business. Subject to Sections 6.2(A) and 6.3(H), the
Borrower will continue, and will cause each Subsidiary to continue, to engage
primarily in the material lines of business which the Borrower and its
Subsidiaries operate, respectively, as of the Effective Date.
(N) Subsidiary Documentation. As soon as practicable and in any event
within 30 days after any Person becomes a Domestic Subsidiary of the Borrower,
the Borrower shall cause each such Person to execute and deliver a Guaranty to
the Administrative Agent and Collateral Documents to the Collateral Agent and to
deliver or cause to be delivered to the Administrative Agent (in the case of a
Guaranty) and the Collateral Agent (in the case of any Collateral Documents) all
related documentation with respect to the execution and delivery of such
Guaranty and Collateral Documents by such Person that the Administrative Agent
or Collateral Agent may reasonably request, including, without limitation,
certified resolutions, incumbency certificates, organizational documents and
legal opinions.
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(O) Collateral Documents. The Borrower shall execute or cause to be
executed:
(i) on or prior to the Effective Date, (a) the Security Agreement, (b)
one or more Pledge Agreements with respect to all of the Capital Stock
owned by the Borrower and its Domestic Subsidiaries of each of the Domestic
Subsidiaries in existence on the Effective Date, (c) Mortgages from each
Loan Party, accompanied by the relevant title reports with respect to such
locations as the Administrative Agent may request and (d) such vehicle
title applications (other than with respect to vehicles subject to the
Fleet Lease Transaction or the National City Lease Transaction) as the
Administrative Agent may request, accompanied by the relevant vehicle
titles and fees to be filed with the applicable Governmental Authorities to
reflect the Collateral Agent as lienholder;
(ii) (x) within five (5) Business Days after any Subsidiary becoming a
Domestic Subsidiary, a Pledge Agreement (or supplement thereto) with
respect to all of the Capital Stock of such Subsidiary owned by the
Borrower and its Domestic Subsidiaries and (y) within thirty (30) days
after any Subsidiary becoming a First Tier Foreign Subsidiary, a pledge
agreement (or supplement thereto) or share mortgage in favor of the
Collateral Agent for the benefit of the Secured Parties with respect to the
lesser of (i) 100% (or, in respect of any First Tier Foreign Subsidiary,
65% so long as a 100% pledge would cause such First Tier Foreign
Subsidiary's accumulated and undistributed earnings and profits to be
deemed to be repatriated to the Borrower or a Domestic Subsidiary for U.S.
federal income tax purposes) of all the outstanding Capital Stock of each
First Tier Foreign Subsidiary and (ii) all of the outstanding Capital Stock
of each First Tier Foreign Subsidiary currently or hereafter owned by the
Borrower and its Domestic Subsidiaries; and provided that no such pledge of
the Capital Stock of a First Tier Foreign Subsidiary shall be required
hereunder to the extent such pledge is prohibited by applicable law or the
Collateral Agent and its counsel reasonably determine that such pledge
would not provide material Collateral for the benefit of the Secured
Parties pursuant to legally binding, valid and enforceable Pledge
Agreements;
(iii) within five (5) Business Days after any Subsidiary becoming a
Guarantor, a supplement to the Security Agreement (in the form attached
thereto), and the other documents required by the Administrative Agent in
connection therewith;
(iv) within thirty (30) days after the Borrower or any Domestic
Subsidiary acquires any fee interest in real property, a Mortgage executed
by such acquiring Person, accompanied by such title reports, title
insurance, surveys, appraisals and environmental reports (collectively,
"Real Estate Instruments") as are requested by the Administrative Agent;
(v) within ten (10) days after any Loan Party acquires an ownership
interest in any vehicle and other item of rolling stock subject to a
certificate of title law, to the extent so required by the Administrative
Agent, an appropriate vehicle title application (other than with respect to
a vehicle subject to the Fleet Lease Transaction or the National City Lease
Transaction) accompanied by the relevant vehicle title and fee to be filed
with the applicable Governmental Authority to reflect the Collateral Agent
as lienholder with respect to such vehicle or other item of rolling stock;
60
and the Borrower shall deliver to the Collateral Agent all such Pledge
Agreements, Guarantees and other Collateral Documents, together with appropriate
corporate resolutions and other documentation (including opinions, UCC financing
statements, real estate title insurance policies, environmental reports, the
stock certificates representing the Capital Stock subject to such pledge, stock
powers with respect thereto executed in blank, and such other documents as shall
be reasonably requested to perfect the Lien of such pledge) in each case in form
and substance reasonably satisfactory to the Collateral Agent; provided that,
with respect to the pledge of Capital Stock in First Tier Foreign Subsidiaries
in existence on the date hereof and vehicles and real estate owned by the
Borrower or any of its Domestic Subsidiaries on the date hereof, such relevant
Pledge Agreements, vehicle title applications and Real Estate Instruments (to
the extent not being delivered on the Effective Date) are required to be
delivered to the Collateral Agent at the times and in the manner required in
writing by the Administrative Agent.
In addition to the terms and provisions set forth hereinabove, the Borrower
shall, and shall cause its Subsidiaries to, within the time periods set forth
below (to the extent such actions have not occurred on or prior to the Effective
Date), cause the following to occur:
(1) with respect to the Layfayette Property: (a) within seven (7) days of
the Effective Date, deliver an executed Mortgage and record and/or file such
Mortgage with the local recorder of deeds/registrar of titles; (b) within seven
(7) days of the Effective Date, deliver a Lender's 1970 ALTA form of title
insurance policy (or executed Pro-Forma thereof) in favor of the Collateral
Agent in the amount of the net book value of the Lafayette Property; (c) within
sixty (60) days of the Effective Date, deliver a Phase I Environmental
Assessment addressed to and in form and substance reasonably satisfactory to the
Administrative Agent, and prepared by an environmental engineering firm
reasonably acceptable to the Administrative Agent; (d) within seven (7) days of
the Effective Date, deliver a legal opinion in form and substance satisfactory
to the Administrative Agent from Baker & Daniels regarding such Mortgage; (e)
within seventy-five (75) days of the Effective Date, deliver an ALTA plat of
survey prepared by a surveyor licensed in the State of Indiana with respect to
the Layfayette Property; and (f) within sixty (60) days of delivery of the
survey, cause any necessary adjustments or modifications to the Mortgage or the
title insurance policy as may be reasonably required to reflect the survey and
the facts set forth therein on the title insurance policy and the Mortgage;
(2) with respect to each Material Real Estate Property: (a) within fifteen
(15) days of the Effective Date, deliver an executed Mortgage and record and/or
file such Mortgage with the local recorder of deeds/registrar of titles; (b)
within thirty (30) days of the Effective Date, deliver a Lender's 1970 ALTA form
of title insurance policy (or executed Pro-Forma thereof) in favor of the
Collateral Agent in the amount of the net book value of the such property; (c)
within sixty (60) days of the Effective Date, deliver a Phase I Environmental
Assessment addressed to and in form and substance reasonably satisfactory to the
Administrative Agent, and prepared by an environmental engineering firm
reasonably acceptable to the Administrative Agent; (d) within thirty (30) days
of the Effective Date, deliver a legal opinion in form and substance
satisfactory to the Administrative Agent from special local counsel reasonably
satisfactory to the Administrative Agent regarding such Mortgage; (e) within
seventy-five (75) days of the Effective Date, deliver an ALTA plat of survey
prepared by a surveyor licensed in the state where such property is located with
respect to such property; and (f) within sixty (60) days of delivery of the
survey, cause any necessary adjustments or modifications to the Mortgage or the
61
title insurance policy as may be reasonably required to reflect the survey and
the facts set forth therein on the title insurance policy and the Mortgage;
(3) with respect to each Significant Real Estate Property: (a) within
forty-five (45) days of the Effective Date, deliver an executed Mortgage and
record and/or file such Mortgage with the local recorder of deeds/registrar of
titles; and (b) within forty-five (45) days of the Effective Date, deliver a
Lender's 1970 ALTA form of title insurance policy (or executed Pro-Forma
thereof) in favor of the Collateral Agent in the amount of the net book value of
the such property;
(4) with respect to all other real property owned by the Borrower or its
Domestic Subsidiaries: (a) within sixty (60) days of the Effective Date, deliver
an executed Mortgage and record and/or file such Mortgage with the local
recorder of deeds/registrar of titles; and
(5) with respect to all properties which are anticipated to be included in
the SunTrust Sale and Leaseback, the Borrower agrees that if such SunTrust Sale
and Leaseback is not consummated on or prior to December 31, 2002, or if any
property which was anticipated to be included in such SunTrust Sale and
Leaseback and is not so included, the Borrower shall comply or cause its
Domestic Subsidiaries to comply with the terms and provisions of this Section
6.2(O) with respect to each such property on or prior to December 31, 2002 in
the case of all such properties if the SunTrust Sale and Leaseback is not
consummated and within forty-five (45) days from the date any property is no
longer anticipated to be included in the SunTrust Sale and Leaseback.
(P) Restructuring Consultant. The Borrower shall engage and retain, until
such time as the Required Lenders (as defined in the Intercreditor Agreement) so
require, a restructuring consulting firm acceptable to the Required Lenders (as
so defined) and the Borrower shall cause such restructuring consulting firm to
deliver such financial reports, statements and analysis to any Lender as such
Lender may reasonably request from time to time. The Administrative Agent and
each Lender hereby acknowledges that the Borrower has engaged and retained
PricewaterhouseCoopers as its restructuring consultant and agrees that
PricewaterhouseCoopers is acceptable to the Administrative Agent and each
Lender.
(Q) Chief Restructuring Officer. In the event the Borrower has not
appointed a full-time permanent chief executive officer by September 30, 2002,
the Borrower shall appoint and retain, until a full-time permanent chief
executive officer of the Borrower is appointed, a chief restructuring officer
with such qualifications and experience as are acceptable to the Required
Lenders (as defined in the Intercreditor Agreement), which officer shall report
directly to the Borrower's board of directors. The Borrower shall vest such
officer with control over the operations of the Borrower and its Subsidiaries.
