Unassociated Document


    EXHIBIT 10.1

     

    CONSENT
AND AMENDMENT NO. 1

    TO
THIRD AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT

     

    THIS
CONSENT AND AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT ("Amendment") is dated as of May 19, 2010 and is by and among the
parties identified as Lenders on the signature pages hereto ("Lenders") and Bank
of America, N.A., as Agent ("Agent"), for Lenders, on the one hand, and Wabash
National Corporation, a Delaware corporation, Wabash National, L.P., a Delaware
limited partnership, Wabash Wood Products, Inc. (f/k/a 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.

     

    WITNESSETH:

     

    WHEREAS,
Agent, Lenders and Borrowers are parties to a Third Amended and Restated Loan
and Security Agreement, dated as of July 17, 2009 (as the same has been and may
be amended, or modified from time to time, the "Loan Agreement"), pursuant to
which Lenders have agreed to make certain loans and other financial
accommodations to or for the account of Borrowers;

     

    WHEREAS,
Borrowers have informed Agent and each Lender that on or before May 31, 2010,
(a) Wabash desires to issue new shares of common stock for cash consideration of
at least $75,000,000, pursuant to the terms set forth in the Form S-3 filed on
April 30, 2010 by Wabash with the Securities and Exchange Commission, as amended
or supplemented from time to time and (b) Wabash desires to redeem all of
the Series E-G  Preferred Stock (including
payment of accrued dividends and early redemption premium payable pursuant to
the Preferred Investment Documents (but with respect to the early redemption
premium as if the redemption occurred between the first and second anniversary
of the issuance of the Series E-G Preferred Stock)) in an amount not to exceed
$48,000,000 payable with the proceeds of the equity issuance set forth in clause
(a) above and to file certificates of termination terminating the Series E-G
Preferred Stock (collectively, the "Recapitalization
Transactions");

     

    WHEREAS,
in absence of the prior written consent of Agent and Lenders, the
Recapitalization Transactions would cause certain Events of Default under
Section 10.1.3 of the Loan Agreement due to certain violations of Sections
3.3.4, 8.2.7 and 8.2.15 of the Loan Agreement;

     

    WHEREAS,
Borrowers have requested that Agent and Lenders (i) consent to the
Recapitalization Transactions and (ii) amend the Loan Agreement in certain
respects; and


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    WHEREAS,
Agent and Lenders have agreed to (i) consent to the Recapitalization
Transactions and (ii) amend the Loan Agreement in certain respects 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.         
  Consent.  Subject
to the satisfaction of the conditions set forth in Section 4 below, and in
reliance on the representations set forth in Section 5 below, Agent and Lenders
hereby consent to the Recapitalization Transactions; provided that no less than
$23,000,000 (plus an amount equal to the net cash proceeds in excess of
$75,000,000 received by Borrowers in connection the equity issuance contemplated
by the Recapitalization Transactions) of the cash proceeds obtained by Wabash in
connection with the consummation of the Recapitalization Transactions shall be
used to repay outstanding principal of the Revolving Credit Loans (but shall not
permanently reduce the Revolving Loan Commitments).  The foregoing is
a limited consent and, other than as expressly set forth herein, shall not
constitute a consent or waiver of any other Event of Default or Default that is
now in existence or that may hereafter occur, or any rights or remedies that may
be available to Agent or Lenders under the Loan Agreement, the other Loan
Documents or applicable law with respect thereto, all of which rights and
remedies are hereby specifically reserved.

     

    2.           
Amendments.  Subject
to the satisfaction of the conditions set forth in Section 4 below, and in
reliance upon the representations and warranties set forth in Section 5 below,
the Loan Agreement is hereby amended as follows:

     

    (a)      
    Section 2.10 of the Loan Agreement is hereby amended by
amending and restating the third sentence of such section, as
follows:

     

    At
Borrowers' joint and several expense, as requested by Agent or Majority Lenders
in their reasonable credit judgment, Agent shall (a) obtain one (1) desk
top appraisal of the Inventory and the Trailer Inventory of the Companies
conducted by a third party appraiser reasonably acceptable to Agent in any
calendar year, which appraisals shall include an assessment of the net orderly
liquidation percentage of each category or type of Inventory and Trailer
Inventory, (b) obtain one (1) appraisal of the Inventory and the Trailer
Inventory of the Companies from a third party appraiser reasonably acceptable to
Agent in any calendar year, which appraisals shall include an assessment of the
net orderly liquidation percentage of each category or type of Inventory and
Trailer Inventory and (c) obtain one (1) appraisal of the fixed assets of the
Companies from a third party appraiser reasonably acceptable to Agent in any
calendar year; provided that if an Event of Default has occurred and is
continuing, Agent may obtain such additional appraisals and appraisals in its
reasonable discretion.


