EXHIBIT 10.45
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WABASH NATIONAL CORPORATION
_________________
SECOND AMENDMENT
Dated as of April 11, 2003
To
AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
Dated as of April 12, 2002
_________________
Re: $50,000,000 Adjusting Rate Senior Secured Notes,
Series A, due March 30, 2004
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SECOND AMENDMENT TO AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
This Second Amendment dated as of April 11, 2003 ("Second
Amendment") to the Amended and Restated Note Purchase Agreement, dated as of
April 12, 2002 and as amended on December 13, 2002, is among Wabash National
Corporation, a Delaware corporation ("Company"), and the several Purchasers
party to the Note Agreement (collectively, the "Noteholders").
RECITALS:
A. The Company and the Noteholders have heretofore entered
into that certain Amended and Restated Note Purchase Agreement dated as of April
12, 2002 (the "Note Agreement"). The Company has heretofore issued its
$50,000,000 9.66% Senior Secured Notes, Series A, due March 30, 2004 bearing PPN
929566 F# 9 (the "Notes"), dated April 12, 2002, its Senior Secured PIK Notes,
due March 30, 2004 bearing PPN 929566 G* 2 (the "Deferral Fee Notes") and its
Senior Secured PIK Grid Notes, due March 30, 2004 bearing PPN 929566 H* 1 (the
"Make-Whole Notes"), pursuant to the Note Agreement. The Noteholders are the
holders of 100% of the principal amount of the Notes presently outstanding.
B. Apex Trailer Leasing & Rentals, L.P., a Delaware limited
partnership ("Apex"), Cloud Oak Flooring Company, Inc., an Arkansas corporation
("Cloud"), Continental Transit Corporation, an Indiana corporation
("Continental"), FTSI Distribution Company, L.P., a Delaware limited partnership
("FTSI"), National Trailer Funding, L.L.C., a Delaware limited liability company
("National"), Wabash National Trailer Centers, Inc. (formerly known as NOAMTC,
Inc.), a Delaware corporation ("Trailer"), Wabash Financing LLC, a Delaware
limited liability company ("Wabash Financing"), Wabash National, L.P., a
Delaware limited partnership ("Wabash National"), Wabash National Services,
L.P., a Delaware limited partnership ("Services"), Wabash Technology Corp., a
Delaware corporation ("Technology"), WNC Cloud Merger Sub, Inc., an Arkansas
corporation ("WNC Cloud"), WNC Receivables Management Corp., a Delaware
corporation ("Receivables"), and WTSI Technology Corp., a Delaware corporation
("WTSI") (Apex, Cloud, Continental, FTSI, National, Trailer, Wabash Financing,
Wabash National, Services, Technology, WNC Cloud, Receivables and WTSI are
hereinafter collectively referred to as the "Guarantors") have heretofore
entered into that certain Amended and Restated Subsidiary Guarantee Agreement,
dated as of April 12, 2002 (the "Subsidiary Guarantee Agreement") under and
pursuant to which each of the Guarantors guaranteed the payment of the Notes and
the performance by the Company of its obligations under the Note Agreement.
C. The Company and the Noteholders now desire to (i) modify
the Note Agreement by amending certain provisions of the Note Agreement and
provide that the amendment to the Note Agreement be effective as of the date
hereof (the "Second Amendment Effective Date") and (ii) amend and restate the
Notes, the Make-Whole Notes and the Deferral Fee Notes (provided that in lieu of
receiving an amended and restated Note, Make-Whole Note, or Defferal Fee Note,
each Noteholder may elect to receive an allonge to be attached to the Notes,
Make-Whole Notes and Deferral Fee Notes originally issued to such Noteholder
pursuant to the Note Agreement), such amended and restated notes together with
such allonges are collectively referred to herein as the "Amended and Restated
Notes").
D. The Guarantors in connection with this Second Amendment
desire to reaffirm their respective obligations under the Subsidiary Guarantee
Agreement.
E. All requirements of law have been fully complied with and
all other acts and things necessary to make this Second Amendment a valid, legal
and binding instrument according to its terms for the purposes herein expressed
have been done or performed.
NOW, THEREFORE, upon the full and complete satisfaction of the
conditions precedent to the effectiveness of this Second Amendment set forth in
Section 5 hereof, the Company and the Noteholders, for good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, do
hereby agree as follows:
SECTION 1 Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Note Agreement
shall have the meaning assigned to such term in the Note Agreement. Each
reference to "hereof," "hereunder," "herein" and "hereby" and each other
similar reference and each reference to "this Agreement" and each other
similar reference contained in the Note Agreement shall from and after the
date hereof refer to the Note Agreement as amended hereby.
SECTION 2 Amendments. The Company and the Noteholders agree that the
Note Agreement shall be amended as follows:
2.1 Section 8.1(b) of the Note Agreement shall be and hereby is amended
in its entirety to read as follows:
"(b) The Company will prepay the Notes as follows, provided
that no portion of such prepayments shall be applied to any Deferral
Fee Note or Make-Whole Note:
(i) on the last Business Day of each month commencing
with January 31, 2003 through April 30, 2003, the Company will
prepay the Notes in an aggregate principal amount equal to the
product of the Series A Note Principal Allocation times
$4,958,833, together with the Make-Whole Amount payable with
respect thereto;
(ii) on the last Business Day of each month
commencing with May 31, 2003 through December 31, 2003, the
Company will prepay the Notes in an aggregate principal amount
equal to the product of the Series A Note Principal Allocation
times $2,479,167, together with the Make-Whole Amount payable
with respect thereto;
(iii) on January 15, 2004, the Company shall prepay
the Notes in an aggregate principal amount equal to the Series
A Note Principal Allocation times the sum of $19,833,332 minus
the aggregate amount of principal prepayments in excess, if
any, of $19,833,332 made by the Company on the Amortization
Debt from the Second Amendment Effective Date to December, 31,
2003, together with the Make-Whole Amount payable with respect
thereto; provided, however,
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that the amount required to be prepaid on the Notes pursuant
to this clause (iii) shall in no event be less than zero; and
(iv) on the last Business Day of each month
commencing with January 31, 2004 through March 30, 2004, the
Company will prepay the Notes in an aggregate principal amount
equal to the product of the Series A Note Principal Allocation
times $4,958,333, together with the Make-Whole Amount payable
with respect thereto."
2.2 Section 8.1(c) of the Note Agreement shall be and hereby is amended
by deleting the reference to "June 30, 2002" therein and inserting "March 31,
2004" in lieu thereof.
2.3 Section 8 to the Note Agreement shall be and hereby is amended by
inserting the following new paragraph at the end of such paragraph 4:
"Section 8.7 Deferred Amounts. (a) In addition to the rate of
interest otherwise payable with respect to the Notes and all other
amounts payable hereunder or in connection herewith, the Company shall
pay, by no later than January 15, 2004, additional interest to the
Noteholders in accordance with their respective pro rata principal
amount in an amount equal to the aggregate of (i) each Series A
Deferred Principal Amount multiplied by a rate per annum equal to 2.00%
per annum from the date such Series A Deferred Principal Amount is
created and determined hereunder until the date such Series A Deferred
Principal Amount has been paid in full plus (ii) each Series A Deferred
Principal Amount multiplied by a rate per annum equal to 1.00% per
annum from the date such Series A Deferred Principal Amount has been
paid in full (through voluntary prepayments pursuant to Section 8.2
hereof) to (but not including) January 15, 2004 (the amounts referred
to in clauses (i) and (ii) hereof are collectively referred to as
"Deferred Principal Amount Fees"). Each such voluntary prepayment shall
be applied to the earliest occurring Series A Deferred Principal Amount
and, after the same has been paid in full, thereafter to each
immediately succeeding Series A Deferred Principal Amount until all
Series A Deferred Principal Amounts have been paid in full. On January
15, 2004, the Company shall pay all Series A Deferred Principal
Amounts. As used in this Section 8.7(a), "Deferred Principal Amount"
means, with respect to each monthly repayment of the Amortization Debt
occurring on or after the Second Amendment Effective Date but prior to
January 1, 2004, the excess, if any, of (x) $4,958,333 minus (y) the
actual amount of such repayment; it being understood and agreed that
each occurrence of such an excess will create a new and independent
Deferred Principal Amount. As used in this Section 8.7(a), "Series A
Deferred Principal Amount" means the Series A Note Principal Allocation
times each Deferred Principal Amount. The Company agrees that in
connection with any payment of fees payable to the Specified Holders
similar to the Deferred Principal Amount Fees, the Company shall pay to
the Noteholders a pro rata amount of such payment.
