Exhibit 10.1
FOURTH TEMPORARY WAIVER AGREEMENT
(this “ Agreement ”), dated as of
September 30, 2009, to the Fourth Amended and Restated Credit
Agreement dated as of January 31, 2005 (as heretofore amended,
supplemented or otherwise modified, the “ Credit
Agreement ”), 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 ”), the banks, financial institutions and
other institutional lenders party thereto (collectively, the
“ Lenders ”) and DEUTSCHE BANK TRUST COMPANY
AMERICAS, as administrative agent for the Lenders (in such capacity
as successor to Citicorp USA, Inc., the “
Administrative Agent ”), is entered into by and among
the Borrowers, the other Loan Parties and the Lenders.
W I T N
E S S E
T H :
A.
WHEREAS, the Borrowers, the Lenders, and the Administrative Agent
are parties to the Credit Agreement;
B.
WHEREAS, pursuant to the Credit Agreement, the Lenders have made
certain loans to the Borrowers;
C.
WHEREAS, as a result of the then likely occurrence of certain
Events of Default under the Credit Agreement, Citicorp
USA, Inc., as Administrative Agent at such time, and the
Lenders entered into that certain Temporary Waiver Agreement (the
“ First Temporary Waiver Agreement ”), dated as
of July 1, 2009, whereby the Lenders agreed to temporarily
waive the Scheduled Defaults until the Temporary Waiver Termination
Date as so defined therein (hereinafter defined as the “
First Temporary Waiver Termination Date
”);
D.
WHEREAS, as a result of the then likely occurrence and/or
continuation of certain Events of Default after the First Temporary
Waiver Termination Date, under the Credit Agreement, Citicorp
USA, Inc., as Administrative Agent at such time, and the
Lenders entered into that certain Second Temporary Waiver
Agreement (the “ Second Temporary Wavier
Agreement ”), dated as August 14, 2009, whereby the
Lenders agreed to extend the temporary waiver of the Scheduled
Defaults and temporarily waive the Additional Default until the
Second Temporary Waiver Termination Date;
E.
WHEREAS, as a result of the then likely occurrence and/or
continuation of certain Events of Default after the Second
Temporary Waiver Termination Date, under the Credit Agreement, the
Administrative Agent and the Lenders entered into that certain
Third Temporary Waiver Agreement (the “ Third
Temporary Wavier Agreement ”), dated as
September 15, 2009, whereby the Lenders agreed to extend the
temporary waiver of the Scheduled Defaults and the Additional
Default and temporarily waive the Technical Default until the Third
Temporary Waiver Termination Date;
F.
WHEREAS, the Administrative Agent and the Lenders will, if the
Scheduled Defaults, the Additional Default or the Technical Default
occur(s) and remain(s) continuing as a result of the
Third Temporary Waiver Termination Date occurring, be entitled
to
exercise all of their rights and remedies
under the Credit Agreement, the other Loan Documents and applicable
law (such rights, remedies and actions, collectively, “
Enforcement Actions ”), including without limitation,
to declare to be immediately due and payable the outstanding
principal of the Advances, all accrued interest thereon and all
fees and other obligations owing to the Administrative Agent and
the Lenders under the Credit Agreement and the other Loan
Documents;
G.
WHEREAS, certain Lenders identified to the U.S. Borrower have
formed a steering committee (the “ Steering Committee
”), provided that members of the Steering Committee
shall not assume any additional duties or obligations as a result
of being on the Steering Committee;
H.
WHEREAS, each Borrower acknowledges and agrees that it shall
continue to not request any Advances, Letters of Credit or other
extensions of credit under the Credit Agreement during the Fourth
Temporary Waiver Period (as defined below), except as contemplated
in Section 4.7 hereof;
I.
WHEREAS, the Borrowers have requested that the Lenders agree to
extend the temporary waiver of the Scheduled Defaults, the
Additional Default and the Technical Default through the Fourth
Temporary Waiver Termination Date (as defined below) in order to
afford the Borrowers an opportunity to propose an amendment to or
restructuring of its obligations under the Credit Agreement and the
other Loan Documents that is acceptable to the Lenders (in their
sole discretion); and
J.
WHEREAS, the Lenders have agreed to such request, subject to the
terms and provisions set forth in this Agreement, and without any
advance understanding or agreement by the Lenders to consent to any
proposed amendment to or restructuring of the Credit Agreement or
the consummation of any transaction for which consent or waiver
would be required under the Credit Agreement or the other Loan
Documents.
