Exhibit 10.1
Execution Copy
THIRD AMENDMENT AND CONSENT TO
THE FOURTH AMENDED AND
RESTATED CREDIT AGREEMENT; AND FIRST AMENDMENT TO THE AMENDED
AND RESTATED GUARANTEE AND COLLATERAL
AGREEMENT
This Third Amendment and Consent to
the Fourth Amended and Restated Credit Agreement; and First
Amendment to the Amended and Restated Guarantee and Collateral
Agreement (collectively, this “ Third Amendment
”), dated as of August 14, 2009, is by and among
Accuride Corporation, a Delaware corporation (the “ U.S.
Borrower ”), Accuride Canada Inc., a corporation
organized and existing under the law of the Province of Ontario
(the “ Canadian Borrower ” and, together with
the U.S. Borrower, the “ Borrowers ”), Citicorp
USA, Inc. (“ Citicorp ”), as Administrative
Agent under the Credit Agreement referred to below (in such
capacity, the “ Existing Administrative Agent
”), Deutsche Bank Trust Company Americas (“
DBTCA ”), as the successor Administrative Agent under
the Credit Agreement referred to below (in such capacity, the
“ Successor Administrative Agent ”), the
undersigned Lenders party to the Credit Agreement and each of the
undersigned Subsidiaries of the U.S. Borrower (the “
Subsidiary Guarantors ” and, together with the
Borrowers, the “ Loan Parties ”).
Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to such terms in the Credit
Agreement.
W I T N E S
S E T H:
WHEREAS, the Borrowers, various
lenders from time to time party thereto (the “ Lenders
”), the Existing Administrative Agent and the other agents
and arrangers named therein are party to that certain Fourth
Amended and Restated Credit Agreement, dated as of January 31,
2005 (as amended, supplemented and/or otherwise modified to, but
not including, the date hereof, the “ Credit Agreement
”);
WHEREAS, the U.S. Borrower and the
Subsidiary Guarantors are party to that certain Amended and
Restated Guarantee and Collateral Agreement, dated as of
January 31, 2005, for the benefit of the Existing
Administrative Agent and the Secured Parties (as amended,
supplemented and/or otherwise modified to, but not including, the
date hereof, the “ Guarantee and Collateral Agreement
”);
WHEREAS, the Borrowers, the Lenders
party thereto and the Existing Administrative Agent are party to
that certain Temporary Waiver Agreement, dated as of July 1,
2009 (the “ Temporary Waiver Agreement ”),
pursuant to which (1) the Existing Administrative Agent has
resigned as the Administrative Agent under the Loan Documents,
effective as of the Third Amendment Effective Date (as defined
below); (2) the Lenders have appointed DBTCA as the Successor
Administrative Agent under the Loan Documents, effective as of the
Third Amendment Effective Date; (3) the U.S. Borrower has
consented to the appointment of DBTCA as the Successor
Administrative Agent under the Loan Documents; and (4) DBTCA
has accepted its appointment as the Successor Administrative Agent,
subject to, among other things, execution and delivery of that
certain Resignation and Assignment Agreement, dated the date
hereof, in the form of Exhibit A hereto (the “
Resignation and Assignment Agreement ”), among the
Borrowers, the other Loan Parties, the Existing Administrative
Agent and the Successor Administrative Agent and this Third
Amendment and the delivery of the documents required under
Section IV(1) of this Third Amendment;
WHEREAS, the Successor
Administrative Agent has requested that the Majority Lenders
reaffirm their consent to such appointment;
WHEREAS, in connection with the
Resignation and Assignment Agreement and subject to the terms and
conditions of this Third Amendment, the Successor Administrative
Agent has requested, and the Loan Parties and the Lenders are
willing to agree to, certain amendments to the Credit Agreement and
the Guarantee and Collateral Agreement and certain consents and
agreements with respect to the Credit Agreement, in each case as
described herein;
WHEREAS, pursuant to
Section 9.01 of the Credit Agreement, the consent of the
Majority Lenders is required to effect the amendments, consents and
other agreements set forth herein; and
WHEREAS, subject to the terms and
conditions of this Third Amendment, the parties hereto wish to
amend and enter into agreements with respect to certain provisions
of the Credit Agreement and the Guarantee and Collateral
Agreement;
NOW, THEREFORE, it is
agreed:
I.