(b) The Company acknowledges that it is required to pay certain
amendment/closing fees (in addition to and not including the 0.25% fee
described in subsection (c) below and reimbursement for out of pocket
costs and expenses) to the Noteholders and the Specified Holders in
connection with, and as required by, the Second
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Amendment and the amendments to the Specified Agreements in form and
substance substantially similar to the Second Amendment (the "Second
Amendment Closing Fees"). In lieu of paying the entire balance of the
Second Amendment Closing Fees on the Second Amendment Effective Date,
the Company shall pay (i) on the Second Amendment Effective Date, at
least $2,000,000 of such Second Amendment Closing Fees and the portion
of the Second Amendment Closing Fees paid to the Noteholders on the
Second Amendment Effective Date shall not be less than the Series A
Deferred Fee Allocation multiplied by the actual amount of the Second
Amendment Closing Fees paid to the Noteholders and the Specified
Holders on the Second Amendment Effective Date and (ii) by no later
than January 15, 2004, (A) the then unpaid balance of the Second
Amendment Closing Fees multiplied by the Series A Deferred Fee
Allocation and (B) a deferral fee to the Noteholders in accordance with
their pro rata portion of the Deferred Fee Amount multiplied by the
Series A Deferred Fee Allocation at a rate per annum equal to the sum
of (x) the Series A Applicable Rate plus (y) (i) 2.00% from the Second
Amendment Effective Date until the date such Deferred Fee Amount has
been paid in full plus (z) 1.00% on the date immediately prior to the
day such Deferred Fee Amount balance has been paid in full and for the
period from the date such Deferred Fee Amount has been paid in full
until January 15, 2004. As used in this Section 8.7(b), "Deferred Fee
Amount" means, with respect to the Second Amendment Closing Fees, the
excess of (a) the actual amount of the Second Amendment Closing Fees
minus (b) the amount of the Second Amendment Closing Fees paid on the
Second Amendment Effective Date. The Company agrees that in connection
with any payment on any date of the Deferred Fee Amount or the deferral
fee referred to above (or a similar deferral fee to any Specified
Holder) to any Specified Holder, the Company, on the same date, shall
pay to each Noteholder pro rata in accordance with the unpaid principal
amount of Notes (other than the Deferral Fee Notes and the Make-Whole
Notes) held by such Noteholder an amount equal to the Series A Deferred
Fee Allocation times the amount of such payment.
(c) The Company shall pay, on January 15, 2004, a
restructuring fee pro rata to each Noteholder, in an amount equal to
0.25% of the then outstanding principal amount of the Notes (other than
the Make-Whole Notes and the Deferral Fee Notes) held by such
Noteholder (it being understood and agreed that such restructuring fee
shall be non-refundable and is deemed to be fully earned on the Second
Amendment Effective Date)."
2.4 Section 7.1(a) to the Note Agreement shall be and hereby is amended
by inserting new subsections (vii) and (viii) immediately following subsection
(vi) thereto which shall read as follows:
"(vii) Cash Sources. By no later than fifteen (15) days after
the end of each monthly accounting period of the Company, the following
(prepared in such format and detail as is required by the Required
Holder(s)): (a) a statement of projected cash sources and uses of the
Company and its Subsidiaries for the 13 calendar weeks following the
end of such monthly accounting period and a report (to the extent
requested by the Required Holder(s) from time to time) containing
management's discussion and analysis of such projections and (b) a
statement of cash sources and uses for the immediately preceding
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monthly accounting period of the Company and for such historical period
as is reasonably required by the Required Holder(s), in comparative
form against the figures and for the corresponding date and period in
the projected cash flow statements required under the foregoing
subsection (a); the foregoing statements required under subsections (a)
and (b) being duly certified by the chief financial officer or
treasurer of the Company.
(viii) Fleet Equivalent Increase. Concurrently with the
delivery of each monthly report and information under the Fleet
Participation Agreement (including without limitation under Section
6.1(e)(vii) thereof), the Company shall deliver to each Noteholder
copies of such reports and information and any other information
relevant to the calculation and determination of the Fleet Equivalent
Increase."
2.5 Section 9 of the Note Agreement shall be and hereby is amended by
inserting a new Section 9.18 immediately following Section 9.17 thereto which
shall read as follows:
"Section 9.18. Canadian Guaranty and Collateral. By no later
than May 31, 2003, the Company shall (a) cause its Canadian Subsidiary
to execute and deliver to each holder of a Note, a guarantee of the
Obligations pursuant to a guaranty agreement, or supplement thereto, in
form and substance satisfactory to the Required Holder(s) and their
counsel, (b) cause its Canadian Subsidiary to execute and deliver to
the Collateral Agent a general security agreement, or supplement
thereto, with a copy to each Noteholder, in form and substance
satisfactory to the Collateral Agent and its counsel, (c) execute and
deliver a Pledge Agreement, or supplement thereto, pledging 100% of the
capital stock of its Canadian Subsidiary and (d) deliver to the
Required Holder(s) corporate resolutions and other documentation
(including legal opinions, Personal Property Security Act financing
statements and such other instruments and documents as are requested
by, and in form and substance satisfactory to, the Required Holder(s)
and their counsel) related to the delivery of the foregoing agreements;
provided that the Company shall not be required to provide that portion
or amount of collateral described above and evidenced by any of the
foregoing instruments and documents to the extent but only to the
extent that delivery of such collateral would cause its Canadian
Subsidiary's accumulated and undistributed earnings and profits to be
deemed to be repatriated to the Company or a Domestic Subsidiary for
U.S. federal income tax purposes and the effect of such repatriation
would be to cause materially adverse tax consequences for the Company."
2.6 Section 10.3 of the Note Agreement shall be and hereby is amended
and restated as follows:
"(a) Intentionally Omitted.
(b) Minimum Consolidated Equity. The Company shall, as of the
last day of each of the fiscal quarters specified below, maintain
Consolidated Equity at an amount not less than the applicable "Minimum
Consolidated Equity" specified below:
Fiscal Quarter Ending
Minimum Consolidated
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Equity
March 31, 2003 $40,000,000
June 30, 2003 $35,000,000
September 30, 2003 $30,000,000
December 31, 2003 $25,000,000
(c) Maximum Leverage Valuation Ratio. The Company 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
March 31, 2003 0.95 to 1
June 30, 2003 0.95 to 1
September 30, 2003 0.95 to 1
December 31, 2003 0.95 to 1
(d) Minimum Consolidated EBITDA. The Company shall, as of the
last day of each of the fiscal quarters specified below, maintain
Consolidated EBITDA, at an amount not less than the applicable "Minimum
Cumulative Consolidated EBITDA" specified below for the period
commencing on January 1, 2003 and ending on such last day:
Minimum Cumulative Consolidated
Month Ending EBITDA
March 31, 2003 $0
June 30, 2003 $5,000,000
September 30, 2003 $15,000,000
December 31, 2003 $20,000,000
(e) Minimum Interest Coverage Cash Collateral. The Company
shall, by no later than December 31, 2002, enter into a Cash Collateral
Agreement and, by no later than one (1) Business Day prior to the first
day of each fiscal quarter of the Company ending on or after March 31,
2003, deposit funds ("Cash Collateral Funds") with the Collateral Agent
in an amount not less than the aggregate amount of interest required to
be paid, through the end of the immediately succeeding fiscal quarter,
under this Agreement and under the Specified Agreements; provided that
(i) in the case of interest required to be paid through the end of the
fiscal quarter ending on March 31, 2004, the Company may deposit Cash
Collateral Funds on or before (but not after) January 15, 2004 and (ii)
it being understood and agreed that if, at any time subsequent to the
date Cash Collateral Funds are deposited, the aggregate amount of
interest required to be so paid increases, the Company shall promptly,
and in any event within three (3) Business Days after demand by the
holders of the Senior Notes or the Administrative Agent,
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deposit additional funds with the Collateral Agent in an aggregate
amount not less than the amount of such increase)."