Furthermore, until a full-time permanent chief executive officer of the Borrower
is appointed, the Borrower hereby agrees to furnish to the Administrative Agent,
promptly and in any event within (i) three (3) calendar days after the Borrower
obtaining knowledge thereof, a statement of the chief financial officer or
treasurer of the Borrower setting forth details of any and all material
developments in the Borrower's search for a full-time permanent chief executive
officer and (ii) fifteen (15) days after the end of each calendar month, a
statement of the chief financial officer or treasurer of the Borrower setting
forth details of any and all steps the Borrower proposes to take with respect to
such material developments.
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6.3 Negative Covenants.
(A) Indebtedness. Neither the Borrower nor any of its Subsidiaries shall
directly or indirectly create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness, except:
(a) the Obligations;
(b) Permitted Existing Indebtedness;
(c) Indebtedness arising from intercompany loans from the Borrower or
any Subsidiary to any Subsidiary so long as intercompany loans from the
Borrower or any Domestic Subsidiary to a Foreign Subsidiary shall not
exceed an aggregate of $5,000,000 during the term of this Agreement;
(d) Indebtedness with respect to surety, appeal and performance bonds
obtained by the Borrower or any of its Subsidiaries in the ordinary course
of business;
(e) Indebtedness constituting Contingent Obligations permitted by
Section 6.3(E);
(f) unsecured Indebtedness and other liabilities incurred in the
ordinary course of business and consistent with past practice, but not
incurred through the borrowing of money or the obtaining of credit (other
than customary trade terms);
(g) Indebtedness evidenced by the Note Agreements, Senior Notes and
Related Notes;
(h) Indebtedness incurred in connection with the Receivables Purchase
Documents; provided that Receivables Facility Attributed Indebtedness
incurred in connection therewith does not exceed $110,000,000 in the
aggregate at any time; and
(i) other unsecured Indebtedness in an aggregate principal amount not
exceeding $3,000,000 at any time outstanding.
(B) Sales of Assets. Except in connection with the SunTrust Sale and
Leaseback and the sale of any of the assets and properties or consummation of
the transactions identified on Schedule 6.3(B), neither the Borrower nor any of
its Subsidiaries shall sell, assign, transfer, lease, convey or otherwise
dispose of any property, whether now owned or hereafter acquired, or any income
or profits therefrom, or enter into any agreement to do so, except:
(i) sales of inventory in the ordinary course of business;
(ii) the disposition of obsolete equipment in the ordinary course of
business;
(iii) Permitted Receivables Transfer;
(iv) sales by Apex Trailer Leasing & Rentals, L.P. in the ordinary
course of business of lease and other finance contract receivables and
equipment subject to lease, if
63
such transaction (a) is for not less than fair market value and (b) when
combined with all other such sales during the then current fiscal year
represents disposition of not greater than 50% of Apex Trailer Leasing &
Rentals, L.P.'s Tangible Assets at the end of the immediately preceding
fiscal year;
(v) sales, assignments, transfers, leases, conveyances or other
dispositions of other assets (but not including assets of Apex Trailer
Leasing & Rentals, L.P.) if such transaction (a) is for not less than fair
market value, and (b) when combined with all such other sales, assignments,
transfers, conveyances or other dispositions during the then current fiscal
year represents the disposition of assets with a fair market value of not
greater than $5,000,000; and
(vi) transfers of assets by the Borrower or any Subsidiary to any
Subsidiary so long as (i) in the case of a transferee which is a Domestic
Subsidiary, the security interests granted pursuant to the Collateral
Documents in the events so transferred shall remain in full force and
effect and perfected and (ii) transfers of assets by the Borrower or any
Domestic Subsidiary to any Foreign Subsidiary shall not exceed an aggregate
of $1,000,000 during the term of this Agreement.
(C) Liens. Neither the Borrower nor any of its Subsidiaries shall directly
or indirectly create, incur, assume or permit to exist any Lien on or with
respect to any of their respective property or assets except:
(i) Permitted Existing Liens;
(ii) Customary Permitted Liens;
(iii) purchase money Liens (including the interest of a lessor under a
Capitalized Lease and Liens to which any property is subject at the time of
the acquisition thereof by the Borrower or one of its Subsidiaries)
securing permitted purchase money Indebtedness; provided that such Liens
shall not apply to any property of the Borrower or its Subsidiaries other
than that purchased or subject to such Capitalized Lease;
(iv) Liens arising in connection with the Permitted Receivables
Transfer;
(v) Environmental Liens securing liabilities, claims, costs or damages
not exceeding $5,000,000 in the aggregate;
(vi) Liens created by the Loan Documents; and
(vii) Liens granted by a Foreign Subsidiary on Property located in
Canada to the extent securing Indebtedness permitted by Section 6.3(A)(b).
In addition, neither the Borrower nor any or its Subsidiaries shall, after the
date hereof, become a party to any agreement, note, indenture or other
instrument (other than the Intercreditor Agreement), or take any other action,
which would prohibit the creation of a Lien on any of its properties or other
assets in favor of the Collateral Agent for the benefit of itself and the
Secured Parties as collateral for the Secured Obligations; provided that any
agreement, note, indenture or
64
other instrument in connection with permitted purchase money Indebtedness
(including Capitalized Lease Obligations) may prohibit the creation of a Lien in
favor of the Administrative Agent for the benefit of itself and the Lenders on
the items of property obtained with the proceeds of such permitted purchase
money Indebtedness; and provided further that the Receivables Purchase Documents
may prohibit the creation of a Lien in favor of the Collateral Agent for the
benefit of itself and the other Secured Parties on the assets of WNC and on the
"Transferred Assets" (as defined in the Receivables Sale Agreement) of the
Originators.
(D) Investments. Neither the Borrower nor any of its Subsidiaries shall
directly or indirectly make or own any Investment except:
(i) Investments in Cash Equivalents;
(ii) Permitted Existing Investments;
(iii) Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in
the ordinary course of business;
(iv) Investments consisting of deposit accounts maintained by the
Borrower or any of its Subsidiaries in connection with their cash
management systems;
(v) Investments with respect to Indebtedness permitted pursuant to
Section 6.3(A)(c);
(vi) Existing Investments in any Subsidiaries;
(vii) Investments consisting of minority interests and joint ventures
and loans or advances to such entities, provided that at the time any such
Investment is made the amount of all Investments under this clause (vii)
(including such new Investment, and including all Permitted Existing
Investments that are of the type covered by this clause (vii)) does not
exceed $5,000,000 at such time;
(viii) Investments in WNC required in connection with the Receivables
Purchase Documents; and
(ix) Investments in connection with Permitted Acquisitions.
(E) Contingent Obligations. Neither the Borrower nor any of its
Subsidiaries shall directly or indirectly create or become or be liable with
respect to any Contingent Obligation, except: (i) recourse obligations resulting
from endorsement of negotiable instruments for collection in the ordinary course
of business; (ii) Permitted Existing Contingent Obligations and any extensions,
renewals or replacements thereof, provided that any such extension, renewal or
replacement is not greater than the Indebtedness under, and shall be on terms no
less favorable to the Borrower or such Subsidiary than the terms of, the
Permitted Existing Contingent Obligation being extended, renewed or replaced;
(iii) obligations, warranties, and indemnities, not relating to Indebtedness of
any Person, which have been or are undertaken or made in the ordinary course of
business and not for the benefit of or in favor of an Affiliate of the Borrower
or such
65
Subsidiary; (iv) Contingent Obligations of the Borrower or any of its
Subsidiaries with respect to any Indebtedness permitted by this Agreement; and
(v) Contingent Obligations with respect to surety, appeal and performance bonds
obtained by the Borrower or any Subsidiary in the ordinary course of business.
(F) Acquisitions. Neither the Borrower nor any of its Subsidiaries shall
make any Acquisition other than a Permitted Acquisition.
(G) Transactions with Shareholders or Affiliates. Neither the Borrower nor
any of its Subsidiaries shall directly or indirectly enter into or permit to
exist any transaction (including, without limitation, the purchase, sale, lease
or exchange of any property or the rendering of any service) with any holder or
holders of any Equity Interests of the Borrower, or with any Affiliate of the
Borrower which is not its Subsidiary, on terms that are less favorable to the
Borrower or its Subsidiaries, as applicable, than those that might be obtained
in an arm's length transaction at the time from Persons who are not such a
holder or Affiliate.
(H) Restriction on Fundamental Changes. Neither the Borrower nor any of its
Subsidiaries shall enter into any merger or consolidation, or liquidate, wind-up
or dissolve (or suffer any liquidation or dissolution), or convey, lease, sell,
transfer or otherwise dispose of, in one transaction or series of transactions,
all or substantially all of the Borrower's or any such Subsidiary's business or
property, whether now or hereafter acquired, except transactions permitted under
Section 6.3(B) and except that any Subsidiary of the Borrower may merge with or
liquidate into the Borrower or any other Subsidiary of the Borrower, provided
that the surviving entity expressly assumes any liabilities, if any, of either
of such Subsidiaries with respect to the Obligations pursuant to an assumption
agreement reasonably satisfactory to the Administrative Agent and provided
further that the consolidated net worth of the surviving corporation is not less
than the consolidated net worth of the Subsidiary with any liability with
respect to the Obligations immediately prior to such merger.
(I) Margin Regulations. Neither the Borrower nor any of its Subsidiaries
shall use all or any portion of the proceeds of any credit extended under this
Agreement to purchase or carry Margin Stock.
(J) ERISA. The Borrower shall not:
(i) engage, or permit any of its Subsidiaries to engage, in any
prohibited transaction described in Sections 406 of ERISA or 4975 of the
Code for which a statutory or class exemption is not available or a private
exemption has not been previously obtained from the DOL;
(ii) permit to exist any accumulated funding deficiency (as defined in
Sections 302 of ERISA and 412 of the Internal Revenue Code), with respect
to any Benefit Plan, whether or not waived;
(iii) fail, or permit any Controlled Group member to fail, to pay
timely required contributions or annual installments due with respect to
any waived funding deficiency to any Benefit Plan;
66
(iv) terminate, or permit any Controlled Group member to terminate,
any Benefit Plan which would result in any liability of the Borrower or any
Controlled Group member under Title IV of ERISA;
(K) Fiscal Year. Neither the Borrower nor any of its consolidated
Subsidiaries shall change its fiscal year for accounting or tax purposes from a
period consisting of the 12-month period ending on December 31 of each calendar
year.
