Exhibit 10.1
TEMPORARY WAIVER AGREEMENT (this
“ Agreement ”), dated as of July 1, 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 ”),
CITICORP USA, INC., a Delaware corporation (“ Citicorp
”), as administrative agent for the Lenders (in such
capacity, the “ Administrative Agent ”), is
entered into by and among the Borrowers, the Lenders and the
Administrative Agent.
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 likely occurrence of certain Events of
Default under the Credit Agreement, the Administrative Agent and
the Lenders will, if such Events of Default occur and continue, 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;
D.
WHEREAS, Citicorp, in its capacity as the existing Administrative
Agent (in such capacity, the “ Existing Administrative
Agent ”) under the Credit Agreement and the other Loan
Documents, desires to resign as Administrative Agent;
E.
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;
F.
WHEREAS, each Borrower acknowledges and agrees that it shall not
request any Advances, Letters of Credit or other extensions of
credit under the Credit Agreement during the Temporary Waiver
Period (as defined below), except as contemplated in
Section 4.7 hereof;
G.
WHEREAS, the Borrowers have requested that the Lenders agree to
temporarily waive the Scheduled Defaults (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; and
H.
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 but not defined herein
have the meanings assigned to them in the Credit
Agreement.
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 acknowledges and
agrees that (a)(i) the Events of Default set forth on Schedule
2 attached hereto (the “ Scheduled Defaults ”)
are likely to occur during the Temporary Waiver Period and
(ii) each Loan Party represents and warrants to the
Administrative Agent and the Lenders that no other Default or Event
of Default has occurred and continues to exist as of the Effective
Date (as defined below) and (b) absent the agreement of the
Lenders to temporarily waive the Scheduled Defaults as provided in
this Agreement, if the Scheduled Defaults have occurred and are
continuing, the Administrative Agent and the Lenders would be
entitled to at any time 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
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
Temporary Waiver Period . Subject to the terms and
conditions of this Agreement, the Lenders party hereto agree to
temporarily waive the Scheduled Defaults during the period from and
including the Effective Date until the earliest to occur of (the
date of such occurrence, the “ Temporary Waiver
Termination Date ”; and such period, the “
Temporary Waiver Period ”) (a) 5:00 P.M.
(New York City time) on August 15, 2009, (b) the
occurrence and continuance of an Event of Default that is not a
Scheduled Default, (c) the payment of the interest payment due
and owing on August 1, 2009 to the holders under the U.S.
Borrower’s 8½% Senior Subordinated Notes due 2015,
(d) any representation
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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, (e) 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 (f) 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 Temporary Waiver . Each Loan
Party acknowledges and agrees that the Lenders are only agreeing to
temporarily waive the Scheduled Defaults during the Temporary
Waiver Period, and after the Temporary Waiver Termination Date, if
the Scheduled Defaults have occurred and are continuing, the
temporary waiver provided herein shall terminate 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, and each such Event of Default that
occurs shall, after it occurs, continue to exist after the
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 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 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 Temporary Waiver Period .
Each Loan Party acknowledges and agrees that, on the Temporary
Waiver Termination Date, the agreement of the Lenders to
temporarily waive the Scheduled Defaults shall cease and be of no
further force or effect, and if any Scheduled 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, or any other Event of Default, then
existing.
SECTION 4.
AGREEMENTS . To induce the Administrative Agent and
the Lenders to enter into this Agreement and to temporarily waive
the Scheduled Defaults during the Temporary Waiver Period, if the
Scheduled Defaults have occurred and are continuing, the Borrowers,
the other Loan Parties, the Administrative Agent 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 hire or to cause its counsel to hire 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 the
Steering Committee, as applicable, with respect to such
restructuring or financial advisor. In connection with any
such hiring, the U.S. Borrower shall promptly execute and deliver
an engagement-related agreement which is reasonably satisfactory in
form and substance to the U.S. Borrower, which shall include an
agreement by the U.S. Borrower to be directly responsible for the
fees of such restructuring or other financial advisor 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
Effective Date, the Borrowers shall identify the locations and
amounts of material holdings by it and its Subsidiaries of
cash
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and Cash Equivalents and
take or cause to be taken such actions as the Administrative Agent
or the Steering Committee may reasonably request to assure that the
Administrative Agent for the benefit of the Lenders has a perfected
security interest therein with “control” (as defined in
the Uniform Commercial Code) with respect thereto to the extent
required pursuant to the Loan Documents.
4.3
Minimum Liquidity . From and after the Effective Date,
the U.S. Borrower shall not, directly or indirectly, at any time
permit (a) Liquidity to be less than $30,000,000 or
(b) average Liquidity for five consecutive Business Days
(“ Average Liquidity ”) to be less than
$35,000,000; provided , however , that
(i) Liquidity shall be calculated without giving effect to the
unutilized amount of Commitments of any Defaulting Lender and
(ii) if (A) Liquidity at any time is less than
$30,000,000 but greater than $28,000,000 or (B) average
Liquidity for five consecutive Business Days is less than
$35,000,000 but greater than $33,000,000, such failure shall not
constitute an Event of Default or a failure to perform its
obligations hereunder if such failure is consented to by the
Steering Committee within three Business Days after the occurrence
of such failure. Upon any Responsible Officer of the U.S.
Borrower becoming aware of the failure to satisfy the requirement
in clause (a) or (b) of the previous sentence, the U.S.
Borrower shall immediately notify the Administrative Agent and the
Steering Committee of such failure. In addition, if at any
time (x) Liquidity is less than $32,000,000 or
(y) Average Liquidity is less than $37,000,000, the U.S.
Borrower shall, on each Business Day thereafter, deliver to the
Administrative Agent and the Steering Committee a report setting
forth the Liquidity at the end of the previous Business Day and the
Average Liquidity for the five consecutive Business Days ending on
such previous day, and such daily reporting shall continue until
the U.S. Borrower delivers to the Administrative Agent a report
demonstrating that, at the end of the previous Business Day,
Liquidity is greater than $32,000,000 and Average Liquidity is
greater than $37,000,000.
4.4
Weekly Cash Flow Forecasts, Etc. The U.S. Borrower
shall deliver to the Administrative Agent and the Steering
Committee, on Thursday (or the immediately succeeding Business Day
if Thursday is not a Business Day) of each week (commencing with
the week ending on Saturday July 4, 2009), (a) a 13-week
cash flow forecast in the form of such forecast delivered to the
Steering Committee prior to the Effective Date or another form
reasonably satisfactory to the Steering Committee (the “
13-Week Cash Flow Forecast ”), (b) a
reconciliation of the cash balances of the U.S. Borrower and its
Subsidiaries between the amount shown on
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