Consent With
Respect to Credit Agreement .
Effective as of
the Third Amendment Effective Date, the Majority Lenders and the
Borrowers, in accordance with Section 8.06 of the Credit
Agreement, hereby reaffirm their consent to the appointment of
DBTCA as the Successor Administrative Agent.
II.
Amendments to Credit
Agreement .
As of the Third Amendment Effective
Date, and subject to the satisfaction of the conditions set forth
in Section IV hereof:
1.
Section 1.01 of the Credit
Agreement is hereby amended by inserting the following new
definitions in the appropriate alphabetical order:
“ DBTCA ” means
Deutsche Bank Trust Company Americas.
“ Interest Determination
Date ” means, with respect to any Eurodollar Rate
Advance, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Rate
Advance.
“ Prime Rate ”
means the rate which the Administrative Agent announces from time
to time as its prime lending rate, the Prime Rate to change when
and as such prime lending rate changes. The Prime Rate is a
reference rate and does not necessarily represent the lowest or
best rate actually charged to any customer by the Administrative
Agent, which may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate.
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“ Resignation and
Assignment Agreement ” means that certain Resignation and
Assignment Agreement, dated as of August 14, 2009, among the
Borrowers, the other Loan Parties, Citicorp, as Existing
Administrative Agent (as such term is defined therein), and DBTCA,
as Successor Administrative Agent (as defined therein).
“ Third Amendment
” means the Third Amendment and Consent to the Fourth Amended
and Restated Credit Agreement; and First Amendment to the Amended
and Restated Guarantee and Collateral Agreement, dated as of
August 14, 2009.
“ Third Amendment Effective
Date ” has the meaning specified in the Third
Amendment.
2.
Section 1.01 of the Credit
Agreement is hereby further amended by deleting the definitions of
“Communications”, “Notice”,
“Reference Banks” and “Platform” appearing
in said Section in their entirety.
3.
The definition of
“Administrative Agent” appearing in Section 1.01
of the Credit Agreement is hereby amended by inserting the
following text immediately prior to the period (“.”)
appearing at the end of said definition:
“; provided that, from
and after the Third Amendment Effective Date, “Administrative
Agent” means DBTCA or any of its successors, including any
successor appointed pursuant to
Article VIII”.
4.
The definition of
“Administrative Agent’s Accoun t ”
appearing in Section 1.01 of the Credit Agreement is hereby
amended and restated in its entirety as follows:
“ Administrative
Agent’s Account ” means the account of the
Administrative Agent maintained by the Administrative Agent at
(a) its office at 60 Wall Street, New York, New York 10005,
Reference: Accuride or (b) such other office of the
Administrative Agent located in the United States as may from time
to time hereafter be designated as such in a written notice
delivered by the Administrative Agent to the Borrowers and each
Lender.
5.
The definition of “Base
Rate” appearing in Section 1.01 of the Credit Agreement
is hereby amended and restated in its entirety as
follows:
“ Base Rate ”
means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal
Funds Effective Rate in effect on such day plus ½ of 1% and
(c) the Eurodollar Rate for a Eurodollar Rate Advance
denominated in U.S. dollars with a one-month interest period
commencing on such day plus 1.0%. For purposes of clause
(c) of this definition, the Eurodollar Rate shall be
determined using the Eurodollar Rate as otherwise determined by the
Administrative Agent in accordance with the definition of
Eurodollar Rate, except that (x) if a given day is a Business
Day, such determination shall be made on such day (rather than on
the second Business Day prior to the first day of an Interest
Period) or (y) if a given day is not a Business Day, the
Eurodollar Rate for such day shall be the rate determined by the
Administrative Agent pursuant to preceding clause (x) for the
most recent Business Day
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preceding such day; provided
that the determination of the Eurodollar Rate shall disregard the
rounding requirement set forth in the definition of Eurodollar
Rate.
6.
The definition of
“Borrower’s Account” appearing in
Section 1.01 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
“ Borrower’s
Account ” means, with respect to each Borrower, the
account of such Borrower maintained by such Borrower with the
Administrative Agent at its office at (i) 60 Wall Street, New
York, New York 10005 or (ii) such other office of the
Administrative Agent as may from time to time hereafter be
designated as such in a written notice delivered by the
Administrative Agent to the Borrowers and each Lender.
