exv10w1



 





EXHIBIT 10.1




AMENDMENT NO. 1 TO

SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT




          THIS AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (“Amendment”)
is dated as of September 24, 2007 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, the 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 reference to “$150,000,000” contained in the face page of the Loan Agreement is hereby
deleted and replaced with a reference to “$200,000,000”.




          (b) The reference to “$150,000,000” contained in the lead-in sentence of Section 1 of the Loan
Agreement is hereby deleted and replaced with a reference to “$200,000,000”.




          (c) The reference to “$100,000,000” contained in Section 1.1.6 of the Loan Agreement is hereby
deleted and replaced with a reference to “$50,000,000”.



 









 





          (d) Section 8.1.16 of the Loan Agreement is hereby amended and restated in its entirety as
follows:





     “8.1.16 Convertible Notes. No later than May 1, 2008, Wabash shall do
one or more of the following: (a) repurchase all or a portion of the Indebtedness
evidenced by the Convertible Notes and the other Convertible Note Documents with the
proceeds of the New Convertible Note Indebtedness or proceeds from the Loans, so
long as immediately after making any such payment with proceeds of the Loans,
Borrowers have Availability of at least $40,000,000, (b) defease any outstanding
Indebtedness evidenced by the Convertible Notes and the other Convertible Note
Documents, so long as immediately after making any such payment, Borrowers have
Availability of at least $40,000,000 or (c) institute cash reserves equal to any
outstanding principal balance of the Convertible Notes which reserves (i) shall
remain in place until all Indebtedness evidenced by the Convertible Notes has been
paid in full, and (ii) shall be used only to pay in full the outstanding
Indebtedness evidenced by the Convertible Notes, so long as immediately after
instituting any cash reserves from the proceeds of the Loans, Borrowers have
Availability of at least $40,000,000.”



          (e) Subsections 8.2.6(i) and (ii) of the Loan Agreement is hereby amended and restated in its
entirety as follows:





     ”(i) use or permit any of its Subsidiaries to use the proceeds of the Loans to
make any payment of any part or all of the Indebtedness evidenced by the Convertible
Notes and the other Convertible Note Documents (including, without limitation, any
mandatory or voluntary prepayment, purchase or redemption, including a repurchase
upon a “Change of Control” (as defined in the Convertible Note Indenture as in
effect on the date hereof)), except in the event that (a) no Default or Event of
Default is then in existence or would be caused thereby after giving effect thereto,
(b) immediately after giving effect to any such payment, Borrowers have Availability
of at least $40,000,000, and (c) at least 1 Business Day prior to any such payment,
Borrowers have delivered to Agent a certificate of Wabash’s Chief Financial Officer,
Treasurer or Assistant Treasurer, in form and substance reasonably satisfactory to
Agent, certifying compliance with each of the foregoing requirements and showing all
applicable calculations; provided, however, that Borrower and its
Subsidiaries may use the proceeds of the Loans to make regularly scheduled cash
payments of interest pursuant to the Convertible Note Documents (each in effect as
of the date hereof) at a rate of 3.25% per annum without having to comply with
clauses (b) and (c) above;




     (ii) use or permit any of its Subsidiaries to use the proceeds of the Loans to
make any payment of any part or all of the New Convertible Note Indebtedness
(including, without limitation, any mandatory or voluntary prepayment, purchase or
redemption), except in the event that (a) no Default



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or Event of Default is then in existence or would be caused thereby after
giving effect thereto, (b) immediately after completing any such payment, Borrowers
have Availability of at least $40,000,000, and (c) at least 1 Business Day prior to
any such payment, Borrowers have delivered to Agent a certificate of Wabash’s Chief
Financial Officer, Treasurer or Assistant Treasurer, in form and substance
reasonably satisfactory to Agent, certifying compliance with each of the foregoing
requirements and showing all applicable calculations; provided, however, that
Borrower and its Subsidiaries may make (A) regularly scheduled cash payments of
interest pursuant to the documents governing New Convertible Note Indebtedness, and
(B) payment of the extension fee referenced in Section 10.1.6, in each case without
having to comply with clauses (b) and (c) above;”



          (f) Subsection 8.2.7(v) of the Loan Agreement is hereby amended and restated in its entirety
as follows:





     ”(v) Distributions in the form of the redemption or other repurchase by Wabash
of Common Stock from time to time, in each case, so long as, and to the extent that,
(a) no Default or Event of Default is then in existence or would be caused thereby
after giving effect thereto, (b) immediately after completing such Distribution,
Borrowers have Availability of at least $40,000,000, and (c) at least 1 Business Day
prior to such Distribution, Borrowers have delivered to Agent a certificate of
Wabash’s Chief Financial Officer, Treasurer or Assistant Treasurer, in form and
substance reasonably satisfactory to Agent, certifying compliance with each of the
foregoing requirements and showing all applicable calculations;”



          (g) The address information for Agent contained in Section 12.8 of the Loan Agreement is
hereby deleted and replaced with the following:



“Bank of America, N.A.

231 South LaSalle

7th Floor

Mail Code IL1-231-07-49

Chicago, Illinois 60604

Attention: Loan Administration Manager (Wabash)

Facsimile No.: (312) 755-3300”




          (h) The references to “$150,000,000” contained in the definitions of “Revolving Credit Maximum
Amount” and “Total Credit Facility” set forth in Appendix A of the Loan Agreement are hereby
deleted and replaced with references to “$200,000,000”.




          (i) After giving effect to this Amendment, each Lender’s Revolving Loan Commitment shall be
equal to the amount set forth below such Lender’s name on the signature pages hereto.




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          (j) The schedules to the Loan Agreement are hereby amended and restated as set forth on
Exhibit A hereto (other than as provided in Section 5(b) below).




          2. Scope of Amendment. 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, this Amendment shall have the effect of amending the Loan Agreement as appropriate
to express the agreements contained herein. In all other respects, the Loan Agreement and the
other Loan Documents shall remain in full force and effect in accordance with their respective
terms.




          3. Conditions to Effectiveness. The effectiveness of this Amendment and the
amendments contained herein are subject to the satisfaction of the following conditions precedent
or concurrent:




          (a) Agent shall have received a copy of this Amendment executed by Borrowers and the Majority
Lenders, together with a reaffirmation of Guaranty Agreement executed by each Guarantor;




          (b) Agent shall have received each of the additional documents, instruments and agreements
listed on Exhibit B attached hereto, each in form and substance satisfactory to Agent,
together with such other documents, agreements and instruments as Agent may require or reasonably
request;




          (c) Agent shall have received a fully-earned, non-refundable commitment fee of $75,000 to be
paid pro rata to each Lender that increases its Revolving Loan Commitment pursuant to this
Amendment; and




          (d) No Default or Event of Default shall be in existence.




          4. Representations and Warranties. To induce Lenders to execute and deliver this
Amendment, Borrowers hereby represent and warrant to Lenders that, after giving effect to this
Amendment:




          (a) All representations and warranties contained in the Loan Agreement and the other Loan
Documents are true and correct in all material respects on and as of the date of this Amendment, in
each case as if then made, other than representations and warranties that expressly relate solely
to an earlier date (in which case such representations and warranties remain true and accurate on
and as of such earlier date).




          (b) No Default or Event of Default has occurred which is continuing.




          (c) This Amendment, and the Loan Agreement, as amended hereby, constitute legal, valid and
binding obligations of Borrowers and are enforceable against Borrowers in accordance with their
respective terms.




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          (d) The execution and delivery by Borrowers of this Amendment does not require the consent or
approval of any Person, except such consents and approvals as have been obtained.




          5. Post-Closing Agreements. As of April 6, 2007, (i) Borrowers’ obligations under that
certain post-closing letter agreement dated as of March 6, 2007 among Borrowers and Agent is hereby
terminated and (ii) Borrowers hereby agree to deliver the following items to Agent on or before the
applicable dates set forth below and agrees that any failure to do so shall constitute an Event of
Default under the Loan Agreement unless the time for such delivery is postponed by Agent with its
sole discretion:




          (a) On or before October 24, 2007, Borrowers shall deliver to Agent fully executed Deposit
Account Control Agreements covering the following accounts:




	 	 	 	 	 	 	 
	 	 	 	 	 
	Bank	 	Account Title	 	 	Account Number
	Fifth Third

	 	WNC Local Deposits
	 	 	7652206223	 
	National City Bank

	 	Wabash National Trailer
Centers, Inc.
	 	 	758138583	 
	Wells Fargo

	 	WNC Master
	 	 	4121283097	 
	Wells Fargo

	 	Local Desktop Deposit
	 	 	4121208185	 





In the event that Borrowers fail to obtain a Deposit Account Control Agreement for any of the
accounts listed above, such accounts shall be closed on or before November 8, 2007 and the funds
therein shall be transferred to a bank for which a Deposit Account Control Agreement, in form and
substance reasonably satisfactory to Agent, is in place.