2.7 Section 10.3(f) of the Note Agreement shall be and hereby is
amended by deleting the reference to "$6,000,000" contained therein and
inserting "$4,000,000" in lieu thereof.
2.8 Section 11(b)(iv) of the Note Agreement shall be and hereby is
amended by inserting "or Section 9.18" immediately after the reference to
"Section 9.17" appearing therein.
2.9 Section 11 to the Note Agreement shall be and hereby is amended by
inserting the following new subsections immediately following subsection (r)
contained therein:
"(s). Commitment Letter. The Company shall fail to deliver to
the holders of Notes, by no later than January 31, 2004, one or more
binding commitment letters (in form and substance satisfactory to the
Required Secured Parties as defined in the Intercreditor Agreement)
from a bank, institutional lender or other qualified lending source to
pay in full, on or before March 30, 2004, the Secured Obligations as
defined in the Intercreditor Agreement.
(t) Fleet Cross-Default. A default or breach under the Fleet
Participation Agreement shall occur, regardless of whether such default
is waived or whether any right with respect to such default or breach
is exercised (including, without limitation, any default or breach
arising out of a failure by the Company to deliver a business plan as
required by Section 6.1(o) thereof)."
2.10 Schedule B of the Note Agreement shall be and hereby is amended by
inserting the following new defined terms and in the correct alphabetical order
to such schedule:
"Amortization Debt" means, at any time the same is to be
determined, the sum of (i) the outstanding principal amount of the
Senior Secured Notes (other than the Deferral Fee Notes and the
Make-Whole Notes) (as each such term is defined in the Intercreditor
Agreement), as of such time plus (ii) the sum of (1) 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 (as each such term
is defined in the Credit Agreement as in effect at the date of the
Closing).
"Applicable Margin" means, for each month the same is determined, the
sum of (i) 0.50% for every 10% of negative variance from the Targeted
Consolidated EBITDA Amount for such month, (ii) 0.50% for every
quarterly occurrence of a Leverage Valuation Ratio above 0.85 to 1 as
of the end of the Company's most recently ended fiscal quarter and to
be paid in the quarter following such occurrence (it being understood
and agreed that, once in effect, such Leverage Valuation Ratio-based
increase (a "Leverage Increase") will remain in effect for each month
prior to the Company's achievement of a Leverage Valuation Ratio of
0.85 to 1 or less but shall cease to apply (subject to subsequent
quarterly occurrences of a Leverage Valuation Ratio above 0.85 to 1)
during and after such month when the Company's quarterly-based Leverage
Valuation
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Ratio is equal to or less than 0.85 to 1), (iii) 0.50% for every
monthly occurrence of a negative monthly Unadjusted Consolidated EBITDA
and (iv) 0.20% for every month during which the "Additional Fee" (as
identified and defined in Section 10.1(d) of the Fleet Participation
Agreement) is payable under the Fleet Participation Agreement (a "Fleet
Equivalent Increase"). Each calculation of the Applicable Margin (1)
will be determined as of the end of each calendar month (or quarter in
the case of the applicability of a Leverage Increase) and shall be in
effect for the next succeeding calendar month (or quarter in the case
of a Leverage Increase), (2) shall be determined without giving effect
to, and shall not be additive of, the Applicable Margin determined in
any previous month and (3) shall be subject to the limitation that the
amount calculated by adding the sum of the increases specified in the
foregoing subsections (i), (ii) and (iii) shall not exceed 5.00% for
any month.
"Canadian Subsidiary" means any subsidiary of the Company
organized under the laws of Canada or any province thereof.
"Deferred Fee Amount" is defined in Section 8.7(b).
"Deferred Principal Amount" is defined in Section 8.7(a).
"Eligible Asset Disposition Charges" means charges, calculated
in accordance with GAAP, incurred by the Company in its fiscal year
ending on December 31, 2003 but only to the extent (i) such charges
relate solely and directly to the sales of assets and properties
permitted under Section 10.2(b) (including, without limitation, charges
composed of brokerage and investment banking fees, rental and used
trailer disposition fees and charges and other disposition transaction
costs) and (ii) the proceeds of such sales are used to prepay
Indebtedness of the Company and its Subsidiaries to the extent
permitted hereunder.
"Eligible Asset Impairment Charges" means up to $35,000,000 in
the aggregate attributable to, without duplication, any charges
incurred by the Company in its fiscal year ending on December 31, 2003
but only to the extent such charges relate solely and directly to the
impairment of long-lived assets, goodwill and other intangible assets,
all in accordance with GAAP.
"Eligible Miscellaneous Non-Cash Charges" means non-cash
charges (including, without limitation, to non-cash losses on finance
contracts, severance and other loss contingencies but excluding
Eligible Asst Impairment Charges and Eligible Restructuring Charges),
calculated in accordance with GAAP and, to the extent deducted in
computing Consolidated Operating Income, incurred by the Company in its
fiscal year ending on December 31, 2003 but only to the extent the
aggregate amount of such non-cash charges do not exceed $10,000,000.
"Eligible Restructuring Charges" means any charges incurred by
the Company in its fiscal year ending on December 31, 2003 but only to
the extent such charges (i) are incurred in accordance with GAAP and
(ii) relate solely and directly to the restructuring, waiving or
amending of the instruments and documents evidencing any of the Secured
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Obligations and other lines of credit, leases or other extensions of
credit, including any amounts paid to any lenders, advisor fees and
other related costs.
"Fleet Equivalent Increase" is defined in the definition of
"Applicable Margin" contained in Schedule B hereof.
"Fleet Participation Agreement" means that certain Amended and
Restated Participation Agreement dated as of March 30, 2001 as
currently in effect among Apex Trailer Leasing & Rentals, L.P., the
Company, certain financial institutions from time to time party
thereto, U.S. Bank National Association, as trustee and Fleet Capital
Corporation individually and as owner participant, collateral agent and
administrative agent, as such agreement may be amended, restated,
supplemented or otherwise modified from time to time.
"Second Amendment" means that certain Second Amendment to the
Amended and Restated Note Purchase Agreement, dated as of April 12,
2002 and as amended on December 13, 2002, dated as of April 11, 2003
among the Company, and the Noteholders.
"Second Amendment Closing Fees" is defined in Section 8.7(b).
"Second Amendment Effective Date" means April 11, 2003.
"Series I Applicable Rate" means, at any time, the sum of (i)
a rate per annum equal to 10.16% plus (ii) the Applicable Margin at
such time.
"Series I Deferred Fee Allocation" means at any time, the
percentage determined by dividing (a) the aggregate amount of the
amendment fees in favor of the Noteholders as required by, and in
connection with, the Second Amendment by (b) the sum of (i) the
aggregate amount of the amendment fees in favor of the holders of the
Senior Secured Notes (other than the Deferral Fee Notes and the
Make-Whole Notes) (as each such term is defined in the Intercreditor
Agreement) as required by, and in connection with, the Second Amendment
and the amendments (comparable to the Second Amendment) to the Note
Agreements (as such term is defined in the Intercreditor Agreement),
(ii) the aggregate amount of the amendment fees in favor of the
Administrative Agent and the Lenders as required by, and in connection
with, the Second Amendment, (iii) the aggregate amount of the amendment
fees in favor of General Electric Capital Corporation as required by,
and in connection with, the amendments (comparable to the Second
Amendment) to the Receivables Purchase Agreement and (iv) the aggregate
amount of amendment fees in favor of Fleet Capital Corporation as
required by, and in connection with, the Amendment (comparable to the
Second Amendment) to the lease agreements evidencing the Fleet Lease
Transaction.
