Exhibit 10.2
EXECUTION COPY
SECOND TEMPORARY WAIVER AGREEMENT
(this “ Agreement ”), dated as of
August 14, 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 CITICORP USA, INC., as
administrative agent for the Lenders (in such capacity, 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, the Administrative
Agent 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, the additional Event of Default set forth in Schedule 2
attached hereto (the “ Additional Default ”) is
expected to occur on or before the Second Temporary Waiver
Termination Date (as defined below);
E.
WHEREAS, the Administrative Agent and the Lenders will, if the
Scheduled Defaults occur and remain continuing as a result of the
First Temporary Waiver Termination Date occurring or the Additional
Default occurs and remains continuing, 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;
F.
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;
G.
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 Second Temporary
Waiver Period (as defined below), except as contemplated in
Section 4.7 hereof;
H.
WHEREAS, the Borrowers have requested that the Lenders agree to
extend the temporary waiver of the Scheduled Defaults and
temporarily waive the Additional Default through the Second
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
I.
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 or the First 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 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
would already have occurred and be continuing but for the First
Temporary Waiver Agreement continuing in full force and effect,
(ii) acknowledges and agrees that the Additional Default is
likely to occur during the Second Temporary Waiver Period and
(iii) represents and warrants to the Administrative Agent and
the Lenders that no Default or Event of Default (other than the
Scheduled Defaults and the Additional Default) has occurred and
continues to exist as of the Second Waiver Effective Date (as
defined below) and (b) absent the agreement of the Lenders to
extend the temporary waiver of the Scheduled Defaults and to
temporarily waive the Additional Default as provided in this
Agreement, the Administrative Agent and the Lenders would be
entitled, following the occurrence and during the continuance
of
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such Scheduled Defaults or Additional 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
Second 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
Second Temporary Waiver Period . Subject to the terms
and conditions of this Agreement, the Lenders party hereto agree to
temporarily waive the Scheduled Defaults and the Additional Default
during the period from and including the Second Waiver Effective
Date until the earliest to occur of (the date of such occurrence,
the “ Second Temporary Waiver Termination Date
”; and such period, the “ Second Temporary Waiver
Period ”) (a) 5:00 P.M. (New York City time) on
September 15, 2009, (b) the occurrence and continuance of
an Event of Default that is not a Scheduled Default or an
Additional Default, (c) the date of payment of the 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
failure by the U.S. Borrower to obtain a temporary waiver or
forbearance, in form and substance reasonably satisfactory to the
Administrative Agent and the Steering Committee (the “
Senior Subordinated Notes Waiver ”), from the holders
of the Senior Subordinated Notes within five (5) Business Days
following the expiration of any grace period applicable to any
default under the Senior Subordinated Notes as a result of the U.S.
Borrower’s failure to make the Senior Subordinated Notes
Interest Payment, (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
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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 Second Temporary Waiver .
Each Loan Party acknowledges and agrees that the Lenders are only
agreeing to temporarily waive the Scheduled Defaults and the
Additional Default during the Second Temporary Waiver Period, and
after the Second Temporary Waiver Termination Date, if the
Scheduled Defaults and/or the Additional 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 or an
Additional Default, and each such Event of Default that occurs
shall, after it occurs, continue to exist after the Second
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 Second 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 Second 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 Second Temporary Waiver Period
. Each Loan Party acknowledges and agrees that, on the Second
Temporary Waiver Termination Date, the agreement of the Lenders to
temporarily waive the Scheduled Defaults and the Additional Default
shall cease and be of no further force or effect, and if any
Scheduled Default and/or Additional 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 and/or Additional 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 and the
Additional Default during the Second Temporary Waiver Period, if
the Scheduled Defaults and/or the Additional 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 amendment to or
restructuring of the Credit Agreement, and the U.S. Borrower shall
be liable for all costs and expenses incurred by the Administrative
Agent or
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the Steering Committee, as applicable, with
respect to such restructuring or financial advisor. In
connection with such retention, the U.S. Borrower shall maintain in
full force and effect the previously executed engagement-related
agreement with such restructuring or financial advisor, which
includes an agreement by the U.S. Borrower to be directly
responsible for the fees of such restructuring or other financial
advisor, to pay such fees promptly upon being invoiced therefor and
to use its commercially reasonable efforts to cooperate, and to
cause its own advisors and its Subsidiaries to cooperate with such
restructuring or other financial advisor in the performance of its
duties as an advisor in accordance with such engagement-related
agreement.
4.2
Cash and Cash Equivalents . Promptly following the
Second Waiver Effective Date, the Borrowers shall confirm the
locations and amounts of material holdings by it and its
Subsidiaries of cash and C