    
      
         


      

      
        -2-

        
          

        

      

      
         


      

    

     

    (b)    
     Section 3.3.1 of the Loan Agreement is hereby
amended by amending and restating the final sentence of such section, as
follows:

     

    In
addition, if the Collateral subject to such sale, loss, damage, destruction or
condemnation consists of (a) Eligible Accounts, Eligible Inventory or
Eligible Trailer Inventory, at all times such prepayment shall be specifically
applied against any limits or sublimits contained in the Borrowing Base that are
predicated on such Collateral and (b) Real Property, Equipment or other
fixed assets, such proceeds that (i) exceed $1,000,000 in the aggregate in
any calendar year shall reduce dollar for dollar the amount of the Maximum Fixed
Asset Amount in an amount equal to such excess or (ii) total at least
$500,000 with respect to any individual sale, loss, damage, destruction or
condemnation shall reduce dollar for dollar the Maximum Fixed Asset Amount in an
amount equal to such sale, loss, damage, destruction or condemnation; provided,
however, that notwithstanding anything to the contrary set forth herein no
reduction in the amount of the Maximum Fixed Asset Amount shall occur in
connection with the sale of Real Property located at 3379 Owingsville Road, Mt.
Sterling, KY.

     

    (c)       
   Section 8.2.7 of the Loan Agreement is hereby amended by
deleting clauses (vi) through (vii) thereof.

     

    (d)       
  A new Section 8.3 is hereby added to the Loan Agreement as
follows:

     

    8.3           Specific
Financial Covenants.

     

    During
the Term, and thereafter for so long as there are any Obligations outstanding,
each Borrower covenants that it shall comply with all of the financial covenants
set forth in Exhibit 8.3 hereto.  If GAAP changes from the basis
used in preparing the audited financial statements delivered to Agent by
Borrowers on or before any applicable testing date, Borrowers will provide Agent
with certificates demonstrating compliance with such financial covenants and
will include, at the election of Borrowers or upon the request of Agent,
calculations setting forth the adjustments necessary to demonstrate how
Borrowers are also in compliance with such financial covenants based upon GAAP
as in effect prior to such change in GAAP.  At any time that Borrowers
are subject to the financial covenants set forth in Exhibit 8.3 hereto, no
Borrower shall (a) adjust deductions from EBITDA from any period subject to such
financial covenants to any period not subject to such financial covenants or (b)
adjust additions to EBITDA from any period not subject to such financial
covenants to any period subject to such financial covenants.


    
      
         


      

      
        -3-

        
          

        

      

      
         


      

    


    (e)          A
new Section 9.2.3 is hereby added to the Loan Agreement as follows:

     

    9.2.3       Financial
Covenants.  With respect to any request for any Loan, any
Letter of Credit or any LC Guaranty that would cause Availability to be or
remain less than the Availability thresholds set forth on Exhibit 8.3, Borrowers
shall be in compliance with each of the financial covenants set forth on Exhibit
8.3 as of the last day of the most recent calendar month for which financial
statements have been delivered to Agent pursuant to paragraph (ii) of subsection
8.1.3.

     

    (f)        
   Section 12.8 of the Loan Agreement is hereby amended by
deleting "Hogan & Hartson LLP" through "Facsimile No.: (410) 539-6981" and
inserting in lieu thereof the following:

     

    Hogan
Lovells US LLP

    100
International Drive, Suite 2000

    Baltimore,
Maryland 21202

    Attention:  Michael
J. Silver, Esq.