"Specified Agreements" means the Credit Agreement, the
Receivables Purchase Documents, the Series I Note Purchase Agreement,
the Series C-H Note Purchase Agreement and the lease agreements
evidencing the Fleet Lease Transaction.
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"Specified Holders" means the holders of the Obligations,
under and as defined in the Credit Agreement, the financial
institutions party to Receivables Purchase Documents, the holders of
the Series I Notes, the holders of the Series C-H Notes and the
financial institutions party to the lease agreements evidencing the
Fleet Lease Transaction.
"Targeted Consolidated EBITDA Amount" means, for each relevant
month, the cumulative Consolidated EBITDA amount (measured from and
after January 1, 2003) furnished on March 6, 2003 to the Noteholders as
part of the Company's 2003 budget and as set forth on Schedule B
attached hereto minus that portion of such cumulative Consolidated
EBITDA amount which is attributable to the sale, from and after January
1, 2003, of any assets or any Subsidiary to the extent permitted herein
or otherwise approved by the Required Holder(s).
"Unadjusted Consolidated EBITDA" means, for any period, on a
consolidated basis for the Company and its consolidated Subsidiaries,
the sum of the amounts for such period, without duplication, of (i)
Consolidated Operating Income, plus (ii) charges against income for
foreign taxes and U.S. income taxes to the extent deducted in computing
Consolidated Operating Income, plus (iii) Interest Expense to the
extent deducted in computing Consolidated Operating Income, plus (iv)
depreciation expense to the extent deducted in computing Consolidated
Operating Income, plus (v) amortization expense, including, without
limitation, amortization of goodwill and other intangible assets to the
extent deducted in computing Consolidated Operating Income, plus (vi)
Eligible Asset Disposition Charges to the extent deducted in computing
Consolidated Operating Income, minus (a) the total interest income of
the Company and its Subsidiaries to the extent included in computing
Consolidated Operating Income minus (b) the total tax benefit reported
by the Company and its Subsidiaries to the extent included in computing
Consolidated Operating Income.
2.11 Schedule B to the Note Agreement is further amended by amending
the definitions of "Consolidated EBITDA," "Consolidated Equity" and "Default
Rate" in their entirety to read as follows:
"Consolidated EBITDA" means, for any period, on a consolidated
basis for the Company and its consolidated Subsidiaries, the sum of the
amounts for such period, without duplication, of (i) Consolidated
Operating Income, plus (ii) charges against income for foreign taxes
and U.S. income taxes to the extent deducted in computing Consolidated
Operating Income, plus (iii) Interest Expense to the extent deducted in
computing Consolidated Operating Income, plus (iv) depreciation expense
to the extent deducted in computing Consolidated Operating Income, plus
(v) amortization expense, including, without limitation, amortization
of goodwill and other intangible assets to the extent deducted in
computing Consolidated Operating Income, plus (vi) Eligible Asset
Disposition Charges to the extent deducted in computing Consolidated
Operating Income, plus (vii) Eligible Asset Impairment Charges to the
extent deducted in computing Consolidated Operating Income, plus (viii)
Eligible Miscellaneous Non-Cash Charges to the extent deducted in
computing Consolidated Operating Income, plus (ix) Eligible
Restructuring Charges to the extent deducted in computing Consolidated
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Operating Income, minus (a) the total interest income of the Company
and its Subsidiaries to the extent included in computing Consolidated
Operating Income minus (b) the total tax benefit reported by the
Company and its Subsidiaries to the extent included in computing
Consolidated Operating Income.
"Consolidated Equity" means as of the date of any
determination thereof for any relevant period, the total stockholders'
equity of the Company and its Subsidiaries on a consolidated basis, as
determined in accordance with GAAP, plus the sum of the amounts for
such period, without duplication, of (i) foreign currency translation
and transaction gains and losses, plus (ii) all charges against income
for foreign taxes and U.S. income taxes, plus (iii) Eligible Asset
Disposition Charges, plus (iv) Eligible Asset Impairment Charges, plus
(v) Eligible Non-Cash Miscellaneous Charges, plus (vi) Eligible
Restructuring Charges.
"Default Rate" means the greater of (i) 2.00% over the then
applicable Series I Applicable Rate or (ii) 2.00% over the rate of
interest publicly announced by Morgan Guaranty Trust Company of New
York from time to time in New York, New York as its "base" or "prime"
rate.
2.12 The Note Purchase Agreement shall be and hereby is amended by
inserting a new Schedule C in the form of Schedule C attached to this Second
Amendment.
2.13 Exhibit 1 to the Note Purchase Agreement is amended in its
entirety by substituting therefor Amended Exhibit 1 attached to this Amendment.
2.14 Exhibit 2 to the Note Purchase Agreement is amended in its
entirety by substituting therefor Amended Exhibit 2 attached to this Amendment.
2.15 Exhibit 7.1(b) to the Note Purchase Agreement is amended in its
entirety by substituting therefor Amended Exhibit 7.1(b) attached to this
Amendment.
SECTION 3 Representations and Warranties of the Company. To induce the
Noteholders to execute and deliver this Second Amendment (which
representations shall survive the execution and delivery of this Second
Amendment), each of the Company and the Guarantors represent and warrant to
the Noteholders that:
(a) since December 31, 2002, there has been no change
in the condition, financial or otherwise, of the Company
and its Subsidiaries as shown on the consolidated balance
sheet as of such date except changes in the ordinary course
of business, none of which individually or in the aggregate
has had, or reasonably could be expected to have, a
Material Adverse Effect;
(b) this Second Amendment has been duly authorized,
executed and delivered by it and this Second Amendment
constitutes the legal, valid and binding obligation,
contract and agreement of the Company and Guarantors
enforceable against each of them in accordance with its
terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization,
11
moratorium or similar laws relating to or limiting
creditors' rights generally and general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or in law);
(c) the Note Agreement, as amended by this Second
Amendment, constitutes the legal, valid and binding
obligation, contract and agreement of the Company
enforceable against it in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or
limiting creditors' rights generally and general principles
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or in law);
(d) the Amended and Restated Notes have been duly
authorized by all necessary corporate action on the part of
the Company and the Amended and Restated Notes being
delivered on the Effective Date have been duly executed and
delivered by the Company and constitute the legal, valid
and binding obligations of the Company enforceable against
the Company in accordance with their terms except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or
limiting creditors' rights generally and general principles
of equity (regardless of whether such enforceability is
considered in a proceeding in equity or in law);
(e) the execution, delivery and performance by the
Company of this Second Amendment and the Amended and
Restated Notes and by the Guarantors of this Second
Amendment (i) have been duly authorized by all requisite
corporate action and, if required, shareholder action, (ii)
do not require the consent or approval of any governmental
or regulatory body or agency, and (iii) do not and will not
(A) violate (1) any provision of law, statute, rule or
regulation or its certificate of incorporation or bylaws,
(2) any order of any court or any rule, regulation or order
of any other agency or government binding upon it, or (3)
any provision of any material indenture, agreement or other
instrument to which it is a party or by which its
properties or assets are or may be bound, including,
without limitation, the Note Agreement, or (B) result in a
breach or constitute (along or with due notice or lapse of
time or both) a default under any indenture, agreement or
other instrument referred to in clause (iii)(A)(3) of this
Section 3(e);
(f) except as set forth in Sections 5(d) and (e) and
as set forth in the description of the 0.25% restructuring
fee contained in Section 2.3 of this Second Amendment and
comparable fees as set forth in the separate amendments
dated as of the date hereof to each of the Specified
Agreements, the Company has not paid or agreed to pay any
fee or other compensation to any party to the Specified
Agreements in connection with the amendment of the Note
Agreement or the Notes;
12
(g) as of the date hereof and after giving effect to
this Second Amendment, no Default or Event of Default has
occurred which is continuing; and
(h) all the representations and warranties contained
in Section 5 of the Note Agreement are true and correct in
all material respects with the same force and effect as if
made by the Company on and as of the date hereof.