7.
The definition of “Eurodollar
Rate” appearing in Section 1.01 of the Credit Agreement
is hereby amended and restated in its entirety as
follow:
“ Eurodollar Rate
” means, for any Interest Period for all Eurodollar Rate
Advances comprising part of the same Borrowing, an interest rate
per annum equal to the rate per annum obtained by dividing
(a) the rate per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum) at which deposits in U.S. dollars
are offered by the principal office of the Administrative Agent in
London, England to first-class banks in the London interbank market
at 11:00 A.M. (London time) for U.S. dollar deposits of
amounts in immediately available funds comparable to the
outstanding principal amount of the Eurodollar Rate Advance of the
Administrative Agent (in its capacity as a Lender) (or, if the
Administrative Agent is not a Lender with respect thereto, taking
the average principal amount of the Eurodollar Rate Advance then
being made by the various Lenders pursuant thereto)) with
maturities comparable to the Interest Period applicable to such
Eurodollar Rate Advance commencing two Business Days thereafter as
of 10:00 A.M. (New York City time) on the applicable Interest
Determination Date by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period.
The Eurodollar Rate for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing shall be
determined by the Administrative Agent, subject ,
however , to the provisions of Section 2.07.
Notwithstanding the foregoing, the Eurodollar Rate shall not be
less than 3.00% per annum.
8.
The definition of “Guarantee
and Collateral Agreement” appearing in Section 1.01 of
the Credit Agreement is hereby amended by inserting the following
text immediately prior to the period (“.”) appearing at
the end of said definition:
“, as such agreement may be
amended, supplemented or otherwise modified from time to
time”.
9.
The definition of
“Liquidity” appearing in Section 1.01 of the
Credit Agreement is hereby amended by deleting the text
“Citibank, N.A.” appearing in said definition and
inserting the text “DBTCA” in lieu thereof.
10.
The definition of “Loan
Documents” appearing in Section 1.01 of the Credit
Agreement is hereby amended by (i) deleting the text
“and” appearing immediately prior to the text
“(v)” in clause (a) of said definition and
inserting a comma (“,”) in lieu thereof,
(ii) inserting
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the text “and (vi) the Resignation
and Assignment Agreement” immediately following the text
“each Letter of Credit” appearing in clause (a) of
said definition, (iii) deleting the text “and”
appearing immediately prior to the text “(vi)” in
clause (b) of said definition and inserting a comma
(“,”) in lieu thereof and (iv) inserting the text
“and (vii) the Resignation and Assignment
Agreement” immediately following the text “each Bank
Hedge Agreement” appearing in clause (b) of said
definition.
11.
Section 1.04 of the Credit
Agreement is hereby amended by deleting the text
“Citibank” appearing in said Section and inserting
the text “DBTCA” in lieu thereof.
12.
Section 2.07(c) of the
Credit Agreement is hereby amended by deleting the text “,
and the applicable rate, if any, furnished by each Reference Bank
for the purpose of determining the applicable interest rate under
clause (a)(ii)” appearing in said Section.
13.
Section 2.07(d) of the
Credit Agreement is hereby amended and restated in its entirety as
follows:
“(d)
Interest Rate
Determination . Upon each
Interest Determination Date, the Administrative Agent shall
determine the Eurodollar Rate for each Interest Period applicable
to the respective Eurodollar Loans and shall promptly notify the
Borrower and the Lenders thereof. Each such determination
shall, absent manifest error, be final and conclusive and binding
on all parties hereto. If on any Interest Determination Date,
the Administrative Agent determines that, by reason of any changes
arising after the date of this Agreement affecting the interbank
Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for
in the definition of Eurodollar Rate, the Administrative Agent
shall forthwith notify the Appropriate Borrower and the Lenders
that the interest rate cannot be determined for such Eurodollar
Rate Advances and (A) each such Advance will automatically, on
the last day of the then existing Interest Period therefor, convert
into a Base Rate Advance (or if such Advance is then a Base Rate
Advance, will continue as a Base Rate Advance), and (B) the
obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Appropriate Borrower and the
Lenders that the circumstances causing such suspension no longer
exist.”.
