Fruehauf Trailer Corp – ‘SC 13D’ on 5/21/97 re: Wabash National Corp/DE – EX-4.02

As of:  Wednesday, 5/21/97   ·   Accession #:  950152-97-4131   ·   File #:  5-41967

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General Statement of Beneficial Ownership   —   Schedule 13D
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: SC 13D      Wabash National Corporation/Fruehauf Trailer Corp.     7     33K 
 2: EX-4.02     Instrument Defining the Rights of Security Holders     7     21K 

EX-4.02   —   Instrument Defining the Rights of Security Holders

EX-4.02
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                                                                    Exhibit 4.02

POST-CLOSING AGREEMENT

                THIS POST-CLOSING AGREEMENT (this "Agreement") is made as of
April 16, 1997, by and among Fruehauf Trailer Corporation, a Delaware           
corporation ("Fruehauf"), and Wabash National Corporation, a Delaware           
corporation ("Wabash").                                                         

             WHEREAS, Fruehauf and Wabash have entered into a Purchase
Agreement, dated as of March 13, 1997, as amended (the "Purchase Agreement"),   
pursuant to which Fruehauf has agreed to sell certain of its assets to Wabash   
and Wabash has agreed to purchase such assets from Fruehauf, all in accordance  
with and subject to the terms and conditions set forth in the Purchase          
Agreement;                                                                      

          WHEREAS, Fruehauf has made certain representations and
warranties in the Purchase Agreement, the truth of which are a condition to     
Wabash's obligation to purchase pursuant to the Purchase Agreement;             

           WHEREAS, Fruehauf has agreed to perform in all material
respects each of Fruehauf's obligations to be performed on or prior to the      
Closing (as defined in the Purchase Agreement), such performance is a condition 
to Wabash's obligation to purchase pursuant to the Purchase Agreement;          

          WHEREAS, Wabash and Fruehauf agree that to satisfy the
aforementioned conditions, Fruehauf must fulfill certain obligations as more    
particularly set forth herein ("Closing Obligations"); and                      

               WHEREAS, Wabash has agreed to proceed with Closing pursuant
to the Purchase Agreement on the date hereof based on Fruehauf's covenant and   
agreement to Wabash that the Closing Obligations will be completed promptly,    
but in no event more than 30 days after the Closing Date (as defined in the     
Purchase Agreement), pursuant to the terms and conditions set forth herein;     

                 NOW, THEREFORE, for and in consideration of the covenants and
agreements of Fruehauf set forth herein, Wabash's agreement to proceed to       
Closing notwithstanding the failure of Fruehauf to satisfy the Closing on or    
before the Closing Date and other good and valuable consideration the           
sufficiency of which is hereby acknowledged, the parties hereto do agree as     
follows:                                                                        

             1.  TERMS. Capitalized terms not otherwise defined herein
shall have the meaning set forth in the Purchase Agreement.                     

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            2.  REPRESENTATIONS AND WARRANTIES OF FRUEHAUF. Fruehauf
hereby makes the following representations and warranties to Wabash:            

                     2.01  Fruehauf represents that it agreed in the
Purchase Agreement to perform in all material respects each of its obligations  
set forth in the Purchase Agreement on or prior to the Closing Date. Fruehauf   
agrees that the Purchase Agreement sets forth that Closing is subject to the    
fulfillment of its performance of such obligations.                             

                 2.02  Fruehauf acknowledges that all of its
obligations to be performed on or prior to the Closing pursuant to the Purchase 
Agreement have not been performed.                                              

                   2.03  Fruehauf acknowledges that the Purchase
Agreement requires, as a condition precedent to Wabash's obligation to proceed  
to Closing, that each of Fruehauf's representations and warranties set forth in 
the Purchase Agreement are true in all material respects on and as of the       
Closing Date.                                                                   

                     2.04  Fruehauf warrants and agrees that it will
complete, or cause to be completed, the Closing Obligations set forth in        
Sections 3, 4, 5 and 6 hereof promptly after the Closing Date, but in no event  
later than 30 days after the Closing Date, and Fruehauf acknowledges that Wabash
has relied on such agreement by Fruehauf in agreeing to proceed with the        
Closing.                                                                        

                3.  OFFICER IN DISSOLUTION. Fruehauf hereby agrees to retain
at least one individual as an officer of Fruehauf until the liquidation and     
dissolution of Fruehauf is complete pursuant to the laws of the State of        
Delaware and pursuant to the U.S. Bankruptcy Code. Fruehauf agrees that it      
shall cause such officer to be available to Wabash to participate in any        
completing or corrective action necessary in order to consummate the            
transactions contemplated by this Post-Closing Agreement.                       