          (b) On or before October 9, 2007, Borrowers shall deliver to Agent an updated Schedule 7.1.16
to the Loan Agreement, in form and substance reasonably satisfactory to Agent.




          6. Governing Law. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AMENDMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS AND DECISIONS OF THE
STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.




          7. Headings. Section headings in this Amendment are included herein for convenience
of reference only and shall not constitute a part of this Amendment for any other purpose.




          8. Counterparts. This Amendment may be executed in any number of counterparts and by
the different parties hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all of which shall together constitute one and the same instrument. Any
such counterpart which may be delivered by facsimile



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transmission shall be deemed the equivalent of an originally signed counterpart and shall be
fully admissible in any enforcement proceedings regarding this Amendment.




[Signature pages to follow]





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          IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered by their proper and duly authorized officers as of the date first set forth above.




	 	 	 	 	 	 	 
	 	 	LENDERS:	 	 
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A, successor to	 	 
	 	 	   FLEET CAPITAL CORPORATION,	 	 
	 	 	   as Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 	 	Revolving Loan Commitment (after giving effect to	 	 
	 	 	Amendment): $60,000,000	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Sandra Evans	 	 
	 

	 	Name:
	 	 

Sandra Evans
	 	 
	 

	 	Title:
	 	Senior Vice President	 	 





Amendment No. 1 to Second Amended and Restated Loan and Security Agreement





 









 








	 	 	 	 	 	 	 
	 	 	LASALLE BANK, NATIONAL ASSOCIATION,	 	 
	 	 	   as Syndication Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 	 	Revolving Loan Commitment (after giving effect to	 	 
	 	 	Amendment): $33,333,333.33	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Andrew J. Crask	 	 
	 

	 	Name:
	 	 

Andrew J. Crask
	 	 
	 

	 	Title:
	 	First Vice President	 	 





Amendment No. 1 to Second Amended and Restated Loan and Security Agreement




 









 








	 	 	 	 	 	 	 
	 	 	WELLS FARGO FOOTHILL, LLC as	 	 
	 	 	Syndication Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 	 	Revolving Loan Commitment (after giving effect to	 	 
	 	 	Amendment): $33,333,333.33	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Krista Wade	 	 
	 

	 	Name:
	 	 

Krista Wade
	 	 
	 

	 	Title:
	 	Assistant Vice President	 	 





Amendment No. 1 to Second Amended and Restated Loan and Security Agreement





 









 








	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A.,	 	 
	 	 	   as Documentation Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 	 	Revolving Loan Commitment (after giving effect to	 	 
	 	 	Amendment): $33,333,333.33	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Paul A. Taubeneck	 	 
	 

	 	Name:
	 	 

Paul A. Taubeneck
	 	 
	 

	 	Title:
	 	Assistant Vice President	 	 





Amendment No. 1 to Second Amended and Restated Loan and Security Agreement






 









 








	 	 	 	 	 	 	 
	 	 	NATIONAL CITY BUSINESS CREDIT, INC.,	 	 
	 	 	   as a Lender	 	 
	 
	 	 	 	 	 	 
	 	 	Revolving Loan Commitment (after giving effect to	 	 
	 	 	Amendment): $20,000,000	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Terry A. Graffis	 	 
	 

	 	Name:
	 	 

Terry A. Graffis
	 	 
	 

	 	Title:
	 	Vice President	 	 





Amendment No. 1 to Second Amended and Restated Loan and Security Agreement





 









 








	 	 	 	 	 	 	 
	 	 	GENERAL ELECTRIC CAPITAL	 	 
	 	 	   CORPORATION, as a Lender	 	 
	 
	 	 	 	 	 	 
	 	 	Revolving Loan Commitment (after giving effect to	 	 
	 	 	Amendment): $20,000,000	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert M. Reeg	 	 
	 