(L) Prepayment of Other Indebtedness. Neither the Borrower nor any of its
Subsidiaries shall make any optional prepayment, redemption, repurchase or
defeasance of any Indebtedness of the Borrower or any such Subsidiary which
would, in accordance with Agreement Accounting Principles, constitute long-term
Indebtedness, other than the Obligations, any intercompany indebtedness
permitted by Section 6.3(A)(c) and other Indebtedness described on Schedule
6.3(L) hereto.
(M) Limitations on Restrictive Agreements. Neither the Borrower nor any of
its Subsidiaries shall enter into, or suffer to exist, any agreement (other than
the Note Agreements) with any Person which, directly or indirectly, prohibits or
limits the ability of any Subsidiary to (i) pay dividends or make other
distributions to the Borrower or prepay any Indebtedness owed to Borrower or
(ii) transfer any of its properties or assets to the Borrower (other than with
respect to assets subject to Liens permitted by Section 6.3(C)).
(N) Leases. Except in connection with the SunTrust Sale and Leaseback, the
Fleet Lease Transaction and the National City Lease Transaction, create, incur,
assume or suffer to exist, or permit any of its Subsidiaries to create, incur,
assume or suffer to exist, any obligation as lessee for the rental or hire of
any real or personal property, except: (i) leases existing on the date of this
Agreement and any extensions or renewals thereof, but no increase in the amount
payable thereunder; and (ii) leases (other than Capitalized Leases or leases
constituting Off-Balance Sheet Liabilities) which do not in the aggregate
require the Borrower and its Subsidiaries on a consolidated basis to make
payments (including taxes, insurance, maintenance and similar expenses which the
Borrower or any Subsidiary is required to pay under the terms of any lease) at
any time during the term of this Agreement in excess of $3,500,000.
(O) Restricted Payments. Neither the Borrower nor any of its Subsidiaries
shall declare or make any Restricted Payment; provided that (a) the foregoing
shall not operate to restrict, prohibit or prevent (1) lease payments made by
the Borrower or any Subsidiary in accordance with the terms and conditions of
the Fleet Lease Transaction and the National City Lease Transaction, (2) the
payment of proceeds arising from, and upon, the disposition of Property subject
to and in accordance with the terms and conditions of the Fleet Lease
Transaction and the National City Lease Transaction and (3) distributions to the
Originators in connection with the Permitted Receivables Transfer and (b) the
Borrower may, commencing with the March 15, 2003 scheduled dividend, resume (but
may not make any payments that were previously due and not paid) making the
regularly scheduled 6% dividends on the Fruehauf Preferred Stock on a quarterly
basis in an amount per quarter not to exceed 6% of the Stated Value Per Share
(as defined in the Fruehauf Preferred Stock) so long as (i) no Unmatured Default
or Default shall have occurred and be continuing hereunder, (ii) no Unmatured
Default or Default would have occurred under the financial covenants set forth
in clause (1), (2), (3) and (4) below if such
67
financial covenants had been in full force and effect from the Effective Date to
the date of declaration of such proposed Restricted Payment on the Fruehauf
Preferred Stock and (iii) the Borrower has appointed a full-time permanent chief
executive officer as of the date of declaration of such proposed Restricted
Payment on the Fruehauf Preferred Stock.
For purposes of this Section 6.3(O), on and prior to the date of the
declaration of any proposed Restricted Payment on the Fruehauf Preferred stock
pursuant to this Section 6.3(O), the Borrower shall have, and shall have caused
each of its Subsidiaries to have, complied with the following financial
covenants set forth in clauses (1), (2), (3) and (4) below:
(1) (A) If the Borrower shall have reported a cumulative tax benefit
as of the last day of any fiscal quarter specified below, the Borrower
shall, as of the last day of such fiscal quarter, maintain Consolidated Tax
Adjusted Equity at an amount not less than the applicable "Minimum
Consolidated Tax Adjusted Equity" specified below:
Minimum Consolidated
Fiscal Quarter Ending Tax Adjusted Equity
--------------------- -------------------
June 30, 2002 $106,376,000
September 30, 2002 $113,535,000
December 31, 2002 $107,267,000
March 31, 2003 $ 99,064,000
June 30, 2003 $100,681,000
September 30, 2003 $103,283,000
December 31, 2003 $ 96,504,000
(B) If the Borrower shall not have reported a cumulative tax benefit
as of the last day of any fiscal quarter specified below, the Borrower
shall, as of the last day of such fiscal quarter, maintain Consolidated
Equity at an amount not less than the applicable "Minimum Consolidated
Equity" specified below:
Minimum Consolidated
Fiscal Quarter Ending Equity
--------------------- --------------------
June 30, 2002 $101,492,000
September 30, 2002 $110,961,000
December 31, 2002 $100,966,000
March 31, 2003 $ 87,882,000
June 30, 2003 $ 90,461,000
September 30, 2003 $ 94,751,000
December 31, 2003 $ 84,077,000
(2) (A) The Borrower shall not permit the Interest Coverage Ratio as
of the last day of each of the calendar months specified below, for the
cumulative period commencing on April, 2002 and ending on the last day of
such calendar month, to be less than the applicable "Minimum Interest
Coverage Ratio" specified below:
68
Minimum Interest
Fiscal Quarter Ending Coverage Ratio
--------------------- ----------------
June 30, 2002 1.50 to 1
September 30, 2002 1.50 to 1
December 31, 2002 1.25 to 1
(B) The Borrower shall not permit the Interest Coverage Ratio as of
the last day of each fiscal quarter of the Borrower specified below, for
the period of four consecutive fiscal quarters then ending, to be less than
the applicable "Minimum Interest Coverage Ratio" specified below:
Minimum Interest
Fiscal Quarter Ending Coverage Ratio
--------------------- --------------
March 31, 2003 1.25 to 1
June 30, 2003 1.25 to 1
September 30, 2003 1.25 to 1
December 31, 2003 1.25 to 1
(3) The Borrower shall, as of the last day of each of the calendar
months specified below, maintain Consolidated EBITDA for the cumulative
period commencing on April 1, 2002 and ending on the last day of such
calendar month, at an amount not less than the applicable "Minimum
Cumulative Consolidated EBITDA" specified below:
Minimum Cumulative
Consolidated
Month Ending EBITDA
------------ -----------------
April 30, 2002 $ 3,841,000
May 31, 2002 $ 8,389,000
June 30, 2002 $14,722,000
July 31, 2002 $22,084,000
August 31 2002 $28,732,000
September 30, 2002 $33,110,000
October 31, 2002 $36,753,000
November 30, 2002 $37,818,000
December 31, 2002 $37,856,000
(4) The Borrower shall, as of the last day of each of the calendar
months specified below, maintain Consolidated EBITDA at an amount not less
than the applicable "Minimum Rolling 12 Month Consolidated EBITDA"
specified below for the period of 12 consecutive calendar months then
ending:
69
Minimum Rolling 12
Month Consolidated
Month Ending EBITDA
------------ ------------------
January 31, 2003 $36,135,000
February 28, 2003 $36,620,000
March 31, 2003 $39,301,000
April 30, 2003 $40,541,000
May 31, 2003 $41,276,000
June 30, 2003 $42,192,000
July 31, 2003 $42,877,000
August 31, 2003 $43,422,000
September 30, 2003 $43,784,000
October 31, 2003 $43,941,000
November 30, 2003 $43,828,000
December 31, 2003 $43,539,000
January 31, 2004 $42,539,000
(P) Hedging Obligations. Enter into any interest rate, commodity or foreign
currency exchange, swap, collar, cap or similar agreements evidencing Hedging
Obligations, other than interest rate, foreign currency or commodity exchange,
swap, collar, cap or similar agreements entered into by the Borrower pursuant to
which the Borrower has hedged its actual or forecasted interest rate, foreign
currency or commodity exposure. Such permitted hedging agreements entered into
by the Borrower and any Lender or any affiliate of any Lender to hedge floating
interest rate risk in an aggregate notional amount not to exceed at any time an
amount equal to the outstanding balance of the Term Loans and the principal
Indebtedness under the Note Agreements at such time are sometimes referred to
herein as "INTEREST RATE AGREEMENTS".
(Q) Sales and Leasebacks. Neither the Borrower nor any of its Subsidiaries
shall become liable, directly, by assumption or by Contingent Obligation, with
respect to any lease, whether an operating lease or a Capitalized Lease, of any
Property (whether real or personal or mixed) (i) which it or one of its
Subsidiaries sold or transferred or is to sell or transfer to any other Person,
or (ii) which it or one of its Subsidiaries intends to use for substantially the
same purposes as any other Property which has been or is to be sold or
transferred by it or one of its Subsidiaries to any other Person in connection
with such lease, unless (a) in either case the sale involved is not prohibited
under Section 6.3(B) and the lease involved is not prohibited under Section
6.3(A) or (b) such sale and leaseback transaction is the SunTrust Sale and
Leaseback. The parties hereto acknowledge and agree that (1) the foregoing shall
not operate to restrict, prohibit or prevent the Fleet Lease Transaction and the
National City Lease Transaction and (2) the Borrower and its Subsidiaries are
permitted to dispose of Property pursuant to the SunTrust Sale and Leaseback and
the Collateral Agent is authorized to release its Liens on such Property in
connection with such disposition.
(R) Issuance of Disqualified and Preferred Stock. Neither the Borrower nor
any of its Subsidiaries shall issue any Disqualified Stock. The Borrower shall
not issue any new shares of preferred stock and shall not permit any Subsidiary
to issue any shares of preferred stock.
70
(S) Corporate Documents. Neither the Borrower nor any of its Subsidiaries
shall amend, modify or otherwise change any of the terms or provisions in any of
their respective constituent documents as in effect on the date hereof in any
manner materially adverse to the ability of the Borrower or any of its
Subsidiaries to perform their respective obligations under the Loan Documents,
without the prior written consent of the Required Lenders.
