Registration
No. 333-
(I.R.S. Employer
Identification Number)
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Michael
J. Silver
William I. Intner
Hogan Lovells US LLP
100 International Drive, Suite 2000
Baltimore, Maryland 21202
(410) 659-2700
If the only securities
being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box.
¨
If any of the securities
being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.
þ
If this Form is filed to
register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a registration
statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.
þ
If this Form is a post-effective
amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark
whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company.
See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company”
in Rule 12b-2 of the Exchange Act. (Check one):
DESCRIPTION OF DEBT SECURITIES
The following description
sets forth certain general provisions of the debt securities that may be offered by means of this prospectus. The particular terms
of the debt securities being offered and the extent to which the general provisions described below apply will be described in
a prospectus supplement relating to the debt securities.
Any senior debt securities
offered by means of this prospectus will be issued under a senior debt securities indenture dated as of April 23, 2012 between
Wabash and Wells Fargo Bank, National Association, as trustee, as amended or supplemented from time to time, which we refer to
as the “Senior Debt Securities Indenture.” Any subordinated debt securities offered by means of this prospectus will
be issued under a separate subordinated debt securities indenture, as amended or supplemented from time to time, which we refer
to as the “Subordinated Debt Securities Indenture,” between Wabash and such trustee as may be appointed by Wabash.
The Senior Debt Securities Indenture and the Subordinated Debt Securities Indenture are referred to in this prospectus individually
as the “Indenture” and collectively as the “Indentures.” The Indentures have been filed as exhibits to
the Registration Statement of which this prospectus is a part. The Indentures will be available for inspection at the corporate
trust office of the trustee or as described above under “Where to Find Additional Information.”
The Indentures are and
will be subject to and governed by the Trust Indenture Act of 1939. The description of the Indentures set forth below assumes that
Wabash has entered into both of the Indentures. Wabash has executed and delivered the Senior Debt Securities Indenture and will
execute and deliver the Subordinated Debt Securities Indentures when and if it issues debt securities thereunder. The statements
made in this prospectus relating to the Indentures and the debt securities to be issued under the Indentures are summaries of some
provisions of the Indentures and such debt securities. The summaries do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all provisions of the Indentures and such debt securities. Unless otherwise specified,
capitalized terms used but not defined in this prospectus have the meanings set forth in the Indentures.
General
The
debt securities offered by means of this prospectus will be direct obligations of Wabash. Senior debt securities will rank equally
in right of payment with other senior and unsubordinated debt of Wabash that may be outstanding from time to time, and will rank
senior in right of payment to all subordinated debt securities of Wabash that may be outstanding from time to time. Subordinated
debt securities will be subordinated in right of payment to the prior payment in full of the senior debt of Wabash, as described
under “Subordination” below.
Each Indenture provides
that debt securities may be issued without limit as to aggregate principal amount, in one or more series, in each case as established
from time to time in or pursuant to authority granted by one or more resolutions of the board of directors of Wabash or as established
in one or more indentures supplemental to the Indenture. All debt securities of one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of the holders of the debt securities of such series,
for issuances of additional debt securities of such series.
Each Indenture provides
that there may be more than one trustee thereunder, each with respect to one or more series of debt securities. Any trustee under
either Indenture may resign or be removed with respect to one or more series of debt securities, and a successor trustee will be
appointed by Wabash, by or pursuant to a resolution adopted by the board of directors, to act with respect to such series. If two
or more persons are acting as trustee with respect to different series of debt securities, each such trustee will be a trustee
of a trust under the applicable Indenture separate and apart from the trust administered by any other trustee thereunder, and,
except as otherwise indicated herein or therein, any action described to be taken by the trustee may be taken by each such trustee
with respect to, and only with respect to, the one or more series of debt securities for which it is trustee under the Indenture.