    Facsimile
No.:  (410) 659-2701

     

    (g)      
  Appendix A to the Loan Agreement is hereby amended by amending the
definition of "Permitted Acquisition" therein by (i) deleting the reference to
"and" at the end of clause (h) of such definition, (ii) deleting "." at the end
of clause (i) of such definition and inserting "; and" in lieu thereof and (iii)
adding the following new clause (j) to such definition, as follows:

     

    (j)           after
giving effect to the proposed acquisition, Borrowers are in compliance with each
of the financial covenants set forth in Section 8.3
on a pro forma, but unadjusted, basis through the termination of the
Agreement.

     

    (h)     
   Appendix A to the Loan Agreement is hereby amended by amending
and restating the following definitions therein:

     

    Borrowing
Base - as at any date of determination thereof, an amount equal to the
lesser of:

     

    (i)      the
Revolving Credit Maximum Amount; or

     

    (ii)     an
amount equal to the sum of

     

    
      	
               
      

            	
              (a)

            	
              85% of the net amount of Eligible Accounts
      outstanding at such date; plus

            


    

     

    
      	
               
      

            	
              (b)

            	
              the least of (i) 85% of the net orderly
      liquidation percentage of Eligible Inventory at such date and
      (ii) the sum of (A) 85% of the net orderly liquidation value of
      Eligible Trailer Inventory at such date, plus
      (B) 70% of the value of Eligible Inventory consisting of raw
      materials or parts at such date, plus
      (C) 50% of the value of Eligible Inventory consisting of
      work-in-process at such date; plus

            


    


    
      
         


      

      
        -4-

        
          

        

      

      
         


      

    

     

    
      	
               
      

            	
              (c)

            	
              the
      Maximum Fixed Asset Amount.

            


    

     

    For
purposes hereof, (1) the net amount of Eligible Accounts at any time shall
be the face amount of such Eligible Accounts less any and all returns, rebates,
discounts (which may, at Agent's option, be calculated on shortest terms),
credits, allowances or excise taxes of any nature at any time issued, owing,
claimed by Account Debtors, granted, outstanding or payable in connection with
such Accounts at such time, (2) the amount of Eligible Inventory and
Eligible Trailer Inventory shall each be determined on a first-in, first-out,
lower of cost or market basis in accordance with GAAP, net of intercompany
charges, (3) the net orderly liquidation percentage of Eligible Inventory
shall be determined by a third party appraiser reasonably acceptable to Agent
and shall be as reflected in the most recent appraisal delivered to Agent under
the Agreement, and (4) the net orderly liquidation value of Eligible
Trailer Inventory shall be determined by a third party appraiser reasonably
acceptable to Agent and shall be reflected in the most recent appraisal
delivered to Agent under the Agreement.

     

    Maximum
Fixed Asset Amount – means an amount equal to $17,800,000, which number
shall be reduced (i) by $400,000 on each of July 1, 2010 and
October 1, 2010, (ii) by $750,000 on each of January 1, 2011,
April 1, 2011, July 1, 2011 and October 1, 2011 and (iii) by
$1,000,000 on each of January 1, 2012, April 1, 2012 and July 1,
2012.

     

    Preferred
Investment Documents – means collectively, (i) the Securities
Purchase Agreement dated as of the date hereof by and between Wabash and
Lincolnshire as may be amended from time to time; (ii) the Investor Rights
Agreement dated as of the Closing Date by and between Wabash and Lincolnshire as
may be amended from time to time; and (iii) the Warrant to Purchase Shares
of Common Stock dated as of the Closing Date by and between Wabash and
Lincolnshire as may be amended from time to time and as may be transferred in
whole or in part from time to time in accordance with its
terms.

     

    (i)           Appendix
A to the Loan Agreement is hereby amended by deleting the definition of "Series
E-G Preferred Stock" in its entirety.

     

    (j)           Exhibit
8.1.3 to the Loan Agreement is hereby amended and restated in their entirety as
set forth on Exhibit 8.1.3 hereof.

     

    (k)       
  A new Exhibit 8.3 is hereby added to the Loan Agreement as set forth
on Exhibit 8.3 hereof.

     

    3.           Scope of
Amendment.  Subject to the satisfaction of the conditions set
forth in Section 4 below and in reliance upon the representations and warranties
of Borrowers set forth in Section 5 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.