(T) Other Indebtedness. The Borrower shall not amend, modify or supplement,
or permit any Subsidiary to amend, modify or supplement (or consent to any
amendment, modification or supplement of), any document, agreement or instrument
evidencing the Note Agreements, the Senior Notes, the Related Notes, the
National City Lease Transaction, the Fleet Lease Transaction, the Permitted
Receivables Transfer or Subordinated Indebtedness (or any replacements,
substitutions or renewals thereof) or pursuant to which any such Indebtedness is
issued where such amendment, modification or supplement provides for the
following or which has any of the following effects:
(i) increases the overall principal amount of any such Indebtedness or
increases the amount of any single scheduled installment of principal or
interest;
(ii) shortens or accelerates the date upon which any installment of
principal or interest becomes due or adds any additional mandatory
redemption provisions;
(iii) shortens the final maturity date of such Indebtedness or
otherwise accelerates the amortization schedule with respect to such
Indebtedness;
(iv) increases the rate of interest accruing on such Indebtedness;
(v) provides for the payment of additional fees or increases existing
fees;
(vi) amends or modifies any financial or negative covenant (or
covenant which prohibits or restricts the Borrower or a Subsidiary of the
Borrower from taking certain actions) in a manner which is more onerous or
more restrictive to the Borrower (or any Subsidiary of the Borrower) or
which is otherwise materially adverse to the Borrower and/or the Lenders
or, in the case of adding covenants, which places additional restrictions
on the Borrower (or a Subsidiary of the Borrower) or which requires the
Borrower or any such Subsidiary to comply with more restrictive covenants
than the covenants set forth herein or which requires the Borrower to
better its financial performance from that set forth in the financial
covenants set forth herein;
(vii) amends, modifies or adds any covenant in a manner which, when
taken as a whole, is materially adverse to the Borrower and/or the Lenders;
(viii) amends, modifies or supplements any subordination provisions
thereof; or
(ix) amends or modifies the limitations on transfer provided therein.
(U) No Changes to Standard Warranty. The Borrower shall not, and shall
cause its Subsidiaries to not, make any material changes to the warranty
policies of the Borrower and its Subsidiaries in effect on the date of this
Agreement.
71
(V) Prohibition Against Trade-In Value Guaranties. The Borrower shall not,
and shall cause its Subsidiaries to not, make any guarantee of trade-in values
of trailers beyond six months in duration.
6.4 Financial Covenants. The Borrower shall, and shall cause each of its
Subsidiaries to, comply with the following:
(A) Minimum Consolidated Tax Adjusted Equity. If the Borrower shall have
reported a cumulative tax benefit as of the last day of any fiscal quarter
specified below, the Borrower shall, as of the last day of such fiscal quarter,
maintain Consolidated Tax Adjusted Equity at an amount not less than the
applicable "Minimum Consolidated Tax Adjusted Equity" specified below:
Minimum Consolidated Tax
Fiscal Quarter Ending Adjusted Equity
--------------------- ------------------------
March 31, 2003 $ 99,064,000
June 30, 2003 $100,681,000
September 30, 2003 $103,283,000
December 31, 2003 $ 96,504,000
(B) Minimum Consolidated Equity. If the Borrower shall not have reported a
cumulative tax benefit as of the last day of any fiscal quarter specified below,
the Borrower shall, as of the last day of such fiscal quarter, maintain
Consolidated Equity at an amount not less than the applicable "Minimum
Consolidated Equity" specified below:
Minimum Consolidated
Fiscal Quarter Ending Equity
--------------------- --------------------
March 31, 2003 $87,882,000
June 30, 2003 $90,461,000
September 30, 2003 $94,751,000
December 31, 2003 $84,077,000
(C) Maximum Leverage Valuation Ratio. The Borrower shall not permit, as of
the last day of each of the fiscal quarters specified below, the Leverage
Valuation Ratio to exceed the applicable "Maximum Leverage Valuation Ratio"
specified below:
Maximum Leverage
Fiscal Quarter Ending Valuation Ratio
--------------------- ----------------
June 30, 2002 0.95 to 1
September 30, 2002 0.95 to 1
December 31, 2002 0.95 to 1
March 31, 2003 0.85 to 1
June 30, 2003 0.80 to 1
September 30, 2003 0.80 to 1
December 31, 2003 0.75 to 1
72
(D) Minimum Consolidated EBITDA. (i) The Borrower shall, as of the last day
of each of the fiscal quarters of the Borrower occurring in calendar year 2002,
maintain Consolidated EBITDA for the cumulative period commencing on April 1,
2002 and ending on the last day of such fiscal quarter, at an amount not less
than $(20,000,000).
(ii) The Borrower shall, as of the last day of the calendar months
specified below, maintain Consolidated EBITDA at an amount not less than
the applicable "Minimum Rolling 12 Month Consolidated EBITDA" specified
below for the period of 12 consecutive calendar months then ending:
Minimum Rolling 12 Month
Month Ending Consolidated EBITDA
------------ ------------------------
January 31, 2003 $36,135,000
February 28, 2003 $36,620,000
March 31, 2003 $39,301,000
April 30, 2003 $40,541,000
May 31, 2003 $41,276,000
June 30, 2003 $42,192,000
July 31, 2003 $42,877,000
August 31, 2003 $43,422,000
September 30, 2003 $43,784,000
October 31, 2003 $43,941,000
November 30, 2003 $43,828,000
December 31, 2003 $43,539,000
January 31, 2004 $42,539,000
(E) Minimum Interest Coverage Ratio. The Borrower shall not permit the
Interest Coverage Ratio as of the last day of each fiscal quarter of the
Borrower (commencing with the fiscal quarter ending on or about March 31, 2003),
for the period of four consecutive fiscal quarters then ending, to be less than
1.25 to 1.
(F) Maximum Capital Expenditures. The Borrower will not, and will not
permit any Subsidiary to, expend for Capital Expenditures during any fiscal year
of the Borrower and its Subsidiaries, in excess of $6,000,000 in the aggregate
for the Borrower and its Subsidiaries.
(G) Maximum Finance Contracts. The Borrower will not, and will not permit
any Subsidiary to, enter into any new Finance Contract if and to the extent that
the sum of such Finance Contract (a) when added to the aggregate amount of all
Finance Contracts entered into by the Borrower or any of its Subsidiaries during
the twelve (12) month period that commences on the Effective Date exceeds
$5,000,000 or (b) when added to the aggregate amount of all Finance Contracts
entered by the Borrower or any of its Subsidiaries during the twelve (12) month
period that commences on the first (1st) anniversary of the Effective Date
exceeds $5,000,000.
73
ARTICLE VII: DEFAULTS
7.1 Defaults. Each of the following occurrences shall constitute a Default
under this Agreement:
(a) Failure to Make Payments When Due. The Borrower shall (i) fail to pay
when due any of the Obligations consisting of principal with respect to the
Loans or (ii) shall fail to pay within three (3) Business Days of the date when
due any of the other Obligations under this Agreement or the other Loan
Documents.
(b) Breach of Certain Covenants. The Borrower shall fail duly and
punctually to perform or observe any agreement, covenant or obligation binding
on the Borrower under:
(i) Sections 6.1(C), 6.1(D), 6.1(E), 6.1(F), 6.1(G), 6.2(B), 6.2(C) or
6.2(F) and such failure shall continue unremedied for fifteen (15) days;
(ii) Section 6.1(A) or 6.1(B) or Section 6.2(N) or Section 6.2(O) or
Section 6.2(P) or Section 6.2(Q) and such failure shall continue unremedied
for five (5) Business Days; or
(iii) Section 6.3 or 6.4.
(c) Breach of Representation or Warranty. Any representation or warranty
made or deemed made by the Borrower to the Collateral Agent, the Administrative
Agent or any Lender herein or by the Borrower or any of its Subsidiaries in any
of the other Loan Documents or in any statement or certificate at any time given
by any such Person pursuant to any of the Loan Documents shall be false or
misleading in any material respect on the date as of which made (or deemed
made).
(d) Other Defaults. The Borrower shall default in the performance of or
compliance with any term contained in this Agreement (other than as covered by
paragraphs (a), (b) or (c) of this Section 7.1), or the Borrower or any of its
Subsidiaries shall default in the performance of or compliance with any term
contained in any of the other Loan Documents, and such default shall continue
for thirty (30) days after the earlier of (i) notice from the Administrative
Agent or the Collateral Agent or (ii) the date on which the Borrower knew of
such default or should have known of such default exercising reasonable
diligence.
(e) Default as to Other Indebtedness. Any of the Borrower or any of its
Subsidiaries shall fail to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise) with respect
to any Indebtedness (other than the Obligations) the outstanding principal
amount of which Indebtedness is in excess of $2,000,000; or any breach, default
or event of default shall occur, or any other condition shall exist under any
instrument, agreement or indenture pertaining to any such Indebtedness, if the
effect thereof is to cause an acceleration, mandatory redemption, a requirement
that the Borrower or any such Subsidiary offer to purchase such Indebtedness or
other required repurchase of such Indebtedness, or permit the holder(s) of such
Indebtedness to accelerate the maturity of any such Indebtedness or require a
redemption or other repurchase of such Indebtedness; or any such Indebtedness
shall be otherwise declared to be due and payable (by acceleration or otherwise)
or
74
required to be prepaid, redeemed or otherwise repurchased by the Borrower or any
of its Subsidiaries (other than by a regularly scheduled required prepayment)
prior to the stated maturity thereof.
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the Borrower or any
of its Subsidiaries and the petition shall not be dismissed, stayed, bonded
or discharged within sixty (60) days after commencement of the case; or a
court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Borrower or any of its Subsidiaries in an
involuntary case, under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect; or any other similar relief shall
be granted under any applicable federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the premises
for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over the Borrower or any
of its Subsidiaries or over all or a substantial part of the property of
the Borrower or any of its Subsidiaries shall be entered; or an interim
receiver, trustee or other custodian of the Borrower or any of its
Subsidiaries or of all or a substantial part of the property of the
Borrower or any of its Subsidiaries shall be appointed or a warrant of
attachment, execution or similar process against any substantial part of
the property of the Borrower or any of its Subsidiaries shall be issued and
any such event shall not be stayed, dismissed, bonded or discharged within
sixty (60) days after entry, appointment or issuance.
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Borrower or any
of its Subsidiaries shall (i) commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, (ii)
consent to the entry of an order for relief in an involuntary case, or to the
conversion of an involuntary case to a voluntary case, under any such law, (iii)
consent to the appointment of or taking possession by a receiver, trustee or
other custodian for all or a substantial part of its property, (iv) make any
assignment for the benefit of creditors or (v) take any corporate, partnership
or comparable action to authorize any of the foregoing.