	 	Name:
	 	 

Robert M. Reeg
	 	 
	 

	 	Title:
	 	 Duly Authorized Signatory	 	 






Amendment No. 1 to Second Amended and Restated Loan and Security Agreement





 












 





	 	 	 	 	 	 	 
	 	 	BORROWERS:	 	 
	 
	 	 	 	 	 	 
	 	 	WABASH NATIONAL CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert J. Smith
 

Robert J. Smith
	 	 
	 

	 	Title:
	 	Senior Vice President and

Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	WABASH NATIONAL, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Wabash National Trailer Centers, Inc.,
its General Partner
	 	

	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert J. Smith
 

Robert J. Smith
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	WNC CLOUD MERGER SUB, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert J. Smith
 

Robert J. Smith
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	FTSI DISTRIBUTION COMPANY, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Wabash National Trailer Centers,

its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert J. Smith
 

Robert J. Smith
	 	 
	 

	 	Title:
	 	Vice President	 	 





Amendment No. 1 to Second Amended and Restated Loan and Security Agreement


 









 





	 	 	 	 	 	 	 
	 	 	TRANSCRAFT CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert J. Smith
 

Robert J. Smith
	 	 
	 

	 	Title:
	 	Vice President	 	 





Amendment No. 1 to Second Amended and Restated Loan and Security Agreement

 









 





EXHIBIT A




Amended and Restated Schedules




See attached.




 









 





EXHIBIT B




Closing Checklist




See attached.




 









 





REAFFIRMATION




          Wabash National Trailer Centers, Inc., a Delaware corporation, Wabash Financing LLC, a
Delaware limited liability company, National Trailer Funding, L.L.C., a Delaware limited liability
company, Wabash National Lease Receivables, L.P.., a Delaware limited partnership, Continental
Transit Corporation, an Indiana corporation, Wabash National Services, L.P., a Delaware limited
partnership, and Cloud Oak Flooring Company, Inc., an Arkansas corporation (each “Guarantor” and
collectively, “Guarantors”), hereby (i) acknowledge receipt of a copy of the foregoing Amendment
No. 1 to Second Amended and Restated Loan and Security Agreement (the “Amendment”); (ii)
affirm that nothing contained in the Amendment shall modify in any respect whatsoever the
obligations of any Guarantor under any Loan Document to which such Guarantor is a party; and (iii)
reaffirm that such Loan Documents and all obligations of the Guarantors thereunder shall continue
to remain in full force and effect.




 









 





          IN WITNESS WHEREOF, Guarantors have executed this Reaffirmation on and as of the date of the
Amendment.




	 	 	 	 	 	 	 
	 	 	WABASH NATIONAL TRAILER CENTERS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert J. Smith
 

Robert J. Smith
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	NATIONAL TRAILER FUNDING, L.L.C.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Wabash National Trailer Centers, Inc.,

its Sole Member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert J. Smith
 

Robert J. Smith
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	WABASH NATIONAL LEASE RECEIVABLES, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Wabash National Corporation,

its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert J. Smith
 

Robert J. Smith
	 	 
	 

	 	Title:
	 	Senior Vice President and

Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	CLOUD OAK FLOORING COMPANY, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert J. Smith
 

Robert J. Smith
	 	 
	 

	 	Title:
	 	Vice President	 	 





Reaffirmation to Amendment No. 1 to Second Amended and Restated Loan and Security Agreement

 









 






	 	 	 	 	 	 	 
	 	 	CONTINENTAL TRANSIT CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert J. Smith
 

Robert J. Smith
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	WABASH NATIONAL SERVICES, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Wabash National Trailer Centers, Inc.,

its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert J. Smith
 

Robert J. Smith
	 	 
	 

	 	Title:
	 	Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	WABASH FINANCING, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Wabash National Corporation,

its Sole Member	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Robert J. Smith
 

Robert J. Smith
	 	 
	 

	 	Title:
	 	Senior Vice President and

Chief Financial Officer	 	 





Reaffirmation to Amendment No. 1 to Second Amended and Restated Loan and Security Agreement