     

    
      
        
        

      

      
        -5-

        
          

        

      

      
        
        

      

    

     

    4.        
   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 Lenders, together with the Consent and Reaffirmation
attached hereto;

     

    (b)     
    Agent shall have received for the pro rata benefit of
each Lender party hereto, an amendment fee in the aggregate amount of $250,000;
and

     

    (c)     
    No Default or Event of Default shall be in existence
(after giving effect to this Amendment).

     

    5.           Representations
and Warranties.  To induce Agent and Lenders to execute and
deliver this Amendment, Borrowers hereby represent and warrant to Agent and
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 (or true and correct in all respects with respect to representation and
warranties expressly qualified by materiality or Material Adverse Effect) 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 (after giving effect to this Amendment);

     

    (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; and

     

    (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.

     

    6.           Release.  As
a material part of the consideration for Agent and Lenders entering into this
Amendment and in order to induce Lenders to extend credit pursuant to the Loan
Agreement, on the date hereof each Borrower and each Guarantor executing a
Consent and Reaffirmation attached hereto,  hereby releases and
forever discharges Agent and each Lender and Agent's and each Lender's
directors, officers, employees, agents, attorneys, affiliates, subsidiaries,
successors and assigns from any and all liabilities, obligations, actions,
contracts, claims, causes of action, damages, demands, costs and expenses
whatsoever (collectively "Claims"), of every kind and nature, however evidenced
or created, whether known or unknown, arising prior to or on the date of this
Amendment including, but not limited to, any Claims involving the extension of
credit under the Loan Agreement or administration of the Loan Documents, as each
may be amended, the indebtedness incurred by any Borrower or any Guarantor or
any other transactions evidenced by this Amendment, the Loan Agreement or the
other Loan Documents.


    
      
         


      

      
        -6-

        
          

        

      

      
         


      

    


    7.          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.

     

    8.        
   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.

     

    9.           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 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]


    
      
         


      

      
        -7-

        
          

        

      

      
         


      

    


    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.

     

    
      
        	
                BANK OF
      AMERICA, N.A.,

              
	
                as
      Agent and as a Lender

              
	 
      
	
                By:

              	
                /s/Jason
      Riley

              
	
                Name: 

              	
                Jason
      Riley

              
	
                Title:

              	
                Senior
      Vice President

              


      

    

     

    
      Signature
Page to Consent and Amendment No. 1 to Third Amended and Restated Loan and
Security Agreement

    


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    
      
        	
                FIFTH
      THIRD BANK

              
	
                as
      a Lender

              
	 
      
	
                By:

              	
                /s/David
      O’Neal

              
	
                Name: 

              	
                David
      O’Neal

              
	
                Title:

              	
                Vice
      President

              


      

    

     

    
      Signature
Page to Consent and Amendment No. 1 to Third Amended and Restated Loan and
Security Agreement

    


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    
      
        	
                WELLS
      FARGO CAPITAL FINANCE, LLC

              
	
                (f/k/a Wells
      Fargo Foothill, LLC) as
Syndication

              
	
                Agent
      and as a Lender

              
	 
      
	
                By:

              	
                /s/Krista
      Wade

              
	
                Name: 

              	
                Krista
      Wade

              
	
                Title

              	
                Vice
      President

              


      

    

     

    
      Signature
Page to Consent and Amendment No. 1 to Third Amended and Restated Loan and
Security Agreement

    


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    
      
        	
                JPMORGAN
      CHASE BANK, N.A.,

              
	
                as
      Documentation Agent and as a Lender

              
	 
      
	
                By:

              	
                /s/ Michael P.
      Gutia

              
	
                Name: 

              	
                Michael
      P. Gutia

              
	
                Title:

              	
                Vice
      President

              


      

    

     

    
      Signature
Page to Consent and Amendment No. 1 to Third Amended and Restated Loan and
Security Agreement

    


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    
      
        	
                GENERAL
      ELECTRIC CAPITAL

              
	
                CORPORATION,
      as a Lender

              
	 
      
	
                By:

              	
                /s/ Rebecca L.
      Milligan

              
	
                Name: 

              	
                Rebecca
      L. Milligan

              
	
                Title:

              	
                Duly
      Authorized Signatory

              


      

    

     

    
      Signature
Page to Consent and Amendment No. 1 to Third Amended and Restated Loan and
Security Agreement

    