SECTION 4 Reaffirmation of Subsidiary Guarantee Agreement. Each of the
Guarantors hereby reaffirms each of their obligations under the Subsidiary
Guarantee Agreement after giving effect to this Second Amendment.
SECTION 5 Conditions to Effectiveness of this Amendment. Subject to the
proviso below, this Second Amendment shall be deemed effective as of April 11,
2003, provided that each and every one of the following conditions shall have
been satisfied:
(a) each Amended and Restated Note or, if requested
by any Noteholder, each Allonge shall have been duly
executed by the Company and shall have been delivered to
the Noteholders or their special counsel;
(b) executed counterparts of this Second Amendment,
duly executed by the Company, the Guarantors and the
holders of 100% of the outstanding principal amount of the
Notes, shall have been delivered to the Noteholders;
(c) the representations and warranties of the Company
and the Guarantors set forth in Section 3 hereof are true
and correct on and with respect to the date hereof;
(d) subject to Section 8.7(b) of the Note Purchase
Agreement, the Company shall have paid in cash an amendment
fee to each Noteholder in an amount equal to 0.625% of the
outstanding principal amount of the Notes (other than the
Deferral Fee Notes and Make-Whole Notes) held by such
Noteholder (each as calculated on the Second Amendment
Effective Date);
(e) the Company shall have paid to each Noteholder
the aggregate amount of interest, accrued and unpaid up to
and including the Second Amendment Effective Date, on the
Notes, including, without limitation as a result of the
effectiveness of the 0.50% increase in the Series A
Applicable Rate effective as of February 27, 2003 pursuant
hereto;
(f) the Company shall have paid the reasonable fees
and expenses of Schiff Hardin & Waite, special counsel to
the Noteholders, in connection with the negotiation,
preparation, approval, execution and delivery of this
Second Amendment;
(g) the Noteholders shall have received similar
executed amendments to the Specified Agreements in form and
substance satisfactory to the Noteholders;
13
provided that upon the satisfaction of the foregoing conditions
precedent, the amendments set forth in this Second Amendment relating
to the Series A Applicable Rate shall be effective as of February 27,
2003 and the amounts added to the Make-Whole Notes for February 28,
2003 and March 31, 2003 shall be adjusted accordingly.
SECTION 6 Consents and Waivers. Upon and by virtue of this Second
Amendment becoming effective as herein contemplated, the Noteholders hereby
consent to the amendments specified herein, including the amendment of the
Specified Agreements, in each case in a manner similar to the amendments
hereunder.
SECTION 7 Miscellaneous.
(a) This Second Amendment shall be construed in
connection with and as part of the Note Agreement, and
except as modified and expressly amended by this Second
Amendment, all terms, conditions and covenants contained in
the Note Agreement are hereby ratified and shall be and
remain in full force and effect.
(b) Any and all notices, requests, certificates and
other instruments executed and delivered after the
execution and delivery of this Second Amendment may refer
to the Note Agreement without making specific reference to
this Second Amendment, but nevertheless all such references
shall include this Second Amendment unless the context
otherwise requires.
(c) The descriptive headings of the various Sections
or parts of this Second Amendment are for convenience only
and shall not affect the meaning or construction of any of
the provisions hereof.
(d) This Second Amendment shall be governed by and
construed in accordance with Illinois law, excluding
choice-of-law principles of the law of such State that
would require the application of the laws of a jurisdiction
other than such State.
(e) The execution hereof by you shall constitute a
contract between us for the uses and purposes hereinabove
set forth, and this Second Amendment may be executed in any
number of counterparts, each executed counterpart
constituting an original, but all together only one
agreement.
14
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
WABASH NATIONAL CORPORATION
By:___________________________________
Christopher A. Black, Vice President
& Treasurer
Accepted and Agreed:
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Accepted and Agreed:
NATIONWIDE LIFE INSURANCE COMPANY
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Accepted and Agreed:
WEST COAST LIFE INSURANCE COMPANY
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Accepted and Agreed:
NATIONWIDE LIFE AND ANNUITY
INSURANCE COMPANY
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Accepted and Agreed:
GREAT-WEST LIFE & ANNUITY INSURANCE
COMPANY
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
CONSENT AND REAFFIRMATION
Each of the undersigned hereby acknowledges receipt of a copy
of the foregoing Second Amendment dated as of April 11, 2003 ("Second
Amendment") to the Amended and Restated Note Purchase Agreement, dated as of
April 12, 2002 and as amended on December 13, 2002 by and among Wabash National
Corporation, a Delaware corporation ("Company"), and the several Noteholders
party to the Note Agreement (collectively, the "Noteholders"). Capitalized terms
used in this Consent and Reaffirmation and not defined herein shall have the
meanings given to them in the Note Purchase Agreement. Without in any way
establishing a course of dealing by the Noteholders, each of the undersigned
consents to the Second Amendment and reaffirms the terms and conditions of the
Guaranty, the Note Purchase Agreement and any other Note Document executed by it
and acknowledges and agrees that such agreement and each and every such Note
Document executed by the undersigned in connection with the Note Purchase
Agreement remains in full force and effect and is hereby reaffirmed, ratified
and confirmed. All references to the Note Purchase Agreement contained in the
above-referenced documents shall be a reference to the Note Purchase Agreement
as so modified by the Second Amendment and as the same may from time to time
hereafter be amended, modified or restated.
Dated: April 11, 2003
APEX TRAILER LEASING & RENTALS, L.P.
By: Wabash National Corporation, its general partner
By: _______________________________________________
Christopher A. Black, Vice President & Treasurer
CLOUD OAK FLOORING COMPANY, INC.
By: _______________________________________________
Christopher A. Black, Authorized Representative
CONTINENTAL TRANSIT CORPORATION
By: _______________________________________________
Christopher A. Black, Authorized Representative
FTSI DISTRIBUTION COMPANY, L.P.
By: Wabash National Trailer Centers, Inc.,
formerly known as NOAMTC, Inc.,
its general partner
By: _______________________________________________
Christopher A. Black, Authorized Representative
NATIONAL TRAILER FUNDING, L.L.C.
By: Wabash National Trailer Centers, Inc.,
formerly known as NOAMTC, Inc., its Member
By: _______________________________________________
Christopher A. Black, Authorized Representative
WABASH NATIONAL TRAILER CENTERS, INC.,
formerly known as NOAMTC, Inc.
By: _______________________________________________
Christopher A. Black, Authorized Representative
WABASH FINANCING LLC
By: _______________________________________________
Christopher A. Black, Authorized Representative
WABASH NATIONAL L.P.
By: Wabash National Trailer Centers, Inc.,
formerly known as NOAMTC, Inc.,
its general partner
By: _______________________________________________
Christopher A. Black, Authorized Representative
WABASH NATIONAL SERVICES, L.P.
By: Wabash National Trailer Centers, Inc.,
formerly known as NOAMTC, Inc.,
its general partner
By: _______________________________________________
Christopher A. Black, Authorized Representative
WABASH TECHNOLOGY CORP.
By: _______________________________________________
Christopher A. Black, Authorized Representative
WNC CLOUD MERGER SUB, INC.
By: _______________________________________________
Christopher A. Black, Authorized Representative
WNC RECEIVABLES MANAGEMENT CORP.
By: _______________________________________________
Christopher A. Black, Secretary
WTSI TECHNOLOGY CORP.