14.
Section 2.08(a) of the
Credit Agreement is hereby amended by (i) deleting the text
“average” immediately before the text “daily
Unused U.S. Revolving Credit Commitment” appearing in said
Section, (ii) deleting the text “only” immediately
after the text “Lender that is a U.S. Revolving Credit
Lender” appearing in said Section and
(iii) deleting the text “average” immediately
before the text “daily outstanding Swing Line Advances”
appearing in said Section.
15.
Section 2.08(b)(i) of the
Credit Agreement is hereby amended by deleting the text
“average” immediately before the text “daily
aggregate Available LC Amount” appearing in said
Section.
16.
Section 2.08(b)(ii) of the
Credit Agreement is hereby amended by deleting the text
“average” immediately before the text “daily
aggregate Available LC Amount” appearing in said
Section.
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17.
Section 2.15(c) of the
Credit Agreement is hereby amended by deleting each reference to
“Citibank” appearing in said Section and inserting
the text “DBTCA” in lieu thereof.
18.
Section 5.02(b)(iii)(E) of
the Credit Agreement is hereby amended by deleting the text
“indorsement” appearing in said Section and
inserting the text “endorsement” in lieu
thereof.
19.
Section 8.01 of the Credit
Agreement is hereby amended by inserting the text
“irrevocably” immediately prior to the text
“appoints” appearing in the first sentence of said
Section.
20.
Section 8.01 of the Credit
Agreement is hereby further amended by inserting the following new
sentences immediately following the first sentence of said
Section:
“The Administrative Agent
shall not have any duties or responsibilities except those
expressly set forth in this Agreement and in the other Loan
Documents, and the Administrative Agent may perform any of its
respective duties hereunder by or through its officers, directors,
agents, employees or affiliates. The duties of the
Administrative Agent shall be mechanical and administrative in
nature; the Administrative Agent shall not have by reason of this
Agreement or any other Loan Document a fiduciary relationship in
respect of any Lender or the holder of any Note; and nothing in
this Agreement or in any other Loan Document, expressed or implied,
is intended to or shall be so construed as to impose upon the
Administrative Agent any obligations in respect of this Agreement
or any other Loan Document except as expressly set forth herein or
therein.”.
21.
Section 8.01 of the Credit
Agreement is hereby further amended by inserting the text
“not incur any liability to any Lender Party and shall”
immediately prior to the text “be fully protected”
appearing in the fourth sentence (after giving effect to the
amendments set forth in preceding paragraph 20) of said
Section.
22.
Section 8.01 of the Credit
Agreement is hereby further amended by inserting the following new
sentence immediately prior to the last sentence of said
Section:
“Without limiting the
foregoing, neither any Lender nor the holder of any Note shall have
any right of action whatsoever against the Administrative Agent as
a result of the Administrative Agent acting or refraining from
acting hereunder or under any other Loan Document in accordance
with the instructions of the Majority Lenders (or, if so specified
by this Agreement, any applicable greater percentage of
Lenders).”.
23.
Section 8.02 of the Credit
Agreement is hereby amended and restated in its entirety as
follows:
“Section 8.02.
Administrative Agent’s Reliance, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents
or employees shall be liable for any action taken or omitted to be
taken by it or them under or in connection with the Loan Documents,
except for its or their own gross negligence or willful misconduct
(as determined by a court of competent jurisdiction in a final and
non-appealable decision). Without limitation of the
generality of the foregoing, the Administrative Agent:
(a) may
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deem and treat
the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts an Assignment and
Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, as
provided in Section 9.07; (b) with respect to any
request, authority or consent of any Person who, at the time of
making such request or giving such authority or consent, is the
holder of any Note, may consider as conclusive and binding any such
request, authority or consent of such Person, as applicable,
on any subsequent holder, transferee, assignee or endorsee, as the
case may be, of such Note or of any Note or Notes issued in
exchange therefore; (c) may consult with legal counsel
(including counsel for any Loan Party), independent public
accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or
experts; (d) makes no warranty or representation to any Lender
Party and shall not be responsible to any Le