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    
      
        	
                PNC BANK,
      National Association, including as

              
	
                successor
      to National City Business Credit, Inc., as a

              
	
                Lender

              
	 
      
	
                By:

              	
                /s/Todd W.
      Milenius

              
	
                Name: 

              	
                Todd
      W. Milenius

              
	
                Title:

              	
                Vice
      President

              


      

    

     

    
      Signature
Page to Consent and Amendment No. 1 to Third Amended and Restated Loan and
Security Agreement

    


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    
      
        	
                WABASH
      NATIONAL CORPORATION, as a

                Borrower

              
	 
      
	
                By:

              	
                /s/ Mark J.
      Weber

              
	
                Name:  

              	
                Mark
      J. Weber

              
	
                Title:

              	
                Senior
      Vice President – CFO,
Treasurer

              


      

    

     

    
      
        
          	
                  WABASH
      NATIONAL, L.P., as a Borrower

                
	 
      
	
                  By:

                	
                  Wabash
      National Trailer Centers, Inc.,

                
	 
      	
                  its
      General Partner

                
	 
      	 
      
	
                  By:

                	
                  /s/ Mark J.
      Weber

                
	
                  Name:  

                	
                  Mark
      J. Weber

                
	
                  Title:

                	
                  Vice
      President, Treasurer, Controller

                
	 
      	 
      
	
                  WABASH
      WOOD PRODUCTS, INC. (f/k/a

                
	
                  WNC Cloud
      Merger Sub, Inc.), as a Borrower

                
	 
      
	
                  By:

                	
                  /s/ Mark J.
      Weber

                
	
                  Name:

                	
                  Mark
      J. Weber

                
	
                  Title:

                	
                  Vice
      President, Treasurer

                
	 
      	 
      
	
                  FTSI
      DISTRIBUTION COMPANY, L.P., as a

                
	
                  Borrower

                
	 
      
	
                  By:

                	
                  Wabash
      National Trailer Centers Inc.,

                
	 
      	
                  its
      General Partner

                
	 	 
	
                  By:

                	
                  /s/ Mark J.
      Weber

                
	
                  Name:

                	
                  Mark
      J. Weber

                
	
                  Title:

                	
                  Vice
      President, Treasurer, Controller

                
	 
      
	
                  TRANSCRAFT
      CORPORATION, as a Borrower

                
	 
      
	
                  By:

                	
                  /s/ Mark J.
      Weber

                
	
                  Name:

                	
                  Mark
      J. Weber

                
	
                  Title:

                	
                  Vice
      President, Treasurer

                


        

      

    

     

    
      Signature
Page to Consent and Amendment No. 1 to Third Amended and Restated Loan and
Security Agreement

    


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

     

    EXHIBIT
8.1.3

     

    COMPLIANCE
CERTIFICATE

     

    [_________________________]

     

    __________________,
___

     

    Bank
of America, N.A., as Agent

    One
South Wacker Drive

    Suite
3400

    Chicago,
Illinois  60606

     

    The
undersigned, the [Chief Financial
Officer/Treasurer/Assistant Treasurer] of Wabash National Corporation
("Wabash"), gives this certificate to Bank of America, N.A., in its capacity as
Agent ("Agent") in accordance with the requirements of subsection 8.1.3 of
that certain Third Amended and Restated Loan and Security Agreement dated July
17, 2009 among Wabash, as a Borrower, the Subsidiaries of Wabash party thereto
as Borrowers, Wells Fargo Foothill, LLC, individually as a Lender and as a
Syndication Agent for Lenders, JPMorgan Chase Bank, N.A., individually as a
Lender and as a Documentation Agent for Lenders, Agent and Lenders party thereto
("Loan Agreement").  Capitalized terms used in this Certificate,
unless otherwise defined herein, shall have the meanings ascribed to them in the
Loan Agreement.

     

    [1.
Based upon my review of the balance sheets and statements of income of Wabash
and its Subsidiaries for the [__________] period ending _______________, ____,
copies of which are attached hereto, I hereby certify that:

     

    (a)       EBITDA
as of the last day of the period is $__________;

     

    (b)       Capital
Expenditures during the period total $__________ in the
aggregate[.][;]

     

    [or]

     

    the
Fixed Charge Coverage Ratio as of the last day of the period is
_____:1.0.]