The supplement to this
prospectus relating to the series of debt securities being offered will contain information on the specific terms of such debt
securities, including:
(1) the title of such series
of debt securities;
(2) the classification
of such debt securities as senior debt securities or subordinated debt securities;
(3) the aggregate principal
amount of such debt securities and any limit on such aggregate principal amount;
(4) the percentage of the
principal amount of such debt securities that will be issued and, if other than the entire principal amount thereof, the portion
of the principal amount thereof payable upon declaration of acceleration of the maturity thereof or, if applicable, the portion
of the principal amount thereof that is convertible in accordance with the provisions of the applicable Indenture, or the method
by which such portion shall be determined;
(5) the terms and conditions,
if any, upon which such debt securities may be convertible into or exchangeable for other securities of Wabash or securities of
another person and the terms and conditions upon which such conversion or exchange will be effected, including, without limitation,
whether such debt securities are convertible into or exchangeable for common stock or other capital stock of Wabash or such other
person, the initial conversion price or rate (or manner of calculation thereof), the portion that is convertible or exchangeable
or the method by which any such portion shall be determined, the conversion period, provisions as to whether conversion or exchange
will be at the option of the holders, Wabash, or such other person the events requiring an adjustment of the conversion or exchange
price and provisions affecting conversion or exchange in the event of the redemption of such debt securities;
(6) the date or dates,
or the method for determining such date or dates, on which the principal of such debt securities will be payable;
(7) the rate or rates,
or the method by which such rate or rates shall be determined, at which such debt securities will bear interest, if any;
(8) the date or dates,
or the method for determining such date or dates, from which any such interest will accrue, the date or dates on which any such
interest will be payable, the regular record dates for the interest payment dates, or the method by which the regular record dates
are to be determined, the person to whom such interest will be payable, and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(9) the place or places
where the principal of (and premium, if any) and interest and any additional amounts related to specified taxes imposed on the
holders of such debt securities, or “Additional Amounts,” on such debt securities will be payable, where such debt
securities may be surrendered for conversion or registration of transfer or exchange, and where notices or demands to or upon Wabash
in respect of such debt securities and the applicable Indenture may be served;
(10) the date or dates
on which, or period or periods within which, the price or prices at which, the currency in which, and the other terms and conditions
upon which such debt securities may be redeemed, in whole or in part, at the option of Wabash, if Wabash is to have such an option;
(11) the obligation, if
any, of Wabash to redeem, repay or purchase such debt securities pursuant to any sinking fund or analogous provision or at the
option of a holder thereof, and the date or dates on which, or period or periods within which, the price or prices at which, the
currency or currencies in which, and the other terms and conditions upon which such debt securities will be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
(12) if other than U.S.
dollars, the foreign currency or currencies in which such debt securities are denominated and payable, which may be a foreign currency
or units of two or more foreign currencies or a composite currency or currencies, and the terms and conditions relating thereto;
(13) whether the amount
of payments of principal of (and premium, if any) or interest on such debt securities may be determined with reference to an index,
formula or other method (which index, formula or method may, but need not be, based on one or more currencies, commodities, equity
indices or other indices) and the manner in which such amounts shall be determined;
(14) whether such debt
securities will be secured or unsecured and if secured, the nature of the collateral securing the debt securities;
(15) whether such debt
securities will be issued in the form of one or more global securities and whether such global securities are to be issuable in
a temporary global form or permanent global form;
(16) any deletions from,
modifications of or addition to the events of default or covenants of Wabash with respect to such debt securities, whether or not
such events of default or covenants are consistent with the events of default or covenants set forth in the applicable Indenture;
(17) whether the principal
of (and premium, if any) or interest or Additional Amounts, if any, on such debt securities are to be payable, at the election
of Wabash or a holder, in one or more currencies other than that in which such debt securities are payable in the absence of the
making of such an election, the date or dates on which, or period or periods within which, and the terms and conditions upon which,
such election may be made, and the time and manner of, and identity of the exchange rate agent with responsibility for, determining
the exchange rate between the currency or currencies in which such debt securities are payable in the absence of the making of
such an election and the currency or currencies in which such debt securities are to be payable upon the making of such an election;
(18) whether such debt
securities will be issued in certificated or book-entry form and if in certificated form, the form and/or terms of the certificates
or other documents and the other conditions to be satisfied;
(19) whether such debt
securities will be in registered or bearer form, or both, the terms, if any, on which securities in registered form and in bearer
form may be exchanged for each other, and, if in registered form, the denominations thereof if other than $1,000 and any integral
multiple thereof and, if in bearer form, the denominations thereof if other than $5,000 and terms and conditions relating thereto;
(20) the applicability,
if any, of the defeasance and covenant defeasance provisions of the applicable Indenture, and any provisions in modification of,
in addition to or in lieu of such provisions;
(21) if such debt securities
are to be issued upon the exercise of warrants, the time, manner and place for such debt securities to be authenticated and delivered;
(22) whether and to what
extent such debt securities will be guaranteed by a guarantor and the identity of such guarantor;
(23) provisions, if any,
granting special rights to the holders of such debt securities upon the occurrence of such events as may be specified;
(24) whether and under
what circumstances Wabash will pay Additional Amounts as contemplated in the applicable Indenture on such debt securities to any
holder thereof who is not a U.S. person and, if so, whether Wabash will have the option to redeem such debt securities in lieu
of making such payment and the terms of any such option;
(25) the name of the applicable
trustee and the address of its corporate trust office and, if other than the trustee, the name of each security registrar and paying
agent;
(26) the date as of which
any debt securities in bearer form and any temporary global security shall be dated if other than the date of original issuance;
and
(27) any other terms of
such debt securities not inconsistent with the provisions of the applicable Indenture.
Debt securities offered
by means of this prospectus may be original issue discount securities, in that they provide for less than the entire principal
amount thereof to be payable upon declaration of acceleration of the maturity thereof. If they are original issue discount securities,
the special U.S. federal income tax, accounting and other considerations applicable to such securities will be described in the
applicable prospectus supplement.
