Exhibit 10.2
SECOND FORBEARANCE
AGREEMENT
THIS SECOND FORBEARANCE AGREEMENT
(this “ Second Forbearance Agreement ”), dated
as of September 30, 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 and such interest remains unpaid as of the date
hereof;
WHEREAS, pursuant to
Section 501(ii) of the Indenture, such failure to pay
interest constitutes an Event of Default;
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, Holders entered into a
forbearance agreement dated as of August 31, 2009, pursuant to
which Holders agreed to provisionally forbear from exercising their
rights and remedies under the Indenture and the Notes as a result
of the foregoing default until September 30, 2009;
WHEREAS, the Issuer has requested
that Holders agree to extend the provisional forbearance of the
Specified Default (as defined below) through the Second Forbearance
Termination Date (as defined below) in order to afford the Issuer
and Holders an opportunity to continue discussions and attempt to
finalize a Restructuring on terms and conditions acceptable to
Holders (in their sole discretion);
WHEREAS, Holders are willing to
agree to extend the provisional forbearance of the Specified
Default through the Second Forbearance Termination Date, subject to
the terms and conditions and to the extent set forth herein and
without any advance understanding or agreement by Holders to
consent to any proposed terms of Restructuring or the consummation
of any transaction for which consent or waiver would be required
under the Indenture; and
WHEREAS, the parties hereto desire
to enter into this Second Forbearance Agreement to evidence and
effectuate such extension of the provisional forbearance, 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)
“ Second Forbearance Agreement ” shall mean this
Second 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)
“ Second Forbearance Termination Date ” shall
mean the earliest to occur of October 5, 2009, or the date of
the occurrence of any Termination Event.
(c)
“ Third Temporary Waiver ” shall mean that
certain Third Temporary Waiver Agreement, dated as of
September 15, 2009, by and among Accuride Corporation,
Accuride Canada Inc., the lenders party thereto and Citicorp
USA, Inc.
(d)
“Third Temporary Waiver Termination Date ” shall
have the meaning ascribed to it in the Third 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 Second Forbearance
Agreement, including, without limitation, the covenant set forth in
Section 4.1 (it being agreed that prior to declaring a
Termination Event for failure to satisfy the covenant in
Section 4.1, Holders or their representative must first
provide the Company with notice of the breach and at least two
(2) 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
Third Temporary Waiver Termination Date through and including at
least October 5, 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 October 5, 2009, on or before
September 30, 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 .
(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,
as the date hereof, remains unpaid and such failure to pay
constitutes an Event of Default (the “ Specified
Default ”) pursuant to Section 501(ii) of the
Indenture; 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 are 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
Second 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 Second 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 Second Forbearance Agreement, the Indenture or the
Notes. Holders, however, agree to have their representatives
inform the Trustee of this Second 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 Holders’ actions in entering into this
Second Forbearance Agreement are without prejudice to the rights of
any of the Trustee and 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 Second
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 th
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