                4.  REAL PROPERTY MATTERS. Fruehauf hereby agrees to satisfy
the following obligations with respect to the Real Property Interests:          

                       4.01  SURVEYS.  Fruehauf shall deliver final ALTA
surveys of the Real Property Interests in accordance with the requirements set  
forth in the Purchase Agreement (the "Surveys") within 30 days after Closing.   

                    4.02  LEGAL DESCRIPTION CORRECTIONS:  Fruehauf
shall cooperate with Wabash to the extent possible in the preparation and       
execution of any corrective deeds and/or the obtaining of any easements         
necessary to correct legal descriptions which the Surveys reflect as incorrect  
or unable to close by applicable surveying standards.                           

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                     4.03   ENCROACHMENTS.  Fruehauf shall cooperate
with Wabash to the extent possible in connection with effort by Wabash to obtain
easements from any adjoining property owners for any material encroachments of  
any buildings or improvements owned by Fruehauf over property lines as shown on 
the Surveys. Fruehauf shall cooperate with Wabash to the extent possible to     
obtain easements from any adjoining property owners for any non-material        
encroachments of any buildings or improvements owned by Fruehauf over property  
lines as shown on the Surveys.                                                  

                         4.04   ZONING VIOLATIONS.  Fruehauf shall cooperate
with Wabash in Wabash's efforts to remedy any zoning violations which are shown 
on the Surveys, including, without limitation, providing information regarding  
the Real Property Interests and executing any required affidavits to government 
authorities.                                                                    

                 5.  INTELLECTUAL PROPERTY MATTERS. Fruehauf agrees to satisfy
the following obligations with respect to the Intellectual Property:            

                   5.01  CONGRESS FINANCIAL CORPORATION RELEASE.
Fruehauf shall undertake its best efforts to obtain a release of any and all    
interests held by Congress Financial Corporation in any of the United States    
Patents listed in Schedule 1.1(e) to the Purchase Agreement, such release being 
in form and substance satisfactory to Wabash in its reasonable discretion and   
suitable for recordation with the proper filing authorities.                    

                         5.02  PATENT ASSIGNMENTS.  Fruehauf shall undertake
its best efforts to obtain agreements to assignment from (i) the investors of   
United States Patents Nos. 437206, 4287759, 5114169, and 4302913 and (ii)       
Kelsey-Hayes Company of United States Patents Nos. 4668023 and 4976501, in each 
case assigning all of such assignor's right, title and interest in and to such  
patents to Wabash or its designee, such assignment agreements to be in form and 
substance satisfactory to Wabash in its reasonable discretion and suitable for  
recordation with the proper filing authorities.                                 

                 6.  TERMINATION STATEMENTS. Fruehauf shall undertake its best
efforts to obtain the written release of any security interests relating to the 
Acquired Assets, including the security interests listed on Schedule A attached 
hereto, such termination statements being in form and substance satisfactory to 
Wabash in its reasonable discretion and suitable for recordation with the proper
filing authorities. This Section shall survive the termination of this          
Agreement.                                                                      

                 7.  VENDOR LETTERS. Fruehauf shall undertake its best efforts
to provide letters to its applicable vendors directing such vendors to remit    
deposits held by such vendors directly to Wabash as and to the extent provided  
in the Purchase Agreement.                                                      

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                 8. DEFAULT; REMEDIES. Fruehauf shall be in default under this
Agreement if all of the Closing Obligations have not been completed to the      
satisfaction of Wabash, in its sole discretion, by May 16, 1997. In the event   
of Fruehauf's default under this Agreement, Wabash shall be entitled to pursue  
any and all rights and remedies at law or in equity to which Wabash may be      
entitled.                                                                       

                9.  TERMINATION. This Agreement shall be terminated upon the
delivery of the written acknowledgement by Wabash that Fruehauf has completed   
its Closing Obligations in full, and may be terminated by the written mutual    
consent signed by the parties hereto.                                           