Neither Indenture contains
any other provisions that would limit the ability of Wabash to incur indebtedness or that would afford holders of debt securities
protection in the event of a highly leveraged or similar transaction involving Wabash or in the event of a change of control of
Wabash.
The rights of Wabash and
its creditors, including holders of debt securities offered by means of this prospectus, to participate in the assets of Wabash’s
subsidiaries upon the liquidation or recapitalization of such subsidiaries or otherwise will be subject to the prior claims of
such subsidiaries’ respective secured and unsecured creditors (except to the extent that claims of Wabash itself as a creditor
may be recognized).
Denominations, Interest, Registration and Transfer
Unless
otherwise described in the applicable prospectus supplement, the debt securities of any series offered by means of this prospectus
in registered form will be issuable in denominations of $1,000 and integral multiples thereof and in bearer form will be issuable
in denominations of $5,000, except that securities issued in global form may be of any denomination.
Unless otherwise specified
in the applicable prospectus supplement, the principal of (and premium, if any) and interest and any Additional Amounts on any
series of debt securities offered by means of this prospectus will be payable at the office or agency designated by Wabash in accordance
with the Indenture. Unless otherwise specified in the applicable prospectus supplement, payment of interest on any such series
of debt securities to the holders thereof on any regular record date will be made (1) to each person entitled thereto having an
aggregate principal amount of debt securities of $1,000,000 or less, by check mailed to the address of such person as it appears
in the security register and (2) to each person entitled thereto having an aggregate principal amount of debt securities of more
than $1,000,000, either by check mailed to such person or, upon application by any such person to the security registrar not later
than the applicable record date, by wire transfer in immediately available funds to such person’s account within the United
States. Such an application will remain in effect until such person notifies the security registrar in writing to the contrary.
In the case of any securities issued in bearer form, payment of interest may be made, at Wabash’s option, by transfer to
an account maintained by the payee with a bank located outside the United States.
Unless otherwise specified
in the applicable prospectus supplement, the principal of (and premium, if any) and interest and any Additional Amounts on any
debt securities in global form registered in the name of or held by The Depository Trust Company, or “DTC,” or its
nominee will be payable to DTC or its nominee as the registered holder thereof.
Unless otherwise specified
in the applicable prospectus supplement, any interest not punctually paid or duly provided for on any interest payment date with
respect to a debt security offered by means of this prospectus, or “Defaulted Interest,” will forthwith cease to be
payable to the holder on the applicable regular record date and may either be paid to the person in whose name such debt security
is registered at the close of business on a special record date, which we refer to as the “Special Record Date,” for
the payment of such Defaulted Interest to be fixed by the applicable trustee, with notice thereof to be given to the holder of
such debt security not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner,
all as more completely described in the applicable Indenture.
Subject to certain limitations
imposed upon debt securities issued in book-entry form, the debt securities of any series offered by means of this prospectus will
be exchangeable for other debt securities in registered form of the same series and of a like aggregate principal amount and tenor
of any authorized denominations upon surrender of such debt securities at the corporate trust office of the applicable trustee
or at an office or agency established by Wabash in accordance with the Indenture. In addition, subject to certain limitations imposed
upon debt securities issued in book-entry form, the debt securities of any series offered by means of this prospectus may be surrendered
for registration of transfer thereof at the corporate trust office of the trustee or other office or agency referred to above.
Every debt security surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument
of transfer. No service charge will be made for any registration of transfer or exchange of any debt securities (other than specified
exchanges not involving a transfer), but Wabash may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. If the applicable prospectus supplement refers to any transfer agent (in addition to the
trustee) initially designated by Wabash with respect to any series of debt securities, Wabash at any time may rescind the designation
of any such transfer agent or approve a change in the location through which any such transfer agent acts, except that Wabash will
be required to maintain a transfer agent in each place of payment for such series. Wabash at any time may designate additional
transfer agents with respect to any series of debt securities offered by means of this prospectus.
Wabash may change the paying
agent or security registrar under either Indenture without prior notice to the holders of the series of debt securities outstanding
thereunder, and also may act as the paying agent and security registrar for such series.
Neither Wabash nor the
trustee for any series of debt securities offered by means of this prospectus will be required to:
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issue, register the transfer of or exchange debt securities of any series during a period beginning
at the opening of business 15 days before any selection of debt securities of that series to be redeemed and ending at the close
of business on the day of mailing of the relevant notice of redemption (or, in the case of bearer securities, the date of first
publication of such notice);
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register the transfer of or exchange any debt security, or portion thereof, called for redemption,
except the unredeemed portion of any debt security being redeemed in part;
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exchange debt securities in bearer form selected for redemption except for an exchange for any
debt security that is registered in the security register of that series and of like tenor; or
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issue, register the transfer of or exchange any debt security which has been surrendered for repayment
at the option of the holder, except the portion, if any, of such debt security not to be so repaid.