NOW, THEREFORE, in consideration of
the premises herein contained and for other good and valuable
consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1.
Definitions .Capitalized terms used herein (including in the
recitals) but not defined herein have the meanings assigned to them
in the Credit Agreement, the First Temporary Waiver Agreement, the
Second Temporary Waiver Agreement or the Third Temporary Waiver
Agreement (as applicable).
SECTION 2.
Acknowledgements .
2.1.
Amount of Obligations.
Each Loan Party acknowledges and
agrees that (a) as of 5:00 pm New York time on the date
hereof, the Obligations include, without limitation, the amounts
set forth on Schedule 1 attached hereto on account of the
outstanding unpaid amount of principal of, accrued and unpaid
interest on, and fees and commissions related to, the Advances and
(b) such Loan Party is truly and justly indebted to the
Lenders and the Administrative Agent for, or has
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provided a guaranty for the benefit of the
Lenders and the Administrative Agent with respect to, the
Obligations without defense, counterclaim or offset of any kind,
and such Loan Party ratifies and reaffirms the validity,
enforceability and binding nature of such Obligations.
2.2.
Events of Default.Each Loan Party (a)(i) acknowledges and
agrees that the Scheduled Defaults, the Additional Default and the
Technical Default would already have occurred and be continuing but
for the Third Temporary Waiver Agreement and the Senior
Subordinated Notes Forbearance (as defined below), continuing in
full force and effect, and (ii) represents and warrants to the
Administrative Agent and the Lenders that no Default or Event of
Default (other than the Scheduled Defaults, the Additional Default
and the Technical Default) has occurred and continues to exist as
of the Fourth Waiver Effective Date (as defined below) and
(b) absent the agreement of the Lenders to extend the
temporary waiver of the Scheduled Defaults, the Additional Default
and the Technical Default, as provided in this Agreement, the
Administrative Agent and the Lenders would be entitled, following
the occurrence and during the continuance of such Scheduled
Defaults, Additional Default or Technical Default, at any time to
take any and all Enforcement Actions.
2.3.
Collateral.
Each Loan Party ratifies and
reaffirms the validity and enforceability (without defense,
counterclaim or offset of any kind) of the Liens granted to secure
any of the Obligations by such Loan Party to the Administrative
Agent, for the benefit of the Lenders, pursuant to the Collateral
Documents to which such Loan Party is a party. Each Loan
Party acknowledges and agrees that all such Liens granted by such
Loan Party shall continue to secure the Obligations from and after
the Fourth Waiver Effective Date. Each Loan Party hereby
represents and warrants to the Administrative Agent and the Lenders
that, pursuant to the Collateral Documents to which such Loan Party
is a party, the Obligations are secured by Liens on all of such
Loan Party’s assets to the extent required by the Collateral
Documents, and each Loan Party will, at the reasonable request of
the Administrative Agent or any of the Lenders, deliver to the
requesting party documents evidencing the validity and
enforceability of such Liens.
2.4.
Not an Arrangement with Creditors.
Each of the
parties hereto acknowledges that this document is a temporary
waiver in accordance with the terms hereof and should not be
construed as an arrangement by any Loan Party with its
creditors.
SECTION 3.
Temporary Waiver .
3.1.
Fourth Temporary Waiver Period.