(h) Judgments and Attachments. Any money judgment(s) (other than a money
judgment covered by insurance as to which the insurance company has not
disclaimed or reserved the right to disclaim coverage), writ or warrant of
attachment, or similar process against any of the Borrower or any of its
Subsidiaries or any of their respective assets involving in any single case or
in the aggregate an amount in excess of $1,000,000 is (are) entered and shall
remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60)
days or in any event later than fifteen (15) days prior to the date of any
proposed sale thereunder.
(i) Dissolution. Any order, judgment or decree shall be entered against the
Borrower or any of its Subsidiaries decreeing its involuntary dissolution or
split up and such order shall remain undischarged and unstayed for a period in
excess of sixty (60) days; or the Borrower or any of its Subsidiaries shall
otherwise dissolve or cease to exist except as specifically permitted
75
by this Agreement unless the dissolving entity is a limited liability company
which elects to continue its existence.
(j) Loan Documents; Failure of Security. At any time, for any reason, (i)
any Loan Document as a whole that materially affects the ability of the
Administrative Agent, the Collateral Agent or any of the Lenders to enforce the
Obligations against the Borrower or any Guarantor or enforce their rights
against the Collateral ceases to be in full force and effect or (ii) any Loan
Party seeks to repudiate its obligations thereunder or (iii) after the execution
and delivery of the Collateral Documents, except to the extent permitted by the
terms thereof, the Collateral Documents, shall cease to create a valid and
perfected first priority Lien subject only to Liens permitted by the Loan
Documents in any of the Collateral purported to be covered thereby or (iv) any
title insurance coverage in respect of any Material portion of the Collateral is
disavowed or become ineffective.
(k) Termination Event. Any Termination Event occurs which the Required
Lenders believe is reasonably likely to subject the Borrower or any of its
Subsidiaries to liability in excess of $1,000,000.
(l) Waiver of Minimum Funding Standard. If the plan administrator of any
Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Code and any Lender believes the
substantial business hardship upon which the application for the waiver is based
could reasonably be expected to subject either the Borrower or any Controlled
Group member to liability in excess of $1,000,000.
(m) Change of Control. A Change of Control shall occur.
(n) Environmental Matters. The Borrower or any of its Subsidiaries shall be
the subject of any proceeding or investigation pertaining to (i) the Release by
the Borrower or any of its Subsidiaries of any Contaminant into the environment,
(ii) the liability of any of the Borrower or any of its Subsidiaries arising
from the Release by any other Person of any Contaminant into the environment, or
(iii) any violation of any Environmental, Health or Safety Requirements of Law
by the Borrower or any of its Subsidiaries, which, in any case, has or is
reasonably likely to subject the Borrower or any of its Subsidiaries to
liability individually or in the aggregate in excess of $5,000,000 (exclusive of
liabilities with respect to which the Borrower is maintaining reserves as of the
date hereof in accordance with Agreement Accounting Principles).
(o) Collateral Documents. The Borrower or any Subsidiary shall fail to
comply with any of the terms or provisions of any Collateral Document for five
(5) Business Days, subject to any applicable cure periods contained therein,
after notice of such non-compliance from the Collateral Agent.
(p) Interest Rate Agreements. Nonpayment by the Borrower or any Subsidiary
of any obligation under any Interest Rate Agreement or the breach by the
Borrower or any Subsidiary of any term, provision or condition contained in any
such Interest Rate Agreement.
(q) Material Adverse Effect. A Material Adverse Effect shall occur.
76
(r) Intercreditor Agreement. The intercreditor provisions of the
Intercreditor Agreement shall for any reason be revoked or invalidated, or
otherwise cease to be in full force and effect, any Person (including any
Secured Party) shall contest in any manner the validity or enforceability
thereof or deny that it has any further liability or obligation thereunder, or
the Obligations hereunder shall for any reason be subordinated or shall not have
the priority contemplated by this Agreement and the Intercreditor Agreement.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with Section 8.3.
ARTICLE VIII: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES
8.1 Remedies
(a) Termination of Revolving Loan Commitments; Acceleration. If any Default
described in Section 7.1(f) or 7.1(g) occurs with respect to the Borrower, the
obligations of the Revolving Lenders to make Revolving Loans hereunder and the
obligation of the Issuing Lender to issue Revolver Letters of Credit hereunder
shall automatically terminate and the Obligations shall immediately become due
and payable without any election or action on the part of the Administrative
Agent, any Lender or the Issuing Lender. If any other Default occurs, (i) the
Lenders with Revolving Loan Pro Rata Shares greater than fifty percent (50%) may
terminate or suspend the obligations of the Revolving Lenders to make Revolving
Loans hereunder and the obligation of the Issuing Lender to issue Revolver
Letters of Credit hereunder, or (ii) the Required Lenders may declare the
Obligations to be due and payable, or both, and upon any declaration under
clause (ii), the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which the Borrower
expressly waives.
(b) Rescission. If at any time after termination of the Revolving Lenders'
obligations to make Revolving Loans or acceleration of the maturity of the
Loans, Borrower shall pay all arrears of interest and all payments on account of
principal of the Obligations which shall have become due otherwise than by
acceleration (with interest on principal and, to the extent permitted by law, on
overdue interest, at the rates specified in this Agreement) and all Defaults and
Unmatured Defaults (other than nonpayment of principal of and accrued interest
on the Loans due and payable solely by virtue of acceleration) shall be remedied
or waived pursuant to Section 8.3, then upon the written consent of the Required
Lenders and written notice to the Borrower, the termination of Revolving
Lenders' respective obligations to make Revolving Loans and the respective
Revolving Lenders' and the Issuing Lender's obligations to participate in or
issue Letters of Credit or the aforesaid acceleration and its consequences may
be rescinded and annulled; but such action shall not affect any subsequent
Default or Unmatured Default or impair any right or remedy consequent thereon.
The provisions of the preceding sentence are intended merely to bind the Lenders
and the Issuing Lender to a decision which may be made at the election of the
Required Lenders; they are not intended to benefit the Borrower and do not give
the Borrower the right to require the Lenders to rescind or annul any
termination of the aforesaid obligations of the Lenders or the Issuing Lender or
any acceleration hereunder, even if the conditions set forth herein are met.
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(c) Enforcement. The Borrower acknowledges that in the event the Borrower
fails to perform, observe or discharge any of its obligations or liabilities
under this Agreement or any other Loan Document, any remedy of law may prove to
be inadequate relief to the Administrative Agent, the Issuing Lender and the
Lenders; therefore, the Borrower agrees that the Administrative Agent, the
Issuing Lender and the Lenders shall be entitled to temporary and permanent
injunctive relief in any such case without the necessity of proving actual
damages.
8.2 Defaulting Lender. In the event that any Revolving Lender fails to fund
its Revolving Loan Pro Rata Share of any Revolving Advance requested or deemed
requested by the Borrower which such Revolving Lender is obligated to fund under
the terms of this Agreement (the funded portion of such Advance being
hereinafter referred to as a "NON PRO RATA REVOLVING LOAN"), until the earlier
of such Revolving Lender's cure of such failure and the termination of the
Revolving Loan Commitments, the proceeds of all amounts thereafter repaid to the
Administrative Agent by the Borrower and otherwise required to be applied to
such Revolving Lender's share of all other Obligations pursuant to the terms of
this Agreement shall be advanced to the Borrower by the Administrative Agent
("CURE LOANS") on behalf of such Revolving Lender to cure, in full or in part,
such failure by such Revolving Lender, but shall nevertheless be deemed to have
been paid to such Revolving Lender in satisfaction of such other Obligations.
Notwithstanding anything in this Agreement to the contrary:
(i) the foregoing provisions of this Section 8.2 shall apply only with
respect to the proceeds of payments of Obligations and shall not affect the
conversion or continuation of Loans pursuant to Section 2.8;
(ii) any such Revolving Lender shall be deemed to have cured its
failure to fund its Revolving Loan Pro Rata Share of any Revolving Advance
at such time as an amount equal to such Revolving Lender's original
Revolving Loan Pro Rata Share of the requested principal portion of such
Advance is fully funded to the Borrower, whether made by such Revolving
Lender itself or by operation of the terms of this Section 8.2, and whether
or not the Non Pro Rata Revolving Loan with respect thereto has been
repaid, converted or continued;
(iii) amounts advanced to the Borrower to cure, in full or in part,
any such Revolving Lender's failure to fund its Revolving Loan Pro Rata
Share of any Revolving Advance shall bear interest at the rate applicable
to Revolving Loans which are Base Rate Loans, in effect from time to time,
and for all other purposes of this Agreement shall be treated as if they
were Base Rate Loans;
(iv) regardless of whether or not a Default has occurred or is
continuing, and notwithstanding the instructions of the Borrower as to its
desired application, all repayments of principal which, in accordance with
the other terms of this Agreement, would be applied to the outstanding Base
Rate Loans shall be applied first, ratably to all Base Rate Loans
constituting Non Pro Rata Revolving Loans, second, ratably to Base Rate
Loans other than those constituting Non Pro Rata Revolving Loans or Cure
Loans and, third, ratably to Base Rate Loans constituting Cure Loans; and
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(v) for so long as and until any such Revolving Lender's failure to
fund its Revolving Loan Pro Rata Share of any Revolving Advance is cured in
accordance with Section 8.2(ii), (A) such Revolving Lender shall not be
entitled to any commitment fees with respect to its Revolving Loan
Commitment and (B) such Revolving Lender shall not be entitled to any
letter of credit fees, which commitment fees and letter of credit fees
shall accrue in favor of the Revolving Lenders which have funded their
respective Revolving Loan Pro Rata Share of such requested Advance, shall
be allocated among such performing Revolving Lenders ratably based upon
their relative Revolving Loan Commitments, and shall be calculated based
upon the average amount by which the Aggregate Revolving Loan Commitment of
such performing Revolving Lenders exceeds the sum of (I) the outstanding
principal amount of the Revolving Loans owing to such performing Revolving
Lenders, plus (II) the outstanding Reimbursement Obligations owing to such
performing Revolving Lenders, plus (III) the aggregate participation
interests of such performing Revolving Lenders arising pursuant to Section
2.20 with respect to undrawn and outstanding Letters of Credit.