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Covenants
Existence.
Except
as described under “Consolidation, Merger and Sale of Assets” below, Wabash and each guarantor, if any, of the debt
securities is required to do or cause to be done all things necessary to preserve and keep in full force and effect its corporate
existence, rights and franchises, except that (a) neither Wabash nor any such guarantor is obligated to preserve any right or franchise
and (b) none of the guarantors is obligated to preserve its existence, in either case if Wabash determines that the preservation
thereof is no longer desirable in the conduct of its business and that the loss thereof is not disadvantageous in any material
respect to the holders of the debt securities issued under the Indenture.
Maintenance of Properties.
Wabash
will cause, and will cause each of its subsidiaries to cause, all of its material properties used or useful in the conduct of its
business or the business of any subsidiary to be maintained and kept in good condition, repair and working order and supplied with
all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of Wabash may be necessary so that the business carried on in connection therewith may be properly and advantageously
conducted at all times, except that Wabash and any subsidiary may discontinue the operation and maintenance of any such properties
if it determines that the discontinuance thereof is no longer desirable in the conduct of its business and is not disadvantageous
in any material respect to the holders of the debt securities issued under the Indenture.
Payment of Taxes and
Other Claims.
Wabash will pay or discharge or cause to be paid or discharged, before the same shall become delinquent,
(1) all material taxes, assessments and governmental charges levied or imposed upon it or any subsidiary or upon the income, profits
or property of Wabash or any subsidiary, and (2) all material lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon the property of Wabash or any subsidiary, unless such lien would not have a material adverse effect
upon such property, except that Wabash will not be required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim (a) whose amount, applicability or validity is being contested in good faith by appropriate proceedings
or (b) for which Wabash has set apart and maintains an adequate reserve.
Delivery of SEC and
Other Reports to the Trustee.
Wabash will ensure delivery to the trustee within 15 calendar days after it files
annual and quarterly reports, information, documents and other reports with the SEC, copies of such reports and information, documents
and other reports which Wabash is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If Wabash
at any time is no longer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, it will continue to
provide the trustee with reports containing substantially the same information as Wabash would have been required to file with
the SEC if Wabash had continued to have been subject to such reporting requirements. In such event, Wabash will provide the trustee
with such reports at the times at which Wabash would have been required to provide the reports if it had continued to have been
subject to such reporting requirements.
Additional Covenants.
Any
additional material covenants of Wabash contained in an Indenture for a series of debt securities offered by means of this prospectus,
or any deletions from or modifications of the covenants described above, will be described in the prospectus supplement relating
to such series.
Consolidation, Merger and Sale of Assets
Each
Indenture provides that Wabash shall not consolidate with or merge with or into, or convey, transfer or lease all or substantially
all of its properties and assets (as an entirety or substantially as an entirety in one transaction or a series of related transactions)
to, another person, unless (1) the resulting, surviving or transferee person (if not Wabash) is a person organized and existing
under the laws of the United States of America, any state thereof or the District of Columbia, and such entity (if not Wabash)
expressly assumes by supplemental indenture, executed and delivered to the trustee in form reasonably satisfactory to the trustee,
all of the obligations of Wabash under the applicable series of debt securities and such Indenture and (2) immediately after giving
effect to such transaction, no default has occurred and is continuing under such Indenture. Upon any such consolidation, merger
or transfer, the resulting, surviving or transferee person shall succeed to, and shall be substituted for, and may exercise every
right and power of, Wabash under the applicable Indenture.
Events of Default, Notice and Waiver
Each
Indenture provides that the following events are “Events of Default” with respect to any series of debt securities
issued thereunder:
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(1)
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default in any payment of interest on, or any Additional Amounts payable in respect of, any debt
security of such series when due and payable, which default continues for a specified period of days after the date when due and
payable;
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(2)
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default in the payment of the principal amount of (or premium, if any, on) any debt security of
such series when due and payable at its stated maturity, upon required repurchase, upon declaration or otherwise;
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(3)
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failure by Wabash to comply with its obligations under “Consolidation, Merger and Sale of
Assets;”
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(4)
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failure by Wabash for a specified period of days after written notice from the trustee or the holders
of a specified amount in principal amount of such series of debt securities then outstanding has been received by Wabash to comply
with any of its other agreements contained in the applicable Indenture; and
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(5)
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certain events of bankruptcy, insolvency, or reorganization relating to Wabash or any Significant
Subsidiary of Wabash or any guarantor of any debt security of such series.
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The term “Significant
Subsidiary” means each significant subsidiary of Wabash as defined in Regulation S-X promulgated under the Securities Act
of 1933.
The prospectus supplement
relating to a particular series of debt securities may contain information relating to deletions from, modifications of or additions
to this list of events of default.