     

    [1/2].    No
Default exists on the date hereof, other than:
____________________________________ [if none, so
state]; and


    
      
         


      

      
        Exhibit
8.1.3 – Page 1

        
          

        

      

      
         


      

    

     

    [2/3].    No
Event of Default exists on the date hereof, other than
______________________________ [if none, so
state].

     

    Very
truly yours,

     

    _______________________________

    [Chief Financial
Officer/Treasurer/Assistant Treasurer]


    
      
         


      

      
        Exhibit
8.1.3 – Page 2

        
          

        

      

      
         


      

    

     

    EXHIBIT
8.3

     

    FINANCIAL
COVENANTS

     

    DEFINITIONS

     

    EBITDA
– with respect to any period, the sum of net earnings (or loss) before Interest
Expense, income taxes, depreciation, amortization and other non-cash charges
(including, but not limited to (i) gains and losses from currency
fluctuations, (ii) impairment charges relating to fixed assets or
intangibles, (iii) expenses relating to stock options, restricted stock
grants and stock derivatives issued to employees and directors of Wabash and its
Subsidiaries for such period, (iv) expenses relating to the transactions
contemplated by Consent and Amendment No. 1 to Third Amended and Restated Loan
and Security Agreement dated May 19, 2010 by and among Borrowers, Agent and the
parties identified as Lenders on the signature pages thereto (as amended,
supplemented or otherwise modified from time to time) and (v) losses with
respect to the Warrant described in clause (iii) of the definition of Permitted
Investment Documents, but excluding any extraordinary gains for such period),
all as determined for Wabash and its Subsidiaries on a Consolidated basis and in
accordance with GAAP.

     

    Fixed
Charge Coverage Ratio – with respect to any period, the ratio of
(i) EBITDA for such period minus
the sum of (a) any provision for (plus any benefit from) income taxes
included in the determination of net earnings (or loss) for such period plus
(b) non-financed Capital Expenditures during such period to (ii) Fixed
Charges for such period, all as determined for Wabash and its Subsidiaries on a
Consolidated basis and in accordance with GAAP.

     

    Fixed
Charges – with respect to any period, the sum
of:  (i) scheduled principal payments required to be made during
such period in respect to Indebtedness for Money Borrowed (including the
principal portion of Capitalized Lease Obligations), plus (ii) Interest
Expense for such period, plus (iii) scheduled reductions in the Maximum Fixed
Asset Amount pursuant to the definition thereof, all as determined for Wabash
and its Subsidiaries on a Consolidated basis and in accordance with
GAAP.

     

    Interest
Expense - with respect to any period, cash interest expense paid or
accrued for such period, including without limitation the interest portion of
Capitalized Lease Obligations, plus the Letter of Credit and LC Guaranty fees
owing for such period, all as determined for Wabash and its Subsidiaries on a
Consolidated basis and in accordance with GAAP.


    
      
         


      

      
        Exhibit 8.3 – Page 1

        
          

        

      

      
         


      

    

     

    COVENANTS

     

    If
Availability is less than $15,000,000 at any time before the earlier of
(a) August 14, 2011 or (b) the date that monthly financial statements
are delivered pursuant to Section 8.1.3(ii) for the month ending June 30, 2011,
then:

     

    Minimum
EBITDA.  Borrowers
shall not permit EBITDA for any period set forth below to be less than the
applicable amount set forth below for such period:

     

    
      
        
          
            	
                    Computation Period

                  	 	
                    Minimum EBITDA

                  	 
	 
      	 	 	 
	
                    April
      1, 2010 through April 30, 2010

                  	 	$	-2,000,000	 
	 
      	 	 	 	 
	
                    April
      1, 2010 through May 31, 2010

                  	 	$	-3,000,000	 
	 
      	 	 	 	 
	
                    April
      1, 2010 through June 30, 2010

                  	 	$	-3,000,000	 
	 
      	 	 	 	 
	
                    April
      1, 2010 through July 31, 2010

                  	 	$	-3,500,000	 
	 
      	 	 	 	 
	
                    April
      1, 2010 through August 31, 2010

                  	 	$	-3,000,000	 
	 
      	 	 	 	 
	
                    April
      1, 2010 through September 30, 2010

                  	 	$	-2,500,000	 
	 
      	 	 	 	 
	