8.3 Amendments. Subject to the provisions of this Article VIII, the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Borrower may enter into agreements supplemental hereto
for the purpose of adding or modifying any provisions to the Loan Documents or
changing in any manner the rights of the Lenders or the Borrower hereunder or
waiving any Default hereunder; provided, however, that no such supplemental
agreement shall, without the consent of each Lender affected thereby:
(i) Postpone or extend the Termination Date, or any other date fixed
for any payment of principal of, or interest on, the Loans, the
Reimbursement Obligations or any fees or other amounts payable to such
Lender (except with respect to a waiver of the application of the default
rate of interest pursuant to Section 2.11 hereof).
(ii) Reduce the principal Dollar Amount of any Loans or L/C
Obligations, or reduce the rate or extend the time of payment of interest
or fees thereon (except with respect to a waiver of the application of the
default rate of interest pursuant to Section 2.11 hereof).
(iii) Reduce the percentage specified in the definition of Required
Lenders or any other percentage of Lenders specified to be the applicable
percentage in this Agreement to act on specified matters or amend the
definitions of "Required Lenders" or "Pro Rata Share".
(iv) Increase the amount of any Revolving Loan Commitment of any
Revolving Lender hereunder or increase any Revolving Lender's Revolving
Loan Pro Rata Share.
(v) Permit the Borrower to assign its rights under this Agreement.
(vi) Release any Loan Party from its obligations under the Guaranty or
any Collateral Document.
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(vii) Other than pursuant to a transaction permitted by the terms of
this Agreement or any Loan Document, release all or substantially all of
the Collateral which is subject to the Loan Documents.
(viii) Amend this Section 8.3.
No amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent. No amendment of any provision of this Agreement relating to the Issuing
Lender shall be effective without the written consent of the Administrative
Agent and the Issuing Lender. The Administrative Agent may waive payment of the
fee required under Section 12.3(B) without obtaining the consent of any of the
Lenders.
8.4 Preservation of Rights. No delay or omission of the Lenders, the
Issuing Lender or the Administrative Agent to exercise any right under the Loan
Documents shall impair such right or be construed to be a waiver of any Default
or an acquiescence therein, and the making of a Loan or the issuance of a Letter
of Credit notwithstanding the existence of a Default or the inability of the
Borrower to satisfy the conditions precedent to such Loan or issuance of such
Letter of Credit shall not constitute any waiver or acquiescence. Any single or
partial exercise of any such right shall not preclude other or further exercise
thereof or the exercise of any other right, and no waiver, amendment or other
variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the Lenders required
pursuant to Section 8.3, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Administrative
Agent and the Lenders until the Obligations have been paid in full.
ARTICLE IX: GENERAL PROVISIONS
9.1 Survival of Representations. All representations and warranties of the
Borrower contained in this Agreement shall survive delivery of any Notes and the
making of the Loans herein contemplated.
9.2 Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower and neither the Administrative Agent nor the Issuing Lender shall be
obligated to issue any Letter of Credit for the account of the Borrower in
violation of any limitation or prohibition provided by any applicable statute or
regulation.
9.3 Headings. Section headings in the Loan Documents are for convenience of
reference only, and shall not govern the interpretation of any of the provisions
of the Loan Documents.
9.4 Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrower, the Administrative Agent and the Lenders and
supersede all prior agreements and understandings among the Borrower, the
Administrative Agent and the Lenders relating to the subject matter thereof.
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9.5 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender. The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.
9.6 Expenses; Indemnification.
(A) Expenses. The Borrower shall reimburse the Administrative Agent for any
reasonable costs, internal charges and out-of-pocket expenses (including (i)
attorneys' and paralegals' fees and time charges of attorneys and paralegals for
the Administrative Agent, which attorneys and paralegals may be employees of the
Administrative Agent and (ii) other advisors and professionals engaged from time
to time by the Administrative Agent) paid or incurred by either the
Administrative Agent in connection with the preparation, negotiation, execution,
delivery, syndication, review, amendment, modification, and administration of
the Loan Documents or in connection with any work-out or restructuring of the
transactions contemplated hereby, including without limitation, the reasonable
professional fees and expenses of Ernst & Young Corporate Finance LLC incurred
in connection with its engagement to assist the Lenders in their evaluation of
the projections, business assumptions and other financial information presented
by the Borrower in connection with the transactions contemplated herein. All
such fees, costs and expenses incurred after the Effective Date shall be paid by
the Borrower on a monthly basis. The Borrower also agrees to reimburse the
Administrative Agent, the Lenders and the Issuing Lender for any costs, internal
charges and out-of-pocket expenses (including attorneys' and paralegals' fees
and time charges of attorneys and paralegals for the Administrative Agent, the
Lenders and the Issuing Lender, which attorneys and paralegals may be employees
of the Administrative Agent, the Lenders or the Issuing Lender) paid or incurred
by the Administrative Agent, any Lender or the Issuing Lender in connection with
the collection of the Obligations and enforcement of the Loan Documents.
(B) Indemnity. The Borrower further agrees to defend, protect, indemnify,
and hold harmless the Administrative Agent, each and all of the Lenders, the
Issuing Lender and each of their respective Affiliates, and each of such
Administrative Agent's, Lender's, Issuing Lender's or Affiliate's respective
officers, directors, employees, attorneys and agents (including, without
limitation, those retained in connection with the satisfaction or attempted
satisfaction of any of the conditions set forth in Article IV) (collectively,
the "INDEMNITEES") from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs, expenses
of any kind or nature whatsoever (including, without limitation, the fees and
disbursements of counsel for such Indemnitees in connection with any
investigative, administrative or judicial proceeding, whether or not such
Indemnitees shall be designated a party thereto), imposed on, incurred by, or
asserted against such Indemnitees in any manner relating to or arising out of:
(i) this Agreement, the other Loan Documents, or any act, event or
transaction related or attendant thereto, the making of or participating in
the Loans, and the issuance of and participation in Letters of Credit
hereunder, the management of such Loans or
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Letters of Credit, the use or intended use of the proceeds of the Loans or
Letters of Credit hereunder, or any of the other transactions contemplated
by the Loan Documents; or
(ii) any liabilities, obligations, responsibilities, losses, damages,
personal injury, death, punitive damages, economic damages, consequential
damages, treble damages, intentional, willful or wanton injury, damage or
threat to the environment, natural resources or public health or welfare,
costs and expenses (including, without limitation, attorney, expert and
consulting fees and costs of investigation, feasibility or remedial action
studies), fines, penalties and monetary sanctions, interest, direct or
indirect, known or unknown, absolute or contingent, past, present or future
relating to violation of any Environmental, Health or Safety Requirements
of Law arising from or in connection with the past, present or future
operations of the Borrower, its Subsidiaries or any of their respective
predecessors in interest, or, the past, present or future environmental,
health or safety condition of any respective property of the Borrower or
its Subsidiaries, the presence of asbestos-containing materials at any
respective property of the Borrower or its Subsidiaries or the Release or
threatened Release of any Contaminant into the environment (collectively,
the "INDEMNIFIED MATTERS");
provided, however, the Borrower shall have no obligation to an Indemnitee
hereunder with respect to Indemnified Matters caused solely by or resulting
solely from the willful misconduct or Gross Negligence of such Indemnitee or
breach of contract by such Indemnitee with respect to the Loan Documents, in
each case, as determined by the final non-appealable judgment of a court of
competent jurisdiction. If the undertaking to indemnify, pay and hold harmless
set forth in the preceding sentence may be unenforceable because it is violative
of any law or public policy, the Borrower shall contribute the maximum portion
which it is permitted to pay and satisfy under applicable law, to the payment
and satisfaction of all Indemnified Matters incurred by the Indemnitees.
(C) Waiver of Certain Claims; Settlement of Claims. The Borrower further
agrees to assert no claim against any of the Indemnitees on any theory of
liability for consequential, special, indirect, exemplary or punitive damages.
No settlement shall be entered into by the Borrower or any of its Subsidiaries
with respect to any claim, litigation, arbitration or other proceeding relating
to or arising out of the transactions evidenced by this Agreement or the other
Loan Documents (whether or not the Administrative Agent, any Lender, the Issuing
Lender or any Indemnitee is a party thereto) unless such settlement releases all
Indemnitees from any and all liability with respect thereto.
(D) Survival of Agreements. The obligations and agreements of the Borrower
under this Section 9.6 shall survive the termination of this Agreement.
9.7 Numbers of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
9.8 Accounting. Except as provided to the contrary herein, all accounting
terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with Agreement Accounting Principles.
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9.9 Severability of Provisions. Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
9.10 Nonliability of Lenders. The relationship among the Borrower and the
Lenders, the Issuing Lender, and the Administrative Agent shall be solely that
of borrower and lender. Neither the Administrative Agent nor any Lender nor the
Issuing Lender shall have any fiduciary responsibilities to the Borrower.
Neither the Administrative Agent, nor any Lender, nor the Issuing Lender
undertakes any responsibility to the Borrower to review or inform the Borrower
of any matter in connection with any phase of the Borrower's business or
operations.
9.11 CHOICE OF LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF INDIANA, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
9.12 WAIVER OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH
LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY
OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
9.13 No Strict Construction. The parties hereto have participated jointly
in the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement.
9.14 Supplemental Disclosure. At any time at the request of the
Administrative Agent and at such additional times as the Borrower determines,
the Borrower shall supplement each schedule or representation herein or in the
other Loan Documents with respect to any matter hereafter arising which, if
existing or occurring at the date of this Agreement, would have been required to
be set forth or described in such schedule or as an exception to such
representation or which is necessary to correct any information in such schedule
or representation which has been rendered inaccurate thereby. Any such
supplement to such schedule or representation which discloses the existence or
occurrence of events, facts or circumstances which are prohibited by the terms
of this Agreement or any other Loan Documents shall not be deemed an amendment
thereof unless expressly consented to in writing by the Administrative Agent and
the Required Lenders or each Lender, as may be applicable, and no such
supplement to such schedule or representation, except as the same may be
consented to in a writing which expressly includes a waiver, shall be or be
deemed a waiver by the Administrative Agent or any Lender of any Default
disclosed therein.