If an Event of Default
under either Indenture with respect to debt securities of any series offered by means of this prospectus at the time outstanding,
other than an Event of Default specified in clause (5) above, occurs and is continuing, then in every such case the trustee or
the holders of not less than a specified amount in principal amount of the outstanding debt securities of that series may declare
the principal amount (or, if the debt securities of that series are original issue discount securities or indexed securities, such
portion of the principal amount as may be specified in the terms thereof) of all of the outstanding debt securities of that series
to be due and payable immediately by written notice thereof to Wabash (and to the applicable trustee if given by the holders),
and upon any such declaration such principal or specified portion thereof shall become immediately due and payable. If an Event
of Default specified in clause (5) above occurs, all unpaid principal of and accrued interest on the outstanding debt securities
of that series (or such lesser amount as may be provided for in the debt securities of such series) shall ipso facto become and
be immediately due and payable without any declaration or other act on the party of the trustee or any holder of any debt security
of that series.
At any time after a declaration
of acceleration with respect to debt securities of the applicable series has been made, but before a judgment or decree for payment
of the money due has been obtained by the applicable trustee, the holders of not less than a majority in principal amount of outstanding
debt securities of such series may rescind and annul such declaration and its consequences if (1) Wabash shall have paid or deposited
with the applicable trustee all required payments of the principal of (and premium, if any) and interest, and any Additional Amounts,
on the debt securities of such series, plus certain fees, expenses, disbursements and advances of the trustee and (2) all Events
of Default, other than the non-payment of principal (or premium, if any) or interest on debt securities of such series, have been
cured or waived as provided in the applicable Indenture. Each Indenture also provides that the holders of not less than a majority
in principal amount of the outstanding debt securities of any series may waive any past default with respect to such series and
its consequences, except a default (a) in the payment of the principal of (or premium, if any) or interest or any Additional Amounts
on any debt security of such series, (b) in the conversion or exchange of the debt securities in accordance with their terms or
(c) in respect of a covenant or provision contained in the applicable Indenture that may not be modified or amended without the
consent of the holders of all outstanding debt securities affected thereby.
Each trustee is required
to give notice to the holders of debt securities within 90 days after a default under the applicable Indenture, except that the
trustee may withhold notice to the holders of any series of debt securities of any default with respect to such series (except
a default in the payment of the principal of (or premium, if any) or interest or any Additional Amounts on any debt security of
such series or in the payment of any sinking fund installment in respect of any debt security of such series) if specified responsible
officers of the trustee consider in good faith such withholding to be in the interest of such holders.
Each Indenture provides
that no holders of debt securities of any series offered by means of this prospectus may institute any proceedings, judicial or
otherwise, with respect to the applicable Indenture or for any remedy thereunder, except in the case of failure of the trustee
thereunder, for a specified period of days, to act after it has received a written request to institute proceedings in respect
of an Event of Default from the holders of not less than a specified amount in principal amount of the outstanding debt securities
of such series (and no direction inconsistent with such written request has been given to the trustee by holders of a majority
in principal amount of the outstanding debt securities of that series), as well as an offer of indemnity reasonably satisfactory
to it. This provision, however, will not prevent any holder of such debt securities from instituting suit for the enforcement of
payment of the principal of (and premium, if any) and interest on, and any Additional Amounts payable with respect to, such debt
securities at the respective due dates thereof or for the enforcement of any conversion right in such debt securities.
Subject to provisions in
each Indenture relating to its duties in case of default, each trustee is under no obligation to exercise any of its rights or
powers under the applicable Indenture at the request or direction of any holders of any series of debt securities offered by means
of this prospectus then outstanding under such Indenture, unless such holders shall have offered to the applicable trustee reasonable
security or indemnity satisfactory to the trustee. The holders of not less than a majority in principal amount of the applicable
outstanding debt securities of any series shall have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee, or of exercising any trust or power conferred upon the trustee. The trustee, however,
may refuse to follow any direction which is in conflict with any law or the applicable Indenture, which may involve the trustee
in personal liability or which may be unduly prejudicial to the holders of debt securities of such series not joining in such direction.
Within 120 days after the
close of each fiscal year, Wabash and each guarantor, if any, of any series of debt securities offered by means of a prospectus
supplement must deliver to each trustee a certificate, signed by one of several specified officers, as to such officer’s
knowledge of its compliance with all conditions and covenants of the applicable Indenture and, in the event of any noncompliance,
specifying such noncompliance and the nature and status thereof.