Subject to the terms and conditions
of this Agreement, the Lenders party hereto agree to temporarily
waive the Scheduled Defaults, the Additional Default and the
Technical Default during the period from and including the Fourth
Waiver Effective Date until the earliest to occur of (the date of
such occurrence, the “ Fourth Temporary Waiver Termination
Date ”; and such period, the “ Fourth Temporary
Waiver Period ”) (a) 5:00 P.M. (New York City
time) on October 5, 2009, (b) the occurrence and
continuance of an Event of Default that is not a Scheduled Default,
an Additional Default or a Technical Default, (c) the date of
payment of the
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interest payment due and owing on August 1,
2009 (the “ Senior Subordinated Notes Interest Payment
”) to the holders under the U.S. Borrower’s 8½%
Senior Subordinated Notes due 2015 (the “ Senior
Subordinated Notes ”), (d) the date of delivery by
the U.S. Borrower of a Senior Subordinated Notes Payment Notice (as
defined below) to the Administrative Agent and the Steering
Committee, (e) the occurrence of the “Forbearance
Termination Date” under, and as defined in, that certain
Forbearance Agreement (the “ Senior Subordinated Notes
Forbearance ”), dated as of August 31, 2009, as
heretofore amended, supplemented or otherwise modified or extended,
or superseded by a new agreement entered into on substantially the
same terms and otherwise in form and substance reasonably
satisfactory to the Administrative Agent, by and among certain
holders of the Senior Subordinated Notes, the U.S. Borrower,
certain guarantors of the Senior Subordinated Notes and The Bank of
New York Mellon Trust Company (f/k/a The Bank of New York Trust
Company, N.A.), as trustee, (f) the date on which the holders
of the Senior Subordinated Notes shall exercise any rights or
remedies available under the Senior Subordinated Note Indenture or
applicable law as a result of the occurrence of any
“Default” or “Event of Default” under, and
as defined in, the Senior Subordinated Note Indenture (whether in
connection with the Additional Default or otherwise), (g) any
representation or warranty made by any Loan Party in this Agreement
proving to have been untrue, inaccurate or incomplete in any
material respect on or as of the date made or deemed made,
(h) failure of any Loan Party to perform, as and when
required, any of their respective covenants or other obligations
set forth in this Agreement (it being understood that time is of
the essence for each such covenant and obligation), including
without limitation, any provision of Section 4 below
and (i) any Loan Party shall take any action to challenge
(including without limitation, to assert in writing any challenge
to) the validity or enforceability of this Agreement or any other
Loan Document or any provision hereof or thereof.
3.2.
No Waiver; Limitation on Fourth Temporary Waiver.
Each Loan Party acknowledges and
agrees that the Lenders are only agreeing to temporarily waive the
Scheduled Defaults, the Additional Default and the Technical
Default during the Fourth Temporary Waiver Period, and after the
Fourth Temporary Waiver Termination Date, if the Scheduled
Defaults, the Additional Default and/or the Technical Default have
occurred and are continuing, the temporary waiver provided herein
shall automatically terminate without any further action or notice
by any party, and as a result, (a) the waiver in this
Agreement shall no longer constitute a waiver of the occurrence or
the continuance of any Event of Default which is a Scheduled
Default, an Additional Default or a Technical Default, and each
such Event of Default that occurs shall, after it occurs, continue
to exist after the Fourth Temporary Waiver Termination Date and
(b) nothing contained in this Agreement shall be construed to
limit or affect the right of the Administrative Agent and the
Lenders to bring or maintain during the Fourth Temporary Waiver
Period any action to enforce or interpret any term or provision of
this Agreement, or to file or record instruments of public record
(or take other action) to perfect or further protect the perfection
and/or priority of the liens and security interests granted by the
Loan Parties to the Administrative Agent and the Lenders. For
the avoidance of doubt, during the Fourth Temporary Waiver Period,
the Loan Parties and their Subsidiaries may not take any action
that would be prohibited under any Loan Document during the
occurrence of a Default or Event of Default.
3.3.
Enforcement Actions after Fourth Temporary Waiver
Period.
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Each Loan Party acknowledges and
agrees that, on the Fourth Temporary Waiver Termination Date, the
agreement of the Lenders to temporarily waive the Scheduled
Defaults, the Additional Default and the Technical Default shall
cease and be of no further force or effect, and if any Scheduled
Default, Additional Default and/or Technical Default has occurred
and is continuing at such time, the Administrative Agent and the
Lenders shall be entitled to immediately take Enforcement Actions
under the Credit Agreement, the other Loan Documents and applicable
law, all without further notice or demand, in respect of the
Scheduled Defaults, Additional Defaults and/or Technical Default
(as applicable), or any other Event of Default, then
existing.
SECTION 4.
Agreements .
To induce the Lenders to enter into
this Agreement and to temporarily waive the Scheduled Defaults, the
Additional Default and the Technical Default during the Fourth
Temporary Waiver Period, if the Scheduled Defaults, the Additional
Default and/or the Technical Default have occurred and are
continuing, the Borrowers, the other Loan Parties and the Lenders
agree as follows:
4.1.
Financial Advisor.
The Administrative Agent or the
Steering Committee shall, on behalf of the Lenders, have the right
to continue to retain or to cause its counsel to continue to retain
for its benefit a restructuring or financial advisor to assist with
the coordination and consummation of a potential amendm