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9.15 Amendment and Restatement of Original Credit Agreement. The Borrower,
the Lenders, the Administrative Agent and the Issuing Lender agree that, upon
(i) the execution and delivery of this Agreement by the Borrower, the
Administrative Agent, the Issuing Lender and the Lenders and (ii) satisfaction
(or waiver by the Lenders in their sole discretion) of the conditions precedent
set forth in Section 4.1 hereof, the terms and provisions of the Original Credit
Agreement shall be and hereby are amended, superseded and restated in their
entirety by the terms and provisions of this Agreement. This Agreement is not
intended to and shall not constitute a novation of the Original Credit Agreement
or the indebtedness created thereunder, including, without limitation, all
"Obligations" under and as defined therein. All outstanding "Loans" and "Letters
of Credit" (under and as defined in the Original Credit Agreement) shall
continue as Loans and Letters of Credit under (and shall be governed by the
terms of) this Agreement. The "Commitments" of each Lender under the Original
Credit Agreement shall, on the Effective Date, automatically be deemed amended
and converted into, and in the amount of, the Revolving Loan Commitments
hereunder.
9.16 Release. The Borrower hereby acknowledges and confirms that (i) it
does not have any grounds, and hereby agrees not to challenge (or to allege or
to pursue any matter, cause or claim arising under or with respect to), in any
case based upon acts or omissions of the Administrative Agent or any of the
Lenders occurring prior to the date hereof or facts otherwise known to it as of
the date hereof, the effectiveness, genuineness, validity, collectibility or
enforceability of this Agreement or any of the other Loan Documents, the
Obligations, the Liens securing such Obligations, or any of the terms or
conditions of any Loan Document (it being understood that such acknowledgment
and confirmation do not preclude the Borrower from challenging the
Administrative Agent's or any Lender's interpretation of any term or provision
of this Agreement or other Loan Document) and (ii) it does not possess (and
hereby forever waives, remises, releases, discharges and holds harmless the
Lenders, the Administrative Agent and their respective affiliates, stockholders,
directors, officers, employees, attorneys, agents and representatives and each
of their respective heirs, executors, administrators, successors and assigns
(collectively, the "Released Parties") from and against, and agrees not to
allege or pursue) any action, cause of action, suit, debt, claim, counterclaim,
cross-claim, demand, defense, offset, opposition, demand and other right of
action whatsoever, whether in law, equity or otherwise (which it, all those
claiming by, through or under it, or its successors or assigns, have or may
have) against the Released Parties, or any of them, by reason of, any matter,
cause or thing whatsoever, with respect to events or omissions occurring or
arising on or prior to the date hereof and relating to this Agreement or any of
the other Loan Documents (including, without limitation, with respect to the
payment, performance, validity or enforceability of the Obligations, the Liens
securing the Obligations or any or all of the terms or conditions of any Loan
Document) or any transaction relating thereto; provided, however, that the
Borrower does not release or hold harmless any Released Party for actions or
omissions by any such Released Party constituting, or losses or expenses
directly resulting from, the gross negligence or willful misconduct of such
Released Party as determined by a final judgment of a court of competent
jurisdiction.
ARTICLE X: THE ADMINISTRATIVE AGENT
10.1 Appointment; Nature of Relationship. Bank One is appointed by the
Lenders (each reference in this Article X to a Lender being in its capacity
either as a Lender or the Issuing
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Lender, or any or all of the foregoing) as the Administrative Agent hereunder
and under each other Loan Document to which the Administrative Agent is a party,
and each of the Lenders irrevocably authorizes the Administrative Agent to act
as the contractual representative of such Lender with the rights and duties
expressly set forth herein and in such other Loan Documents. The Administrative
Agent agrees to act as such contractual representative upon the express
conditions contained in this Article X. Notwithstanding the use of the defined
term "Administrative Agent", it is expressly understood and agreed that the
Administrative Agent shall not have any fiduciary responsibilities to any Lender
by reason of this Agreement and that the Administrative Agent is merely acting
as the representative of the Lenders with only those duties as are expressly set
forth in this Agreement and the other Loan Documents. In its capacity as the
Lenders' contractual representative the Administrative Agent (i) does not assume
any fiduciary duties to any Person and (ii) is acting as an independent
contractor, the rights and duties of which are limited to those expressly set
forth in this Agreement and the other Loan Documents. Each of the Lenders agrees
to assert no claim against the Administrative Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, all of which claims each
Lender waives.
10.2 Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders, or any obligation to the
Lenders to take any action hereunder or under any of the other Loan Documents
except any action specifically provided by the Loan Documents required to be
taken by the Administrative Agent.
10.3 General Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to any of the Borrower,
the Lenders or any Lender for any action taken or omitted to be taken by it or
them hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is found in a final
non-appealable judgment by a court of competent jurisdiction to have arisen
solely from (i) the Gross Negligence or willful misconduct of such Person or
(ii) breach of contract by such Person with respect to the Loan Documents.
10.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(i) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document; (iii) the
satisfaction of any condition specified in Article IV; (iv) the existence or
possible existence of any Default or (v) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith. Neither the Administrative Agent nor the Administrative
Agent shall be responsible to any Lender for any recitals, statements,
representations or warranties herein or in any of the other Loan Documents, for
the execution, effectiveness, genuineness, validity, legality, enforceability,
collectibility, or sufficiency of this Agreement or any of the other Loan
Documents or the transactions contemplated thereby, or for the financial
condition of any guarantor of any or all of the Obligations, the Borrower or any
of its Subsidiaries.
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10.5 Action on Instructions of Lenders. The Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, hereunder
and under any other Loan Document in accordance with written instructions signed
by the Required Lenders (except with respect to actions that require the consent
of all of the Lenders as provided in Section 8.3), and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders and on all holders of Notes. The Administrative Agent shall be fully
justified in failing or refusing to take any action hereunder and under any
other Loan Document unless it shall first be indemnified to its satisfaction by
the Lenders pro rata against any and all liability, cost and expense that it may
incur by reason of taking or continuing to take any such action.
10.6 Employment of Agents and Counsel. The Administrative Agent may execute
any of their respective duties hereunder and under any other Loan Document by or
through employees, agents, and attorneys-in-fact, and shall not be answerable to
the Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Administrative Agent shall be entitled
to advice of counsel concerning the contractual arrangement among the
Administrative Agent and the Lenders and all matters pertaining to such Agent's
duties hereunder and under any other Loan Document.
10.7 Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
10.8 The Administrative Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Pro Rata Shares (i) for any amounts not
reimbursed by the Borrower for which the Administrative Agent is entitled to
reimbursement or indemnification by the Borrower under the Loan Documents, (ii)
for any other expenses incurred by the Administrative Agent on behalf of the
Lenders in connection with the preparation, execution, delivery, administration
and enforcement of the Loan Documents, including as a result of a dispute among
the Lenders or between any Lender and the Administrative Agent, and (iii) for
any liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever which
may be imposed on, incurred by or asserted against the Administrative Agent in
any way relating to or arising out of the Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby, or
the enforcement of any of the terms thereof or of any such other documents,
including as a result of a dispute among the Lenders or between any Lender and
the Administrative Agent, provided that no Lender shall be liable for any of the
foregoing to the extent any of the foregoing is found in a final non-appealable
judgment by a court of competent jurisdiction to have arisen solely from the
Gross Negligence or willful misconduct of the Administrative Agent.
10.9 Rights as a Lender. With respect to its Revolving Loan Commitment,
Loans made by it and the Notes issued to it and Letters of Credit issued by it
as the Issuing Lender, the Administrative Agent shall have the same rights and
powers hereunder and under any other Loan Document as any Lender and may
exercise the same as through it were not the Administrative
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Agent, as applicable, and the term "Lender" or "Lenders" or "Issuing Lender", as
applicable, shall, unless the context otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent may
accept deposits from, lend money to and generally engage in any kind of trust,
debt, equity or other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Borrower or any of its
Subsidiaries in which such Person is not prohibited hereby from engaging with
any other Person.
10.10 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.11 Successor Administrative Agent. The Administrative Agent may resign
at any time by giving written notice thereof to the Lenders and the Borrower.
Upon any such resignation, the Required Lenders shall have the right to appoint,
on behalf of the Lenders, a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
shall have accepted such appointment within thirty days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may appoint, on behalf of the Lenders, a successor
Administrative Agent. Notwithstanding anything herein to the contrary, so long
as no Default has occurred and is continuing, each such successor Administrative
Agent shall be subject to approval by the Borrower, which approval shall not be
unreasonably withheld. Such successor Administrative Agent shall be a commercial
bank having capital and retained earnings of at least $500,000,000. Upon the
acceptance of any appointment as the Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder and under
the other Loan Documents. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article X shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Administrative Agent hereunder and
under the other Loan Documents.
ARTICLE XI: SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any rights of the
Lenders or the Issuing Lender under applicable law, if any Default occurs and is
continuing, any indebtedness from any Lender or the Issuing Lender to the
Borrower (including all account balances, whether provisional or final and
whether or not collected or available) may be offset and applied in accordance
with the Intercreditor Agreement.
11.2 Intentionally Omitted.
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11.3 Relations Among Lenders.
(a) Except with respect to the exercise of set-off rights of any
Lender in accordance with Section 11.1, the proceeds of which are applied
in accordance with this Agreement, and except as set forth in Section
11.3(b) below, each Lender agrees that it will not take any action, nor
institute any actions or proceedings, against the Borrower or any other
obligor hereunder or with respect to any Collateral Document or Loan
Document, without the prior written consent of the Required Lenders or, as
may be provided in this Agreement or the other Loan Documents, at the
direction of the Administrative Agent.
(b) The Lenders are not partners or co-venturers, and no Lender shall
be liable for the acts or omissions of, or (except as otherwise set forth
herein in case of the Administrative Agent) authorized to act for, any
other Lender. Notwithstanding the foregoing, and subject to Section 11.2,
any Lender shall have the right to enforce on an unsecured basis the
payment of the principal of and interest on any Loan made by it after the
date such principal or interest has become due and payable pursuant to the
terms of this Agreement.