Modification of the Indentures
Subject
to specified exceptions, each Indenture and any series of debt securities outstanding under such Indenture may be amended by a
supplemental indenture with the consent of the holders of at least a majority in principal amount of such outstanding series of
debt securities (including consents obtained in connection with a purchase of, or tender offer or exchange offer for, such series
of debt securities) and, subject to specified exceptions, any past default or compliance with any provisions may be waived with
the consent of the holders of at least a majority in principal amount of such outstanding series of debt securities. However, without
the consent of each holder of an outstanding debt security of such series affected thereby, no amendment may, among other things:
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reduce the amount of debt securities whose holders must consent to an amendment or waiver;
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reduce the rate of or extend the stated time for payment of interest on any debt security;
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reduce the principal amount of, or extend the stated maturity of, any debt security;
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make any change that adversely affects the conversion rights, if any, of any debt security;
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make any debt security payable in money other than that stated in such debt security;
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impair the right of any holder to receive payment of principal (and premium, if any) and interest
on, or any Additional Amounts payable with respect to, such holder’s debt security on or after the due dates thereof or to
institute suit for the enforcement of any payment on or with respect to such holder’s debt security; or
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modify the foregoing amendment provisions or the provisions relating to waivers of past defaults,
except to increase the percentage of the principal amount of the debt securities whose holders are required to consent to an amendment
or waiver, or to provide that certain other provisions of the applicable Indenture may not be modified or waived without the consent
of the holder of each outstanding debt security affected thereby.
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The holders of not less
than a majority in principal amount of any series of debt securities outstanding under either Indenture have the right to waive
compliance by Wabash with certain covenants in the applicable Indenture with respect to that series of debt securities.
Modifications and amendments
of each Indenture may be made by Wabash and the applicable trustee without the consent of any holder of debt securities issued
thereunder to:
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cure any ambiguity, omission, defect or inconsistency contained in the Indenture;
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provide for the assumption by a successor corporation, partnership, trust or limited liability
company of the obligations of Wabash under the Indenture;
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provide for uncertificated debt securities in addition to or in place of certificated debt securities
(provided that the uncertificated debt securities are issued in registered form for purposes of Section 163(f) of the Internal
Revenue Code, or in a manner such that the uncertificated debt securities are described in Section 163(f)(2)(B) of the Internal
Revenue Code);
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add guarantees with respect to the debt securities;
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secure the debt securities;
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add to the covenants of Wabash for the benefit of the holders of the debt securities, or to surrender
any right or power conferred upon Wabash;
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comply with any requirement of the SEC to effect the qualification of the Indenture under the Trust
Indenture Act; or
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make any change that does not materially and adversely affect the rights of the holders of the
debt securities.
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The consent of the holders
is not necessary under the Indenture to approve the particular form of any proposed amendment. It is sufficient if such consent
approves the substance of the proposed amendment.
Each Indenture provides
that in determining whether the holders of the requisite principal amount of outstanding debt securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver thereunder or whether a quorum is present at a meeting
of holders of debt securities, (1) the principal amount of an original issue discount security that will be deemed to be outstanding
will be the amount of the principal thereof that would be (or shall have been declared to be) due and payable as of the date of
such determination upon declaration of acceleration of the maturity thereof, (2) the principal amount of a debt security denominated
in a foreign currency or currencies that will be deemed outstanding will be the U.S. dollar equivalent, determined on the issue
date for such debt security, of the principal amount (or, in the case of an original issue discount security, the U.S. dollar equivalent
on the issue date of such debt security of the amount determined as provided in clause (1) above), (3) the principal amount of
an indexed security that will be deemed outstanding will be the principal face amount of such indexed security on the issue date,
unless otherwise provided with respect to such indexed security pursuant to the applicable Indenture, and (4) debt securities owned
by Wabash or any other obligor upon the debt securities or any affiliate of Wabash or of such other obligor will be disregarded.
Each Indenture contains
provisions for convening meetings of the holders of debt securities of a series. A meeting may be called by the trustee, by Wabash,
pursuant to a resolution adopted by its board of directors, or by the holders of not less than 10% in principal amount of the outstanding
debt securities of such series, in any such case upon satisfaction of any conditions and upon notice given as provided in the applicable
Indenture. Except for any consent that must be given by the holder of each debt security affected by certain modifications and
amendments of the applicable Indenture, any resolution presented at a meeting or adjourned meeting duly reconvened at which a quorum
is present may be adopted by the affirmative vote of the holders of a majority in principal amount of the outstanding debt securities
of that series. Notwithstanding the foregoing, except as referred to above, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action that may be made, given or taken by the holders of a specified
percentage, which is less than a majority, in principal amount of the outstanding debt securities of a series may be adopted at
a meeting or adjourned meeting duly reconvened at which a quorum is present by the affirmative vote of the holders of such specified
percentage in principal amount of the outstanding debt securities of that series. Any resolution passed or decision taken at any
meeting of holders of debt securities of any series duly held in accordance with the Indenture will be binding on all holders of
debt securities of that series. The quorum at any meeting called to adopt a resolution, and at any reconvened meeting, will be
persons holding or representing a majority in principal amount of the outstanding debt securities of a series, except that if any
action is to be taken at such meeting with respect to a consent or waiver which may be given by the holders of not less than a
specified percentage in principal amount of the outstanding debt securities of a series, the persons holding or representing such
specified percentage in principal amount of the outstanding debt securities of such series will constitute a quorum.