                    April
      1, 2010 through October 31, 2010

                  	 	$	-2,000,000	 
	 
      	 	 	 	 
	
                    April
      1, 2010 through November 30, 2010

                  	 	$	-1,500,000	 
	 
      	 	 	 	 
	
                    April
      1, 2010 through December 31, 2010

                  	 	$	-1,000,000	 
	 
      	 	 	 	 
	
                    April
      1, 2010 through January 31, 2011

                  	 	$	-500,000	 
	 
      	 	 	 	 
	
                    April
      1, 2010 through February 28, 2011

                  	 	$	0.00	 
	 
      	 	 	 	 
	
                    April
      1, 2010 through March 31, 2011

                  	 	$	500,000	 
	 
      	 	 	 	 
	
                    Twelve
      month period ending April 30, 2011

                  	 	$	1,500,000	 
	 
      	 	 	 	 
	
                    Twelve
      month period ending May 31, 2011 and each twelve month period thereafter
      ending on the final day of each calendar month

                  	 	$	2,500,000	 


          

        

      

    


    
      
         


      

      
        Exhibit 8.3 – Page 2

        
          

        

      

      
         


      

    

     

    Maximum
Capital Expenditures.  Borrowers
shall not permit the aggregate amount of all Capital Expenditures of Wabash and
its Subsidiaries for any period set forth below to exceed the applicable amount
set forth below for such period:

     

    
      
        
          
            
              	
                      Computation Period

                    	 	
                      Maximum Capital

                      Expenditures

                    	 
	 
      	 	 	 
	
                      April
      1, 2010 through April 30, 2010

                    	 	$	1,000,000	 
	 
      	 	 	 	 
	
                      April
      1, 2010 through May 31, 2010

                    	 	$	1,250,000	 
	 
      	 	 	 	 
	
                      April
      1, 2010 through June 30, 2010

                    	 	$	1,500,000	 
	 
      	 	 	 	 
	
                      April
      1, 2010 through July 31, 2010

                    	 	$	1,750,000	 
	 
      	 	 	 	 
	
                      April
      1, 2010 through August 31, 2010

                    	 	$	2,000,000	 
	 
      	 	 	 	 
	
                      April
      1, 2010 through September 30, 2010

                    	 	$	2,250,000	 
	 
      	 	 	 	 
	
                      April
      1, 2010 through October 31, 2010

                    	 	$	2,500,000	 
	 
      	 	 	 	 
	
                      April
      1, 2010 through November 30, 2010

                    	 	$	2,750,000	 
	 
      	 	 	 	 
	
                      April
      1, 2010 through December 31, 2010

                    	 	$	3,000,000	 
	 
      	 	 	 	 
	
                      April
      1, 2010 through January 31, 2011

                    	 	$	3,300,000	 
	 
      	 	 	 	 
	
                      April
      1, 2010 through February 28, 2011

                    	 	$	3,500,000	 
	 
      	 	 	 	 
	
                      April
      1, 2010 through March 31, 2011

                    	 	$	3,800,000	 
	 
      	 	 	 	 
	
                      12
      month period ending April 30, 2011

                    	 	$	4,000,000	 
	 
      	 	 	 	 
	
                      12
      month period ending May 31, 2011 and each twelve month period thereafter
      ending on the last day of each calendar month

                    	 	$	4,000,000	 


            

          

        

      

    

     

    If
Availability is less than $20,000,000, on or after the earlier of (i) August 14,
2011 or (ii) the date that monthly financial statements are delivered pursuant
to Section 8.1.3(ii) for the month ending June 30, 2011, then:

     

    Fixed
Charge Coverage Ratio.  Borrowers shall not permit the Fixed
Charge Coverage Ratio for the 12 month period ending on the last day of the
calendar month that ended most recently prior to such time, to be less than 1.10
to 1.0.


