Exhibit 10.1
EXECUTION VERSION
FORBEARANCE
AGREEMENT
THIS FORBEARANCE AGREEMENT (this
“ Forbearance Agreement ”), dated as of
August 31, 2009, is entered into by and among certain holders
of the 8-1/2% Senior Subordinated Notes due 2015 (“
Notes ”) issued pursuant to an indenture dated as of
January 31, 2005 (the “ Indenture ”) among
the Issuer (as defined below), certain guarantors (the “
Guarantors ”) and The Bank of New York Mellon Trust
Company, N.A.(f.k.a. The Bank of New York Trust Company, N.A.), as
Trustee (the “ Trustee ”), which holders are
signatories hereto (each individually a “ Holder
” and collectively, “ Holders ”), and
Accuride Corporation, a Delaware corporation (“ Issuer
”).
W I T N E S
S E T H :
WHEREAS, the Issuer has not paid the
$11,687,500 of interest on the Notes due on August 3,
2009;
WHEREAS, pursuant to
Section 501(ii) of the Indenture, such failure is not an
Event of Default for a period of 30 days after the due date (such
30-day period, a “ grace period ”);
WHEREAS, the Issuer is engaged in
discussions with lenders under its Senior Credit Facilities and
with the Holders regarding a restructuring of its capital structure
(a “ Restructuring ”);
WHEREAS, the Issuer has requested,
among other things, that Holders provisionally forbear from
exercising their rights and remedies under the Indenture and the
Notes as a result of the foregoing default;
WHEREAS, the parties hereto desire
to enter into this Forbearance Agreement to evidence and effectuate
such provisional forbearance, subject to the terms and conditions
and to the extent set forth herein; and
WHEREAS, Holders are willing to
agree to provisionally forbear from exercising their rights and
remedies under the Notes and the Indenture and applicable law,
subject to the terms and conditions and to the extent set forth
herein.
NOW, THEREFORE, in consideration of
the foregoing, and the respective agreements, warranties and
covenants contained herein, the parties hereto agree, covenant and
warrant as follows:
1.
Definitions
1.1
Definitions . As used herein, the following terms
shall have the respective meanings given to them below:
(a)
“ Forbearance Agreement ” shall mean this
Forbearance Agreement by and among Issuer and Holders, as the same
now exists or may hereafter be amended, modified, extended,
renewed, restated or replaced.
(b)
“ Forbearance Termination Date ” shall mean the
earliest to occur of September 30, 2009, or the date of the
occurrence of any Termination Event.
(c)
“ Second Temporary Waiver ” shall mean that
certain Second Temporary Waiver Agreement, dated as of
August 14, 2009, by and among Accuride Corporation, Accuride
Canada Inc., the lenders party thereto and Citicorp
USA, Inc.
(d)
“Second Temporary Waiver Termination Date ”
shall have the meaning ascribed to it in the Second Temporary
Waiver.
(e)
“ Senior Credit Facilities ” shall mean the
credit agreement dated as of January 31, 2005, as amended from
time to time, among the Issuer, Accuride Canada Inc., a corporation
organized and existing under the law of the Province of Ontario,
the lenders named therein, Deutsche Bank Trust Company Americas (as
successor to Citicorp USA, Inc.), as the administrative agent,
and other agent parties thereto.
(f)
“ Termination Event ” shall mean the occurrence
of any of the following events:
(i)
any Event of Default, other than the Specified Default;
(ii)
any breach of any
of the conditions or agreements provided in this Forbearance
Agreement, including, without limitation, the covenant set forth in
Section 4.2 (it being agreed that prior to declaring a
Termination Event for failure to satisfy the covenant in
Section 4.2, the Holders or their representative must first
provide the Company with notice of the breach and at least five
(5) full business days to cure such breach)
;
(iii)
the Trustee pursues any other remedies or rights permitted under
Section 502 or 503 of the Indenture (notwithstanding its
having received the notice required by the last sentence of
Section 2.1(a));
(iv)
the lenders under the Senior Credit Facilities accelerate the
obligations under the Senior Credit Facilities or pursue any
remedies or rights in respect of the Senior Credit Facilities
permitted by Section 7.01 of the Senior Credit Facilities;
or
(v)
the lenders under the Senior Credit Facilities do not extend the
Second Temporary Waiver Termination Date through and including at
least September 30, 2009 or otherwise grant an additional
waiver of any Default or Event of Default (each as defined in the
Senior Credit Facilities) under the Senior Credit Facilities or
agree to forbear from taking any Enforcement Action (as defined in
the Second Temporary Waiver) through and including at least
September 30, 2009, on or before September 15,
2009.
1.2
Interpretation . All capitalized terms used herein
shall have the meanings assigned thereto in the Indenture unless
otherwise defined herein.
2.
Provisional Forbearance as to Specified Default
2.1
Acknowledgment of Default .
2
(a)
The Issuer hereby acknowledges and agrees that (i) $11,687,500
of interest on the Notes due August 3, 2009 was not paid, and
that 30 days thereafter, if such interest remains unpaid, it would
constitute an Event of Default, (the “ Specified
Default ”) and (ii) immediately upon the occurrence
of the Specified Default, the Trustee or Holders of at least 30% of
the principal amount of outstanding Notes would be entitled to
exercise certain rights and remedies under the Indenture, the Notes
and applicable law. The Issuer hereby represents and warrants
that except for the Specified Default, no other defaults or Events
of Default under the Indenture have occurred and are continuing as
of the date hereof. Except as expressly set forth in this
Forbearance Agreement, the agreements of the Trustee and Holders
hereunder to forbear provisionally in the exercise of their
respective rights and remedies under the Indenture in respect of
the Specified Default until the Forbearance Termination Date does
not in any manner whatsoever limit any right of any of the Trustee
and Holders to insist upon strict compliance by the Issuer with
this Forbearance Agreement, the Indenture or the Notes. The
Holders, however, agree to have their representatives inform the
Trustee of this Forbearance Agreement and of their desire to have
the Trustee act consistently with the forbearance
arrangements provided for herein.
(b)
Holders have not waived presently, do not intend to waive and may
never waive the Specified Default, and nothing contained herein or
the transactions contemplated hereby shall be construed or
interpreted to constitute any such waiver. The
Trustee’s and the Holders’ actions in entering into
this Forbearance Agreement are without prejudice to the rights of
any of the Trustee and the Holders to pursue any and all remedies
under the Indenture pursuant to applicable law or in equity
available to it in its sole discretion upon the termination
(whether upon expiration thereof, upon acceleration or otherwise)
of this Forbearance Agreement.
2.2
Forbearance .
(a)
Subject to satisfaction of the conditions precedent specified in
Section 5 below, each Holder hereby agrees to forbear, and
directs the Trustee to forbear, from exercising their respective
rights and remedies under the Indenture, the Notes and applicable
law, should the Specified Default occur, until the Forbearance
Termination Date.
(b)
Upon the Forbearance Termination Date, the agreement of each Holder
to forbear, and direct the Trustee to forbear, with respect to the
Specified Default shall automatically and without further action
immediately terminate and be of no force and effect, it being
understood and agreed that the effect of such termination will be
to permit Trustee and/or Holders to immediately exercise their
respective rights and remedies under the Notes and Indenture,
applicable law
|