             10.  FURTHER ASSURANCES. Fruehauf agrees to undertake any
other actions and execute any other documents which Wabash, in its sole         
discretion, deems necessary to complete the transactions contemplated in the    
Purchase Agreement. This provision shall survive the termination of this        
Agreement.                                                                      

                 11.  NOTICE. Any notice, approval, demand, request, waiver or
other communication under this Agreement shall be made in writing and shall be  
deemed to be duly given (i) if served personally, on the date of such service,  
or (ii) if mailed by regular mail, on the third business day after mailing and  
(iii) if transmitted for next business day delivery by recognized overnight     
carrier, on the next business day after tender to the carrier. Such             
communications shall be sent to the following addresses:                        

(i)      If to Wabash:    

                   Wabash National Corporation
                   1000 Sagamore Parkway South
                 Lafayette, Indiana  47905
                   Telecopier:  (317) 449-5308
                  Attention:  Mark R. Holden

       with a copy to:

           John R. Gambs, Esq.
                    Gambs Mucker Bauman & Seeger
              10 North Fourth Street
     P.O. Box 1608
                 Lafayette, Indiana  47902
                   Telecopier:  (317) 742-4535

(ii)     If to Fruehauf:  

                    Fruehauf Trailer Corporation
           111 Monument Circle
  Suite 3200
                   Indianapolis, Indiana 46204
                    Attention: Thomas E. Ireland

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 with a copy to:

            Jones, Day, Reavis & Pogue
North Point   
     901 Lakeside Avenue
        Cleveland, Ohio  44114
             Telecopier:  (216) 579-0212
                    Attention:  William H. Coquillette

Notice of changes in the foregoing shall be given in the manner of giving notice
of any other communication.                                                     

                12.  BENEFIT AND ASSIGNMENT. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective  
successors and assigns as permitted hereunder. No person or entity other than   
the parties hereto and their respective successors and assigns, is or shall be  
entitled to bring any action to enforce any provision of this Agreement against 
any of the parties hereto, and the covenants and agreements set forth in this   
Agreement shall be solely for the benefit of, and shall be enforceable only by, 
the parties hereto or their respective successors and assigns as permitted      
hereunder. Wabash may assign this Agreement or all or any of its rights         
hereunder without the prior written consent of Fruehauf in connection with the  
sale or financing of all or any portion of the Real Property Interests purchased
pursuant to the Purchase Agreement. Fruehauf may not assign this Agreement or   
its rights or obligations hereunder without the prior written consent of Wabash.

              13.  ENTIRE AGREEMENT; AMENDMENT. This Agreement, together
with the Purchase Agreement, contains the entire agreement among the parties    
with respect to the subject matter hereof and supersedes all prior oral or      
written agreements, commitments or understandings with respect to such matters. 
This Agreement may not be changed orally, but only by an instrument in writing  
signed by the party against whom enforcement of any waiver, change,             
modification, extension or discharge is sought.                                 

               14.  HEADINGS. The headings of the sections and subsections
contained in this Agreement are inserted for convenience only and do not form a 
part or affect the meaning, construction or scope thereof.                      

                  15.  SIGNATURE IN COUNTERPARTS. This Agreement may be executed
in separate counterparts, none of which need contain the signatures of all      
parties, each of which shall be deemed to be an original, and all of which      
taken together constitute one and the same instrument. It shall not be          
necessary in making proof of this Agreement to produce or account for more than 
the number of counterparts containing the respective signatures of, or on       
behalf of, all of the parties hereto.                                           

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             16.  GOVERNING LAW. This Agreement is to be construed and
interpreted in accordance with the laws of the State of Delaware (exclusive of  
the choice of law provisions thereof).                                          

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             IN WITNESS WHEREOF, each of the parties has executed this
Agreement as of the day and year first above written.                           

                                   WABASH NATIONAL CORPORATION

                                           By:  ______________________________
                                Mark R. Holden
                                          Vice President and Chief
                                   Financial Officer

                                    FRUEHAUF TRAILER CORPORATION

                                           By:  ______________________________
                                Derek L. Nagle
                           President

Dates Referenced Herein   and   Documents Incorporated by Reference

				Referenced-On Page
This ‘SC 13D’ Filing		Date		First		Last			Other Filings
Filed on:		5/21/97
		5/16/97		4					S-3
		4/16/97		1					8-K
		3/13/97		1
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