    
      
         


      

      
        Exhibit 8.3 – Page 3

        
          

        

      

      
         


      

    


    CONSENT
AND REAFFIRMATION

     

    Each
of the undersigned (each a "Loan Guarantor"), hereby (i) acknowledges
receipt of a copy of the foregoing Consent and Amendment No. 1 to Third Amended
and Restated Loan and Security Agreement (the "Amendment"); (ii) consents
to each Borrower's execution and delivery of the Amendment; (iii) agrees to
be bound by the Amendment (including without limitation Section 6 thereof); and
(iv) reaffirms that the Loan Documents to which it is a party (and its
obligations thereunder) shall continue to remain in full force and
effect.  Although each Loan Guarantor has been informed of the matters
set forth herein and have acknowledged and agreed to same, each Loan Guarantor
understands that Agent and Lenders have no obligation to inform any Loan
Guarantor of such matters in the future or to seek any Loan Guarantor's
acknowledgment or agreement to future amendments, waivers or consents, and
nothing herein shall create such a duty.

     

    This
Consent and Reaffirmation shall be a contract made under and governed by the
laws of the State of Illinois, without regard to conflict of laws principles
that would require the application of laws other than those of the State of
Illinois.

     

    IN
WITNESS WHEREOF, each Loan Guarantor has executed this Consent and Reaffirmation
on and as of the date of the Amendment.

     

    
      
        
          
            	
                    CONTINENTAL
      TRANSIT CORPORATION, as a

                  
	
                    Loan
      Guarantor

                  
	 
      
	
                    By:

                  	
                    /s/ Mark J.
      Weber

                  
	
                    Name:  

                  	
                    Mark
      J. Weber

                  
	
                    Title:

                  	
                    Treasurer

                  
	 
      	 
      
	
                    WABASH
      NATIONAL SERVICES, L.P., as a Loan

                  
	
                    Guarantor

                  
	 
      
	
                    By:  Wabash
      National Trailer Centers, Inc.,

                  
	
                     its
      General Partner

                  
	 
      	 
      
	
                    By:

                  	
                    /s/ Mark J.
      Weber

                  
	
                    Name:

                  	
                    Mark
      J. Weber

                  
	
                    Title:

                  	
                    Vice
      President, Treasurer,
Controller

                  


          

        

      

    

     

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

      

    


    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    
      
        
          
            
              
                	
                        WABASH
      NATIONAL TRAILER CENTERS,

                      
	
                        INC.,
      as a Loan Guarantor

                      
	 
      
	
                        By:

                      	
                        /s/ Mark J.
      Weber

                      
	
                        Name:  

                      	
                        Mark
      J. Weber

                      
	
                        Title:

                      	
                        Vice
      President, Treasurer, Controller

                      
	 
      
	
                        WABASH
      FINANCING LLC, as a Loan Guarantor

                      
	 
      
	
                        By:

                      	
                        /s/ Mark J.
      Weber

                      
	
                        Name:

                      	
                        Mark
      J. Weber

                      
	
                        Title:

                      	
                        Treasurer,
      Manager

                      
	 
      
	
                        NATIONAL
      TRAILER FUNDING, L.L.C., as a

                      
	
                        Loan
      Guarantor

                      
	 
      	 
      
	
                        By:  Wabash
      National Trailer Centers, Inc.,

                      
	
                         its
      Sole Member

                      
	 
      	 
      
	
                        By:

                      	
                        /s/ Mark J.
      Weber

                      
	
                        Name:

                      	
                        Mark
      J. Weber

                      
	
                        Title:

                      	
                        Vice
      President, Treasurer, Controller

                      
	 
      	 
      
	
                        WABASH
      NATIONAL MANUFACTURING, L.P.

                      
	
                        (f/k/a Wabash
      National Lease Receivables, L.P.),
  as

                      
	
                        a
      Loan Guarantor

                      
	 
      
	
                        By:  Wabash
      National Corporation,

                      
	
                         its
      General Partner

                      
	 
      	 
      
	
                        By:

                      	
                        /s/ Mark J.
      Weber

                      
	
                        Name:

                      	
                        Mark
      J. Weber

                      
	
                        Title:

                      	
                        Senior
      Vice President - CFO, Treasurer

                      
	 
      	 
      
	
                        CLOUD OAK
      FLOORING COMPANY, INC., as a

                      
	
                        Loan
      Guarantor

                      
	 
      
	
                        By:

                      	
                        /s/ Mark J.
      Weber

                      
	
                        Name:

                      	
                        Mark
      J. Weber

                      
	
                        Title:

                      	
                        Vice
      President,
Treasurer

                      


              

            

          

        

      

    

     

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