By: _______________________________________________
Christopher A. Black, Authorized Representative
[FORM OF NOTE]
AMENDED AND RESTATED
WABASH NATIONAL CORPORATION
SERIES A ADJUSTING RATE SENIOR SECURED NOTE DUE MARCH 30, 2004
No. [_____] [Date]
$[_______] PPN: [________]
FOR VALUE RECEIVED, the undersigned, WABASH NATIONAL CORPORATION
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to
[___________________________], or registered assigns, the principal sum of
[___________________________] DOLLARS on March 30, 2004, with interest (computed
on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid
balance thereof at the rate equal to the Series A Applicable Rate (as defined
below) from the date hereof, payable monthly, on the last Business Day of each
calendar month in each year, commencing with the last Business Day of the
calendar month next succeeding the date hereof, until the principal hereof shall
have become due and payable, and (b) to the extent permitted by law on any
overdue payment (including any overdue prepayment) of principal, any overdue
payment of interest and any overdue payment of any Make-Whole Amount (as defined
in the Note Purchase Agreement referred to below), payable monthly as aforesaid
(or, at the option of the registered holder hereof, on demand), at a rate per
annum from time to time equal to the greater of (i) 2.00% over the Series A
Applicable Rate or (ii) 2.00% over the rate of interest publicly announced by
Morgan Guaranty Trust Company of New York from time to time in New York, New
York as its "base" or "prime" rate. As used herein, "Series A Applicable Rate"
means, at any time, the sum of (i) 10.16% per annum plus (ii) the Applicable
Margin (as defined in the Note Purchase Agreement) at such time.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at Chicago, Illinois or at such other place as the Company shall have
designated by written notice to the holder of this Note as provided in the Note
Purchase Agreements referred to below.
This Note is one of a series of Series A Senior Secured Notes (herein
called the "Notes") issued pursuant to separate Amended and Restated Note
Purchase Agreements, each dated as of April 12, 2002 (as from time to time
amended, the "Note Purchase Agreements"), between the Company and the respective
Purchasers named therein and is entitled to the benefits thereof. Each holder of
this Note will be deemed, by its acceptance hereof, (i) to have agreed to the
confidentiality provisions set forth in Section 20 of the Note Purchase
Agreements and (ii) to have made the representation set forth in Section 6.2 of
the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase Agreements,
upon surrender of this Note for registration of transfer, duly endorsed, or
accompanied by a written instrument of transfer duly executed, by the registered
holder hereof or such holder's attorney duly authorized in writing, a new Note
for a like principal amount will be issued to, and
EXHIBIT 1
(to Note Purchase Agreement)
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
This Note is subject to mandatory and optional prepayment, in whole or
from time to time in part, at the times and on the terms specified in the Note
Purchase Agreements, but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreements.
This Note is equally and ratably secured by the Collateral Documents
(as defined in the Note Purchase Agreements). Reference is hereby made to the
Collateral Documents for a description of the collateral thereby mortgaged,
warranted, bargained, sold, released, conveyed, assigned, transferred, pledged
and hypothecated, the nature and extent of the security for the Notes, the
rights of the holders of the Notes, the Collateral Agent (as defined in the Note
Purchase Agreements) in respect of such security and otherwise.
The payment of the principal amount of, premium, if any, and interest
on this Note has been unconditionally guaranteed by the Guarantors (as defined
in the Note Purchase Agreements) pursuant to the Note Guaranty (as defined in
the Note Purchase Agreements). Reference is hereby made thereto for a statement
of the rights and benefits accorded thereby.
THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF ILLINOIS
EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE
THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
WABASH NATIONAL CORPORATION
By: __________________________________
Title:____________________________
E-1-2
[FORM OF MAKE-WHOLE NOTE]
AMENDED AND RESTATED
WABASH NATIONAL CORPORATION
SERIES A ADJUSTING RATE SENIOR SECURED PIK NOTE DUE MARCH 30, 2004
No. [_______] [_____________]
$[__________] PPN: [________]
FOR VALUE RECEIVED, the undersigned, WABASH NATIONAL CORPORATION
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to
[____________________________], or registered assigns, the [____] Note Accreted
Principal Amount on March 30, 2004. The outstanding principal amount of this
Senior Secured PIK Note shall accrete at the Series A Applicable Rate on a
monthly basis on the last Business Day of each calendar month in each year
commencing with the last Business Day of the calendar month next succeeding the
date hereof (computed on the basis of a year of 360 days and twelve 30-day
months) from January 31, 2003 and shall cease to accrete on the date on which
this Senior Secured PIK Note shall have been paid in full; provided that in the
case of any prepayment or other payment of this Senior Secured PIK Note on any
date other than the last Business Day of any calendar month, the outstanding
principal amount of this Senior Secured PIK Note shall accrete at the Series A
Applicable Rate on a daily basis from the date of the last Business Day of such
calendar month to the date of such prepayment; provided further that upon the
occurrence of an Event of Default (as defined in the Note Purchase Agreements
referred to below and until such Event of Default has been cured or waived in
writing (such period constituting a "Default Interest Period"), the outstanding
principal amount of this Senior Secured PIK Note shall accrete, to the extent
permitted by law, at a rate per annum from time to time equal to the greater of
(i) 2% over the Series A Applicable Rate or (ii) 2% over the rate of interest
publicly announced by Morgan Guaranty Bank of New York from time to time in New
York, New York as its "base" or "prime" rate. It is understood and agreed that
any reference in this Senior Secured PIK Note to the "principal amount" of this
Senior Secured PIK Note shall include a reference to the [____] Note Accreted
Principal Amount thereof whether or not specifically set forth. As used herein,
"Series A Applicable Rate" means, at any time, the sum of (i) 10.16% per annum
plus (ii) the Applicable Margin (as defined in the Note Purchase Agreement) at
such time.
"[____] Note Accreted Principal Amount" shall mean with reference to
this Senior Secured PIK Note, as of any date of determination, the sum of (a)
[__________] and (b) the outstanding principal amount of this Senior Secured PIK
Note which shall have been accreted thereon from January 31, 2003 through such
date, such amount shall accrete at the Series A Applicable Rate on a monthly
basis on the last Business Day of each calendar month in each year commencing
with the last Business Day of the calendar month next succeeding the date hereof
(computed on the basis of a year of 360 days and twelve 30-day months) and shall
cease to accrete on the date on which this Senior Secured PIK Note shall have
been paid in full; provided that in the case of any prepayment or other payment
of this Senior Secured PIK Note
EXHIBIT 2
to Note Purchase Agreement)
on any date other than the last Business Day of any calendar month, the
outstanding principal amount of this Senior Secured PIK Note shall accrete at
the Series A Applicable Rate on a daily basis from the date of the last Business
Day of such calendar month to the date of such prepayment.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at Chicago, Illinois or at such other place as the Company shall have
designated by written notice to the holder of this Note as provided in the Note
Purchase Agreements referred to below.
This Note is one of the Series A Applicable Rate Senior Secured PIK
Notes, due March 30, 2004 (the "Deferral Fee Notes") of the Company in the
aggregate original principal amount of [_________] which, together with the
Company's Notes and Make-Whole Notes (as each is defined in the Note Purchase
Agreements described below) are hereinafter referred to collectively as the
"Notes", are issued and outstanding pursuant to separate Amended and Restated
Note Purchase Agreements, each dated as of April 12, 2002 (as from time to time
amended, the "Note Purchase Agreements"), between the Company and the respective
Purchasers named therein and is entitled to the benefits thereof. Each holder of
this Note will be deemed, by its acceptance hereof, (i) to have agreed to the
confidentiality provisions set forth in SECTION 20 of the Note Purchase
Agreements and (ii) to have made the representation set forth in SECTION 6.2 of
the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make a required prepayment of principal on the date
and in the amount specified in the Note Purchase Agreements. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreements, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the [____] Note Accreted Principal Amount of this Note
may be declared or otherwise become due and payable in the manner, at the price
(including any applicable Make-Whole Amount) and with the effect provided in the
Note Purchase Agreements.
This Note is equally and ratably secured by the Collateral Documents (as defined
in the Note Purchase Agreements). Reference is hereby made to the Collateral
Documents for a description of the collateral thereby mortgaged, warranted,
bargained, sold, released, conveyed, assigned, transferred, pledged and
hypothecated, the nature and extent of the security for the
E-2-2
Notes, the rights of the holders of the Notes, the Collateral Agent (as defined
in the Note Purchase Agreements) in respect of such security and otherwise.
The payment of all [____] Note Accreted Principal Amount of, premium,
if any, and interest on this Note has been unconditionally guaranteed by the
Guarantors (as defined in the Note Purchase Agreements) pursuant to the Note
Guaranty (as defined in the Note Purchase Agreements). Reference is hereby made
thereto for a statement of the rights and benefits accorded thereby.