Notwithstanding the provisions
described above, if any action is to be taken at a meeting of holders of debt securities of any series with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action that the applicable Indenture expressly provides may
be made, given or taken by the holders of a specified percentage in principal amount of all outstanding debt securities affected
thereby, or of the holders of such series and one or more additional series, (1) there shall be no minimum quorum requirement for
such meeting and (2) the holders of the principal amount of the outstanding debt securities of such series that vote in favor of
such request, demand, authorization, direction, notice, consent, waiver or other action shall be taken into account in determining
whether such request, demand, authorization, direction, notice, consent, waiver or other action has been made, given or taken under
the applicable Indenture.
Discharge, Defeasance and Covenant Defeasance
Wabash
may discharge certain obligations to holders of any series of debt securities that have not already been delivered to the trustee
for cancellation and that either have become due and payable or will become due and payable at their stated maturity within one
year (or scheduled for redemption within one year) by irrevocably depositing with the applicable trustee, in trust, funds in such
currency or currencies in which such debt securities are payable in an amount sufficient to pay the entire indebtedness on such
debt securities in respect of the principal (and premium, if any) and interest and Additional Amounts payable to the date of such
deposit (if such debt securities have become due and payable) or to the stated maturity or date of redemption, as the case may
be.
Each Indenture provides
that, if the provisions of the relevant Article of such Indenture are made applicable to the debt securities of (or within) any
series pursuant to such Indenture, Wabash may elect either (1) to effect a “defeasance,” in which case it will be discharged
from any and all obligations with respect to such debt securities (except for the obligation to pay Additional Amounts, if any,
and the obligations to register the transfer or exchange of such debt securities, to replace temporary or mutilated, destroyed,
lost or stolen debt securities, to maintain an office or agency in respect of such debt securities and to hold moneys for payment
in trust), or (2) to effect a “covenant defeasance,” in which case it will be released from its obligations with respect
to the covenants described under “— Certain Covenants” or, if provided pursuant to such Indenture, its obligations
with respect to any other covenant, and any omission to comply with such obligations will not constitute a default or an Event
of Default with respect to such debt securities. Such defeasance or covenant defeasance shall be effected upon the irrevocable
deposit by Wabash with the applicable trustee, in trust, of an amount, in such currency or currencies in which such debt securities
are payable at their stated maturity, or Government Obligations (as described below), or both, applicable to such debt securities
which through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount sufficient
to pay the principal of (and premium, if any) and interest on such debt securities, and any mandatory sinking fund or analogous
payments thereon, on the scheduled due dates therefor.
Such a trust may be established
only if, among other things, Wabash has delivered to the applicable trustee an opinion of counsel (as specified in the applicable
Indenture) to the effect that the holders of such debt securities will not recognize income, gain or loss for U.S. federal income
tax purposes as a result of such defeasance or covenant defeasance and will be subject to U.S. federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such defeasance or covenant defeasance had not occurred.
Each Indenture defines
“Government Obligations” to mean securities which are (1) direct obligations of the United States of America or any
government or governments which issued the foreign currency or currencies in which the debt securities of a particular series are
payable, for the payment of which its full faith and credit is pledged, or (2) obligations of a person controlled or supervised
by and acting as an agency or instrumentality of the United States of America or any such other government, the payment of which
is unconditionally guaranteed as a full faith and credit obligation by the United States of America or such other government, which,
in either case, are not callable or redeemable at the option of the issuer thereof. Government Obligations will also include a
depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific
payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a
depository receipt, except that (other than as required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the Government Obligation evidenced by such depository receipt.
Unless otherwise provided
in the applicable supplemental indenture relating to any series of debt securities, if after Wabash has deposited funds or Government
Obligations to effect defeasance or covenant defeasance with respect to debt securities of any series, (1) the holder of a debt
security of such series is entitled to, and does, elect pursuant to the applicable Indenture or the terms of such debt security
to receive payment in a currency other than that in which such deposit has been made in respect of such debt security, or (2) a
Conversion Event (as described below) occurs in respect of the currency in which such deposit has been made, the indebtedness represented
by such debt security and any coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (and premium, if any) and interest, if any, on such debt security as they become due out
of the proceeds yielded by converting the amount or other property so deposited in respect of such debt security into the currency
in which such debt security becomes payable as a result of such election or Conversion Event based on the applicable market exchange
rate. Each Indenture defines “Conversion Event” to mean the cessation of use of (a) a foreign currency other than the
Euro both by the government of the country which issued such currency and for the settlement of transactions by a central bank
or other public institutions of or within the international banking community, (b) the Euro both within the European Monetary System
and for the settlement of transactions by public institutions of or within the European Community or (c) any currency for the purposes
for which it was established. Unless otherwise provided in the applicable prospectus supplement, all payments of principal of (and
premium, if any) and interest on any debt security that is payable in a foreign currency that ceases to be used by its government
of issuance shall be made in U.S. dollars. If Wabash effects a covenant defeasance with respect to any debt securities and such
debt securities are declared due and payable because of the occurrence of an Event of Default, the amount in such currency in which
such debt securities are payable, and Government Obligations on deposit with the applicable trustee, will be sufficient to pay
amounts due on such debt securities at the time of their stated maturity but may not be sufficient to pay amounts due on such debt
securities at the time of the acceleration resulting from such Event of Default. Wabash, however, would remain liable to make payment
of such amounts due at the time of acceleration.