ARTICLE XII: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns. The terms and provisions of the Loan Documents
shall be binding upon and inure to the benefit of the Borrower and the Lenders
and their respective successors and assigns, except that (i) the Borrower shall
not have the right to assign its rights or obligations under the Loan Documents
and (ii) any assignment by any Lender must be made in compliance with Section
12.3 hereof. Notwithstanding clause (ii) of this Section 12.1, any Lender may at
any time, without the consent of the Borrower or the Administrative Agent,
assign all or any portion of its rights under this Agreement and its Notes to a
Federal Reserve Bank; provided, however, that no such assignment shall release
the transferor Lender from its obligations hereunder. The Administrative Agent
may treat the payee of any Note as the owner thereof for all purposes hereof
unless and until such payee complies with Section 12.3 hereof in the case of an
assignment thereof or, in the case of any other transfer, a written notice of
the transfer is filed with the Administrative Agent. Any assignee or transferee
of a Note agrees by acceptance thereof to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the holder of any Note, shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
12.2 Participations.
(A) Permitted Participants; Effect. Subject to the terms set forth in this
Section 12.2, any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("PARTICIPANTS") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any Revolving Loan Commitment of such
Lender, any L/C Interest of such Lender or any other interest of such Lender
under the Loan Documents on a pro rata basis; provided that the amount of such
participation shall not be for
88
less than $5,000,000. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the holder of any such Note for all purposes under the Loan Documents, all
amounts payable by the Borrower under this Agreement shall be determined as if
such Lender had not sold such participating interests, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under the Loan Documents
except that, for purposes of Article III hereof, the Participants shall be
entitled to the same rights as if they were Lenders provided however that no
Participant shall be entitled to receive any greater payment under Article III
than the Lender would have been entitled to receive with respect to the rights
participated.
(B) Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents, other than any amendment, modification or
waiver with respect to any Loan or Revolving Loan Commitment in which such
Participant has an interest which forgives principal, interest or fees or
reduces the interest rate or fees payable pursuant to the terms of this
Agreement with respect to any such Loan or Revolving Loan Commitment, or
postpones any date fixed for any regularly-scheduled payment of principal of, or
interest or fees on, any such Loan or Revolving Loan Commitment or releases all
or substantially all of the Collateral, if any, securing any such Loan.
(C) Benefit of Setoff. The Borrower agrees that each Participant shall be
deemed to have the right of setoff provided in Section 11.1 hereof in respect to
its participating interest in amounts owing under the Loan Documents to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under the Loan Documents, provided that each Lender shall retain the
right of setoff provided in Section 11.1 hereof with respect to the amount of
participating interests sold to each Participant except to the extent such
Participant exercises its right of set off. The Lenders agree to share with each
Participant, and each Participant, by exercising the right of setoff provided in
Section 11.1 hereof, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with Section 11.2 as if each Participant were a Lender.
12.3 Assignments.
(A) Permitted Assignments. Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time assign to one or
more banks or other entities ("PURCHASERS") all or a portion of its rights and
obligations under this Agreement (including, without limitation, its Revolving
Loan Commitment (if any), all Loans owing to it, all of its interests as Issuing
Lender with respect to Letters of Credit, all of its participation interests in
existing Letters of Credit, and its obligation to participate in additional
Letters of Credit hereunder) in accordance with the provisions of this Section
12.3. Each assignment shall be of a constant, and not a varying, ratable
percentage of all of the rights and obligations of any assigning Lender under
this Agreement. Such assignment shall be substantially in the form of Exhibit C
hereto and shall not be permitted hereunder unless such assignment is either for
all of such Lender's rights and obligations under the Loan Documents or involves
loans and Revolving
89
Loan Commitments in an aggregate amount of at least $5,000,000. Notice to the
Administrative Agent and consent of the Administrative Agent and, so long as no
Default shall have occurred and be continuing, notice to and consent of the
Borrower (which consents will not be unreasonably withheld) shall be required
prior to an assignment becoming effective with respect to a Purchaser which is
not a Lender or an Affiliate thereof.
(B) Effect; Effective Date. Upon (i) delivery to the Administrative Agent
of a notice of assignment, substantially in the form attached as Appendix I to
Exhibit C hereto (a "NOTICE OF ASSIGNMENT"), together with any consent required
by Section 12.3(A) hereof, and (ii) except in the case of an assignment from a
Lender to an Affiliate thereof or to a fund managed by the same investment
manager, payment of a $3,500 fee to the Administrative Agent for processing such
assignment, such assignment shall become effective on the effective date
specified in such Notice of Assignment. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Revolving Loan Commitment, Loans and L/C
Obligations under the applicable assignment agreement are "plan assets" as
defined under ERISA and that the rights and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser, if not already a Lender,
shall for all purposes be a Lender party to this Agreement and any other Loan
Documents executed by the Lenders and shall have all the rights and obligations
of a Lender under the Loan Documents, to the same extent as if it were an
original party hereto, and no consent or action by any of the Borrower or the
Lenders and no further consent or action by the Administrative Agent shall be
required to release the transferor Lender with respect to the percentage of the
Aggregate Revolving Loan Commitment, Loans and Letter of Credit participations
assigned to such Purchaser. Upon the consummation of any assignment to a
Purchaser pursuant to this Section 12.3(B), the transferor Lender, the
Administrative Agent and the Borrower shall make appropriate arrangements so
that replacement Notes are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser, in each case in
principal amounts reflecting their Revolving Loan Commitment, as adjusted
pursuant to such assignment.
(C) The Register. The Administrative Agent shall maintain at its address
referred to in Section 13.1 a copy of each assignment delivered to and accepted
by it pursuant to this Section 12.3 and a register (the "REGISTER") for the
recordation of the names and addresses of the Lenders and the Revolving Loan
Commitment of and principal amount of the Loans owing to, each Lender from time
to time and whether such Lender is an original Lender or the assignee of another
Lender pursuant to an assignment under this Section 12.3. The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower and each of its Subsidiaries, the Administrative Agent
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
12.4 Confidentiality. Subject to Section 12.5, the Administrative Agent and
the Lenders shall hold all nonpublic information obtained pursuant to the
requirements of this Agreement and identified as such by the Borrower in
accordance with such Person's customary procedures for handling confidential
information of this nature and in accordance with safe and sound banking
practices and in any event may make disclosure reasonably required by a
prospective Transferee
90
(as defined in Section 12.5 below) in connection with the contemplated
participation or assignment or as required or requested by any Governmental
Authority or representative thereof or pursuant to legal process and shall
require any such Transferee or prospective Transferee to agree (and require any
of its Transferees to agree) to comply with this Section 12.4. In no event shall
the Administrative Agent or any Lender be obligated or required to return any
materials furnished by the Borrower; provided, however, each prospective
Transferee shall be required to agree that if it does not become a participant
or assignee it shall return all materials furnished to it by or on behalf of the
Borrower in connection with this Agreement.
12.5 Dissemination of Information. The Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "TRANSFEREE") and any
prospective Transferee any and all information in such Lender's possession
concerning the Borrower and its Subsidiaries and the Collateral; provided that
prior to any such disclosure, such prospective Transferee shall agree to
preserve in accordance with Section 12.4 the confidentiality of any confidential
information described therein.
ARTICLE XIII: NOTICES
13.1 Giving Notice. Except as otherwise permitted by Article II with
respect to Borrowing Notices, all notices and other communications provided to
any party hereto under this Agreement or any other Loan Documents shall be in
writing or by telex or by facsimile and addressed or delivered to such party at
its address set forth below its signature hereto or at such other address as may
be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid, shall be deemed given when
received; any notice, if transmitted by telex or facsimile, shall be deemed
given when transmitted (answerback confirmed in the case of telexes); or, if by
courier, one (1) Business Day after deposit with a reputable overnight carrier
service; with all charges paid.
13.2 Change of Address. Any of the Borrower, the Administrative Agent and
any Lender may each change the address for service of notice upon it by a notice
in writing to the other parties hereto.
ARTICLE XIV: COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Borrower, the Administrative Agent
and the Lenders and each party hereto has notified the Administrative Agent by
telex, facsimile or telephone, that it has taken such action.
[Remainder of This Page Intentionally Blank]
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent
have executed this Agreement as of the date first above written.
WABASH NATIONAL CORPORATION
By:
------------------------------------
Name: Christopher A. Black
Title: Vice President and Treasurer
Address:
1000 Sagamore Parkway South
Lafayette, IN 47905
Attention: Christopher A. Black,
Vice President and Treasurer
Telephone No.: (765) 772-2206
Facsimile No.: (765) 772-2600
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT
BANK ONE, INDIANA, N.A.
as the Administrative Agent, the Issuing
Lender, and as a Lender
By:
------------------------------------
Name: _____________________________
Title: _____________________________
Address:
One Bank One Plaza
Chicago, IL 60670
Attention: Patricia Carpen
Telephone No.: (312) 732-1418
Facsimile No.: (312) 732-1775
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT
THE NORTHERN TRUST COMPANY
By:
------------------------------------
Name: _____________________________
Title: _____________________________
Address:
50 South LaSalle Street
Chicago, IL 60675
Attention: _____________________________
Telephone No.: (312) ___________________
Facsimile No.: (312) ___________________
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT
U.S. BANK NATIONAL ASSOCIATION
By:
------------------------------------
Name: _____________________________
Title: _____________________________
Address:
425 Walnut Street, 8th Floor
Cincinnati, OH 45202
Attention: _____________________________
Telephone No.: (513) ___________________
Facsimile No.: (513) ___________________
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRUST BANK
By:
------------------------------------
Name: _____________________________
Title: _____________________________
Address:
303 Peachtree Street, N.E.
4th Floor
Atlanta, GA 30080
Attention: Steve Newby
Telephone No.: (404) 658-4916
Facsimile No.: (404) 230-1800
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT
FIFTH THIRD BANK
By:
------------------------------------
Name: _____________________________
Title: _____________________________
Address:
P.O. Box 1663
Lafayette, IN 47902
Attention: _____________________________
Telephone No.: (765) ___________________
Facsimile No.: (765) ___________________
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT
KEYBANK NATIONAL ASSOCIATION
By:
------------------------------------
Name: _____________________________
Title: _____________________________
Address:
________________________________________
________________________________________
Attention: _____________________________
Telephone No.: (___) ___-_______________
Facsimile No.: (___) ___-_______________
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT
NATIONAL CITY BANK OF INDIANA
By:
------------------------------------
Name: _____________________________
Title: _____________________________
Address:
________________________________________
________________________________________
Attention: _____________________________
Telephone No.: (___) ___-_______________
Facsimile No.: (___) ___-_______________
SIGNATURE PAGE TO
AMENDED AND RESTATED CREDIT AGREEMENT