This Note shall be construed and enforced in accordance with, and the
rights and parties shall be governed by, the law of the State of Illinois,
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
WABASH NATIONAL CORPORATION
By: ________________________________
Title:__________________________
E-2-3
[FORM OF PIK GRID NOTE]
AMENDED AND RESTATED
WABASH NATIONAL CORPORATION
SENIOR SECURED PIK GRID NOTE DUE MARCH 30, 2004
No. [____] [_____________]
PPN: [________]
FOR VALUE RECEIVED, the undersigned, WABASH NATIONAL CORPORATION
(herein called the "Company"), a corporation organized and existing under the
laws of the State of Delaware, hereby promises to pay to [___________________],
or registered assigns, the [____] Note Accreted Principal Amount on March 30,
2004. The outstanding principal amount of this Senior Secured PIK Grid Note
shall accrete at the Series A Applicable Rate per annum on a monthly basis on
the last Business Day of each calendar month in each year commencing with the
last Business Day of the calendar month next succeeding the date hereof
(computed on the basis of a year of 360 days and twelve 30-day months) from the
date of issuance hereof and shall cease to accrete on the date on which this
Senior Secured PIK Grid Note shall have been paid in full; provided that in the
case of any prepayment or other payment of this Senior Secured PIK Grid Note on
any date other than the last Business Day of any calendar month, the outstanding
principal amount of this Senior Secured PIK Grid Note shall accrete at the
Series A Applicable Rate per annum on a daily basis from the date of the last
Business Day of such calendar month to the date of such prepayment; provided,
further that upon the occurrence of an Event of Default (as defined in the Note
Purchase Agreement referred to below and until such Event of Default has been
cured or waived in writing (such period constituting a "Default Interest
Period"), the outstanding principal amount of this Senior Secured PIK Grid Note
shall accrete, to the extent permitted by law, at a rate per annum from time to
time equal to the greater of (i) 2.00% over the Series A Applicable Rate or (ii)
2.00% over the rate of interest publicly announced by Morgan Guaranty Bank of
New York from time to time in New York, New York as its "base" or "prime" rate.
It is understood and agreed that any reference in this Senior Secured PIK Grid
Note to the "principal amount" of this Senior Secured PIK Grid Note shall
include a reference to the [____] Note Accreted Principal Amount thereof whether
or not specifically set forth. As used herein, "Series A Applicable Rate" means,
at any time, the sum of (i) 10.16% per annum plus (ii) the Applicable Margin (as
defined in the Note Purchase Agreement) at such time.
"[____] Note Accreted Principal Amount" shall mean with reference to
this Senior Secured PIK Grid Note, as of any date of determination, the sum of
(a) the Make-Whole Amounts which shall become payable to the holder of this Note
with respect to such holder's Series A Notes, from time to time upon payment by
the Company of portions of the principal amount of such Notes pursuant to
Section 8.1(b) of the Note Purchase Agreement and (b) the outstanding principal
amount of this Senior Secured PIK Grid Note which shall have been accreted
thereon from the date of issuance through such date, such amount shall accrete
at the Series A Applicable Rate per annum on a monthly basis on the last
Business Day of each calendar month in each year commencing with the last
Business Day of the calendar month next succeeding the date hereof (computed on
the basis of a year of 360 days and twelve 30-day
EXHIBIT 3
(to Note Purchase Agreement)
months) and shall cease to accrete on the date on which this Senior Secured PIK
Grid Note shall have been paid in full; provided that in the case of any
prepayment or other payment of this Senior Secured PIK Grid Note on any date
other than the last Business Day of any calendar month, the outstanding
principal amount of this Senior Secured PIK Grid Note shall accrete at the
Series A Applicable Rate per annum on a daily basis from the date of the last
Business Day of such calendar month to the date of such prepayment. The amounts
of the Make-Whole Amounts payable from time to time may for the convenience of
the parties be recorded by the holder hereof on the attached Grid however the
books and records of the holder shall, in the absence of manifest error, be
conclusive as to the determination of the Make-Whole Amounts evidenced by this
Note.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at Chicago, Illinois or at such other place as the Company shall have
designated by written notice to the holder of this Note as provided in the Note
Purchase Agreement referred to below.
This Note is one of the Senior Secured PIK Grid Notes due March 30,
2004 (the "Make-Whole Notes") of the Company which, together with the Company's
Notes and Deferral Fee Notes (as each is defined in the Note Purchase Agreement
described below) are hereinafter referred to collectively as the "Notes", are
issued and outstanding pursuant to that certain Amended and Restated Note
Purchase Agreement, dated as of April 12, 2002 (as from time to time amended,
the "Note Purchase Agreement"), between the Company and the respective
Purchasers named therein and is entitled to the benefits thereof. Each holder of
this Note will be deemed, by its acceptance hereof, (i) to have agreed to the
confidentiality provisions set forth in Section 20 of the Note Purchase
Agreement and (ii) to have made the representation set forth in Section 6.2 of
the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
The Company will make a required prepayment of principal on the date
and in the amount specified in the Note Purchase Agreement. This Note is also
subject to optional prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase Agreement, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreement,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note Purchase
Agreement.
E-3-2
This Note is equally and ratably secured by the Collateral Documents
(as defined in the Note Purchase Agreement). Reference is hereby made to the
Collateral Documents for a description of the collateral thereby mortgaged,
warranted, bargained, sold, released, conveyed, assigned, transferred, pledged
and hypothecated, the nature and extent of the security for the Notes, the
rights of the holders of the Notes, the Collateral Agent (as defined in the Note
Purchase Agreement) in respect of such security and otherwise.
The payment of all [____] Note Accreted Principal Amount of, premium,
if any, and interest on this Note has been unconditionally guaranteed by the
Guarantors (as defined in the Note Purchase Agreement) pursuant to the Note
Guaranty (as defined in the Note Purchase Agreement). Reference is hereby made
thereto for a statement of the rights and benefits accorded thereby.
THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS AND PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF ILLINOIS,
EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE
THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
WABASH NATIONAL CORPORATION
By: ______________________________
Title: ______________________________
E-3-3
WABASH NATIONAL CORPORATION
SCHEDULE OF MAKE-WHOLE AMOUNTS DUE UNDER THE SENIOR SECURED PIK GRID NOTE DUE
MARCH 30, 2004
Total
Accreted
Principal,
Accreted Accreted Interest and
Make-Whole Principal Applicable Interest Deferral Fee
Date Amount Amount Interest Rate Payable Payable
4/30/02
5/31/02
6/30/02
7/31/02
8/31/02
9/30/02
10/31/02
11/30/02
12/31/02
1/31/03
2/28/03
3/31/03
4/30/03
5/31/03
6/30/03
7/31/03
8/31/03
9/30/03
10/31/03
11/30/03
12/31/03
1/31/04
2/28/04
E-2-4
Amended Exhibit 7.1(b)
FORM OF COMPLIANCE CERTIFICATE
To: The Parties to the
Note Agreements Described Below
This Compliance Certificate is furnished
pursuant to that certain Amended and Restated Note Purchase
Agreement dated as of April 12, 2002 (as amended, modified,
renewed or extended from time to time, the "Agreement")
between Wabash National Corporation (the "Company"), and each
of the Purchasers named therein. Unless otherwise defined
herein, capitalized terms used in this Compliance Certificate
have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ________________ of
the Company and the [Chief Financial Officer] [Treasurer];
2. I have reviewed the terms of the
Agreement and I have made, or have caused to be made under my
supervision, a detailed review of the transactions and
conditions of the Company and its Subsidiaries during the
accounting period covered by the attached financial
statements;
3. The examinations described in paragraph 2
did not disclose, and I have no knowledge of, the existence of
any condition or event which constitutes a Default or Event of
Default during or at the end of the accounting period covered
by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I and Schedule II attached
hereto set forth financial data and computations evidencing
the Company's compliance with certain covenants of the
Agreement and the Excess Cash Flow during the accounting
period covered by the attached financial statements, all of
which data and computations are true, complete and correct.