The applicable prospectus
supplement may further describe the provisions, if any, permitting such defeasance or covenant defeasance, including any modifications
to the provisions described above, with respect to the debt securities of or within a particular series.
Senior Debt Securities
Payment
of the principal of and premium, if any, and interest on debt securities we issue under the Senior Debt Securities Indenture will
rank equally with all of our unsecured and unsubordinated debt.
Subordination of Subordinated Debt Securities
To
the extent provided in the Subordinated Debt Securities Indenture and any supplemental indenture, and as described in the prospectus
supplement describing the applicable series of subordinated debt securities, the payment of the principal of and premium, if any,
and interest on any subordinated debt securities, including amounts payable on any redemption or repurchase, will be subordinated
in right of payment and junior to senior indebtedness, which is defined below. If there is a distribution to creditors of Wabash
in a liquidation or dissolution of Wabash, or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating
to Wabash, the holders of senior indebtedness will first be entitled to receive payment in full of all amounts due on the senior
indebtedness (or provision shall be made for such payment in cash) before any payments may be made on the subordinated debt securities.
Because of this subordination, general creditors of Wabash may recover more, ratably, than holders of subordinated debt securities
in the event of a distribution of assets upon insolvency.
The supplemental indenture
will set forth the terms and conditions under which, if any, we will not be permitted to pay principal, premium, if any, or interest
on the related subordinated debt securities upon the occurrence of an event of default or other circumstances arising under or
with respect to senior indebtedness.
The Indentures will place
no limitation on the amount of senior indebtedness that we may incur. We expect to incur from time to time additional indebtedness
constituting senior indebtedness, which may include indebtedness that is senior to the subordinated debt securities but subordinate
to our other obligations.
The Subordinated Debt Securities
Indenture defines “senior indebtedness” as the principal of, and premium, if any, interest, including any interest
accruing after the commencement of any bankruptcy or similar proceeding, whether or not a claim for post-petition interest is allowed
as a claim in the proceeding, and rent payable on or in connection with, and all fees, costs, expenses and other amounts accrued
or due on or in connection with, Indebtedness of Wabash, whether secured or unsecured, absolute or contingent, due or to become
due, outstanding on the date of the indenture or thereafter created, incurred, assumed, guaranteed or in effect guaranteed by Wabash,
including all deferrals, renewals, extensions or refundings of, or amendments, modifications or supplements to, the foregoing.
Senior indebtedness does not include:
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indebtedness that expressly provides that such indebtedness (1) shall not be senior in right of
payment to the subordinated debt securities, (2) shall be equal or junior in right of payment to the subordinated debt securities,
or (3) shall be junior in right of payment to any of Wabash’s other indebtedness;
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any indebtedness of Wabash to any of its majority-owned subsidiaries, other than indebtedness to
Wabash’s majority-owned subsidiaries arising by reason of guarantees by Wabash of indebtedness of such subsidiary to a person
that is not Wabash’s subsidiary; and
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indebtedness for trade payables or the deferred purchase price of assets or services incurred in
the ordinary course of business.
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Paying Agents
We
may appoint one or more other financial institutions to act as our paying agents. We may add, replace or terminate paying agents
from time to time. We may also choose to act as our own paying agent. We will specify in the prospectus supplement for the debt
security the initial location of each paying agent for that debt security. We must notify the trustee of changes in the paying
agents.
Notices
Notices
to be given to holders of debt securities will be sent by mail to the respective addresses of the holders as they appear in the
trustee’s records, and will be deemed given when mailed. Neither the failure to give any notice to a particular holder, nor
any defect in a notice given to a particular holder, will affect the sufficiency of any notice given to another holder. Book-entry
and other indirect owners should consult their banks or brokers for information on how they will receive notices.
The Trustee
We
may appoint one or more institutions to act as trustees. We will identify trustees and provide additional information about trustees
in a prospectus supplement. The trustee for the Senior Debt Securities Indenture is currently Wells Fargo Bank, National Association.
Governing Law
The
indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York.