Trailer Investments, LLC
Trailer
Investments, LLC
May 24,
2010
Wabash
National Corporation
0000
Xxxxxxxx Xxxxxxx Xxxxx
Lafayette,
Indiana 47905
Attention:
Chief Financial Officer
Ladies
and Gentlemen:
Reference
is made to that certain Investor Rights Agreement, dated as of August 3, 2009
(the “Investor Rights
Agreement”), by and between Wabash National Corporation (the “Company”) and Trailer
Investments, LLC (“Trailer”), the
Certificate of Designations, Preferences and Rights of Series E Redeemable
Preferred Stock of the Company (the “Series E Certificate of
Designations”), the Certificate of Designations, Preferences and Rights
of Series F Redeemable Preferred Stock of the Company (the “Series F Certificate of
Designations”), the Certificate of Designations, Preferences and Rights
of Series G Redeemable Preferred Stock of the Company (the “Series G Certificate of
Designations” and, together with the Series E Certificate of Designations
and the Series F Certificate of Designations, the “Certificates of
Designations”) and the Warrant dated as of August 3, 2009 issued to
Trailer (the “Warrant”). This
Consent and Waiver (this “Consent”) is being
entered into as of the date hereof upon the terms set forth below between
Trailer (in its capacity as the Majority Trailer Investor (as such term is
defined in the Investor Rights Agreement and as it is separately defined in the
Certificates of Designations) and the Warrantholder (as such term is defined in
the Warrant)) and the Company. Capitalized terms that are not defined
herein have the meanings assigned to such terms in the Investor Rights
Agreement.
The
undersigned, as the Majority Trailer Investor, hereby consents:
(A)
pursuant to Section 5.1(a)(ii) of the Investor Rights Agreement and Section
7(b)(i)(B) of each of the Certificates of Designations, to (i) the Company’s
entry into the Underwriting Agreement, dated the date hereof in substantially
the form attached hereto as Exhibit A (the “Underwriting
Agreement”), by and among the Company, Trailer and Xxxxxx Xxxxxxx &
Co. Incorporated (acting severally on behalf of itself and as manager of the
several underwriters named in Schedule II thereto), relating, among other
things, to the issuance and sale of 11,750,000 (Eleven Million
Seven Hundred Fifty Thousand) shares of common stock, par value $0.01 per share
of the Company at $6.50 per share (the “Company Shares”), and
(ii) the Company’s issuance and sale of the Company Shares pursuant to and in
accordance with the terms of the Underwriting Agreement; and.
(B)
pursuant to Section 5.1(a)(i) of the Investor Rights Agreement and Section
7(b)(i)(A) of each of the Certificates of Designations, to the redemption in
full of all of the outstanding shares of Series E Preferred, Series F Preferred
and Series G Preferred for an aggregate payment equal to $47,791,238 (Forty
Seven Million Seven Hundred Ninety One Thousand Two Hundred and Thirty Eight
dollars) (assuming payment in full by 10 a.m. New York City time on May 28,
2010) (the “Redemption”) from the
proceeds of the offering referred to in clause (A) above.
The
Company agrees to use the proceeds from the sale and issuance of the Company
Shares (to the extent required) to consummate the Redemption.
Immediately
prior to the purchase and sale of the Firm Shares (as defined in the
Underwriting Agreement), the undersigned intends to exercise a portion of the
Warrant in that amount necessary to be able to transfer and sell its portion of
the Firm Shares and the Company will issue any Warrant Shares issuable in
connection with such exercise in book entry form if requested in writing by the
undersigned.
Subject
to the consummation of the sale of the Firm Shares to the Underwriters (as
defined in the Underwriting Agreement):
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(A)
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Trailer
permanently waives any right to adjustment to the number of Warrant Shares
pursuant to Section 9(e) of the
Warrant;
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|
(B)
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Notwithstanding
the terms of Section 9(a)(i) of the Warrant, the increase in the number of
Warrant Shares pursuant to Section 9(a)(i) of the Warrant as a result of
the issuance of the Company Shares shall be deemed to be 750,000 (Seven
Hundred and Fifty Thousand); provided, that the adjustment set forth in
this clause (B) shall apply only in connection with the Company’s issuance
and sale of the Company Shares (pursuant to and in accordance with the
terms of the Underwriting Agreement) and the terms of the Warrant shall
apply for any other issuance or sale by the Company;
and
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(C)
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The
Company shall issue a replacement warrant to Trailer in substantially the
form attached hereto as Exhibit
B.
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This
Consent shall be effective only upon:
(i) the
execution and delivery of this Consent by Trailer and the Company;
and
(ii) the
simultaneous execution and delivery of the Underwriting Agreement by all parties
thereto.
Notwithstanding
anything to the contrary herein, this Consent (other than solely with respect to
the undersigned’s consent to the Company’s executing and delivering the
Underwriting Agreement) shall automatically be revoked and shall have no force
or effect if the sale of the Firm Shares to the Underwriters shall not have
occurred within 15 business days after the date hereof or upon the earlier
termination of the Underwriting Agreement. This Consent by Trailer is
limited to the matters expressly set forth herein and does not include any
consent to any other actions taken, or that may be taken, by the Company, and
Trailer reserves all rights of approval and consent it may have under the
Investor Rights Agreement, each of the Certificates of Designations and the
Warrant with respect to such other actions.
[SIGNATURE
PAGE FOLLOWS]
TRAILER
INVESTMENTS, LLC
By: /s/ Xxxxx X.X.
Xxxxxxxxx
Name:
Xxxxx X.X. Xxxxxxxxx
Title:
Vice President and Secretary
AGREED
AND ACKNOWLEDGED:
WABASH
NATIONAL CORPORATION
By: /s/ Xxxxxxx X.
Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxx
Title:
President and Chief Executive Officer
Signature
Page to Consent of Majority Trailer Investors
