Exhibit 10.01
AMENDMENT NO. 2 TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS
AMENDMENT NO. 2 TO SECOND AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (“Amendment”) is dated as of April 28, 2008
and is by and among BANK OF AMERICA, N.A, successor to FLEET
CAPITAL CORPORATION, a Rhode Island corporation, and the other
parties identified as Lenders on the signature pages hereto
(collectively, “Lenders”), on the one hand, and WABASH
NATIONAL CORPORATION, a Delaware corporation, WABASH NATIONAL,
L.P., a Delaware limited partnership, WNC CLOUD MERGER SUB, INC.,
an Arkansas corporation, FTSI DISTRIBUTION COMPANY, L.P., a
Delaware limited partnership, and TRANSCRAFT CORPORATION, a
Delaware corporation (collectively, “Borrowers”), on
the other hand. Capitalized terms used herein but not otherwise
defined herein shall have the respective meanings assigned to such
terms in the Loan Agreement referred to herein below.
W I T N E S S E T H :
WHEREAS,
Lenders and Borrowers are parties to that certain Second Amended
and Restated Loan and Security Agreement, dated as of March 6,
2007 (as the same has been and may be amended, or modified from
time to time, the “Loan Agreement”), pursuant to which
the Lenders have agreed to make certain loans and other financial
accommodations to or for the account of Borrower;
WHEREAS,
Borrowers have requested that the Majority Lenders amend the Loan
Agreement in certain respects; and
WHEREAS,
Majority Lenders have agreed to amend the Loan Agreement on the
terms and subject to the conditions hereinafter set forth;
NOW,
THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the respective parties hereto hereby agree as
follows:
1.
Amendments . Subject to the satisfaction of the conditions
set forth in Section 3 below, and in reliance upon the
representations and warranties of Borrowers set forth in
Section 4 below, the Loan Agreement is hereby amended as
follows:
(a) The
first sentence of Section 1.1.1 of the Loan Agreement is
hereby amended and restated as follows:
“Each
Lender agrees, severally and not jointly, for so long as no Default
or Event of Default exists, to make Revolving Credit Loans to
Borrowers from time to time during the period from the date hereof
to but not including the last day of the Term, as requested by
Borrowers in the manner set forth in
Section 1.4 and subsection 3.1.1 hereof, up to a maximum
principal amount at any time outstanding equal to the lesser of
(i) such Lender’s Revolving Loan Commitment minus
the product of such Lender’s Revolving Loan Percentage and
the sum of the Dollar Equivalent of the LC Amount and LC
Obligations minus the product of such Lender’s
Revolving Loan Percentage and reserves (including without
limitation the Convertible Note Reserve) and (ii) the product
of (a) such Lender’s Revolving Loan Percentage and
(b) an amount equal to the sum of the Borrowing Base at such
time minus the sum of the Dollar Equivalent of the LC Amount
and LC Obligations minus reserves (including without
limitation the Convertible Note Reserve).”
(b) Section 8.1.16
of the Loan Agreement is hereby amended and restated in its
entirety, as follows:
8.1.16 [Intentionally Omitted]
”
(c) Section 8.2.3(ii)
of the Loan Agreement is hereby amended and restated in its
entirety, as follows:
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(ii) |
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Indebtedness in a principal amount
not to exceed $26,407,000 at any time outstanding evidenced by the
Convertible Notes and the other Convertible Note Documents (each as
in effect as of the date hereof);
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(d) |
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Appendix A of the Loan
Agreement is hereby amended as follows:
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(i) |
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the following new definition shall
be inserted in appropriate alphabetical order:
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“Convertible Note
Reserve” means, as of any date of determination, a borrowing
base reserve in an amount equal to the sum of the then outstanding
principal balance of the Convertible Notes plus all accrued
interest on the Convertible Notes through and including
August 1, 2008.
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(ii) |
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the definition of
“Availability” is hereby amended and restated in its
entirety, as follows:
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“Availability” means the
aggregate amount of additional money which Borrowers are entitled
to borrow from time to time as Revolving Credit Loans, such amount
being the difference derived when the sum of the principal amount
of Revolving Credit Loans then outstanding (including any amounts
which Agent or any Lender may have paid for the account of any
Borrower pursuant to any of the Loan Documents and which have not
been reimbursed by Borrowers), the sum of the Dollar Equivalent of
the LC Amount and the LC Obligations and any reserves (including
without limitation the Convertible Note Reserve), is subtracted
from the Borrowing Base. If the amount outstanding is equal to or
greater than the Borrowing Base, Availability is 0.