Exhibit 7/1(b)
(to Note Purchase Agreement)
Described below are the exceptions, if any,
to paragraph 3, listing, in detail, the nature of the
condition or event, the period during which it has existed and
the action which the Company has taken, is taking, or proposes
to take with respect to each such condition or event:
______________________________________________________________
______________________________________________________________
E-7.1(b)-2
The foregoing certifications, together with the computations
set forth in Schedule I and Schedule II hereto and the financial statements
delivered with this Certificate in support hereof, are made and delivered this
_____ day of __________, ____.
________________________________
[Insert Name of Officer]
Wabash National Corporation
Quarterly Compliance Certificate Worksheet
COMPLIANCE CERTIFICATE
QUARTERLY SCHEDULE OF COMPLIANCE AS OF _______________, 2002
(DOLLARS IN THOUSANDS)
A. EXCESS CASH FLOW (PARAGRAPH 4B(c))
1. Actual Amount:
a. Sum of Cash & Cash Equivalents $ -
b. Quarterly Average Available Liquidity $ -
-----------
c. Total Available Liquidity (a+b) $ -
2. Projected Amount:
a. Liquidity Amount (Schedule B-19) $ -
b. Cash Basket $ 5,000
-----------
c. Total Projected Liquidity Amount (a+b) $ 5,000
3. Cash Flow Available for Debt Paydown (1c - 2c) $ (5,000)
B. MAXIMUM LEVERAGE VALUATION RATIO (PARAGRAPH 6C(c))
1. Actual Amount:
a. Senior Notes
b. Indebtedness under Credit Agreement
(excluding L/C Obligations) -----------
c. Total Debt (a+b) $ -
d. Cash and Cash Equivalents
e. Net Inventory
f. Net Prepaid and Other Expenses
g. Net PP&E
-----------
h. Total Assets (d+e+f+g) $ -
i. Leveraged Ratio (c/h) 0.00x
2. Maximum Permitted Ratio x
C. MAXIMUM CAPITAL EXPENDITURES (PARAGRAPH 6C(f))
1. Actual Amount:
a. Capital Expenditures (Fiscal Year-to-Date) $ -
2. Maximum Annual Allowed Amount $ 6,000
D. MAXIMUM FINANCE CONTRACTS (PARAGRAPH 6C(g))
1. Actual Amount:
a. Finance Contracts (12 mth period 4/12/02-4/11/03) $ -
2. Maximum Annual Allowed Amount $ 5,000
Wabash National Corporation
Monthly Compliance Certificate Worksheet
COMPLIANCE CERTIFICATE
MONTHLY SCHEDULE OF COMPLIANCE AS OF _________, 2003
(DOLLARS IN THOUSANDS)
A. MINIMUM ROLLING 12 MONTH CONSOLIDATED EBITDA (PARAGRAPH 6C(d))
1. Actual Amount:
a. Consolidated Operating Income $ -
b. Foreign and Domestic Taxes Deducted in Operating Income $ -
c. Interest Expense Deducted in Operating Income $ -
d. Other Non-Cash Charges Deducted in Operating Income $ -
(Aggregate Annual Amount not in Excess of $15,000,000)
e. Depreciation Expense Deducted in Operating Income $ -
f. Amortization Expense Deducted in Operating Income $ -
g. Interest Income Included in Operating Income $ -
h. Total Tax Benefit Included in Operating Income $ -
i. Consolidated EBITDA (a+b+c+d+e+f-g-h) $ -
2. Minimum Required Amount $ -
Wabash National Corporation
Quarterly Compliance Certificate Worksheet
COMPLIANCE CERTIFICATE
QUARTERLY SCHEDULE OF COMPLIANCE AS OF _________, 2003
(DOLLARS IN THOUSANDS)
A. EXCESS CASH FLOW (PARAGRAPH 4B(c))
1. Actual Amount:
a. Sum of Cash & Cash Equivalents $ -
b. Available Liquidity $ -
-----------
c. Total Available Liquidity (a+b) $ -
2. Deduction $ 50,000
3. Gross Excess Cash Flow
-----------
4. Excess Cash Flow (lesser of $20,000 and item 3)
-----------
B. MINIMUM CONSOLIDATED TAX ADJUSTED EQUITY (PARAGRAPH 6C(a))
1. Actual Amount:
a. Consolidated Equity $ -
b. Cumulative Federal, State and Local Income
Tax Benefit $ -
-----------
c. Consolidated Tax Adjusted Equity(a+b) $ -
2. Minimum Required Amount $ -
C. MINIMUM CONSOLIDATED EQUITY (PARAGRAPH 6C(b))
1. Actual Amount:
a. Consolidated Equity $ -
b. Minimum Required Amount $ -
D. MAXIMUM LEVERAGE VALUATION RATIO (PARAGRAPH 6C(c))
1. Actual Amount:
a. Senior Notes $ -
b. Indebtedness under Credit Agreement
(excluding L/C Obligations) $ -
-----------
c. Total Debt (a+b) $ -
d. Cash and Cash Equivalents $ -
e. Net Inventory $ -
f. Net Prepaid and Other Expenses $ -
g. Net PP&E $ -
-------
h. Total Assets (d+e+f+g) $ -
i. Leverage Ratio (c/h) x
------
2. Maximum Permitted Ratio x
------
E. MINIMUM INTEREST COVERAGE RATIO (PARAGRAPH 6C(e))
1. Actual Amount:
a. Cumulative Consolidated EBITDA $ -
b. Cumulative Interest Expense $ -
c. Interest Coverage Ratio (a/b) x
------
2. Minimum Ratio Allowed -
F. MAXIMUM CAPITAL EXPENDITURES (PARAGRAPH 6C(f))
1. Actual Amount:
a. Capital Expenditures (Fiscal Year-to-Date) $ -
2. Maximum Annual Allowed Amount $ 6,000
G. MAXIMUM FINANCE CONTRACTS (PARAGRAPH 6C(g))
1. Actual Amount:
a. Finance Contracts
(12 month period 4/12/02-4/11/03) $ -
(12 month period 4/12/03-4/11/04) $
2. Maximum Annual Allowed Amount $ 5,000
H. MAXIMUM OTHER UNSECURED INDEBTEDNESS (PARAGRAPH 6B(a)(ix))
1. Actual Amount: $_______
2. Maximum Permitted Amount: $3,000
I. SALES OF ASSETS (PARAGRAPH 6B(b) [IF APPLICABLE])
1. Actual Amount:
a. Total amount of sales of assets in current fiscal
year to date (See Schedule II for detail) $_______
2. Maximum Permitted Amount: $5,000
J. SALES OF ASSETS BY APEX TRAILER LEASING & RENTALS, L.P. ("APEX")
(PARAGRAPH 6B(b)(iv))
1. Actual Amount:
a. Total amount of sales of assets in current
fiscal year to date (See Schedule II for detail) $________
2. Maximum Permitted Amount:
a. Total Assets of APEX at end of prior fiscal year $________
b. Intangible assets -________
c. Tangible Assets of APEX at end of prior
fiscal year =$________
x 0.50
d. Maximum Permitted Amount =$_______
K. INVESTMENTS (PARAGRAPH 6B(d)(vii))
For each new Investment pursuant to Paragraph 6B(d)(vii) of the
Agreement during the most recent fiscal quarter covered by this
Certificate, complete the following:
1. Date and brief description of nature of new Investment:
-------------------------------------------------------
-------------------------------------------------------
2. Actual Amount:
a. Amount of new Investment $_______
b. Amount of existing Investments under
Paragraph 6B(d)(vii) +_______
c. Total Investments under Paragraph 6B(d)(vii) =$______
3. Maximum Permitted Amount: $5,000
L. LEASES (PARAGRAPH 6B(n))
1. Actual Amount of Leases: $______
2. Maximum Permitted Amount: $3,500
SCHEDULE II TO COMPLIANCE CERTIFICATE
Schedule of Compliance as of __________, ____
(Dollars in Thousands)
A. Sales of Assets
[List separate sales and amounts] $_____________
______________
______________
______________
______________
Total $_____________