Exhibit 10.1
THIRD TEMPORARY WAIVER AGREEMENT
(this “ Agreement ”), dated as of
September 15, 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, the Administrative Agent
and the Lenders will, if the Scheduled Defaults or the Additional
Default occur(s) and remain(s) continuing as a result of
the Second 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;
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 Third 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 the Additional Default through the Third
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, the First
Temporary Waiver Agreement or the Second 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 and the Additional Default would already have occurred and
be continuing but for the Second Temporary Waiver Agreement and the
Senior Subordinated Notes Forbearance (as defined below) continuing
in full force and effect, (ii) acknowledges and agrees that an
Event of Default occurred under Section 7.01(a)(ii) as a result of
the technical failure by the Company to pay interest of
$4,590,987.15 due on August 26, 2009 or within 5 days of such date
(the “Technical Default”) (and further acknowledges and
confirms that such amount has now been paid in full) and (iii)
represents and warrants to the Administrative Agent and the Lenders
that no Default or Event of Default (other than the Scheduled
Defaults, the Technical Default and the Additional Default) has
occurred and continues to exist as of the Third Waiver Effective
Date (as defined below) and (b) absent the agreement of the
Lenders
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to extend the temporary waiver of the Scheduled
Defaults and the Additional Default, and to waive 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, Technical Default 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 Third 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.
Third Temporary Waiver Period.
Subject to the terms and conditions of this Agreement, the Lenders
party hereto agree to temporarily waive the Scheduled Defaults, the
Technical Default and the Additional Default during the period from
and including the Third Waiver Effective Date until the earliest to
occur of (the date of such occurrence, the “ Third
Temporary Waiver Termination Date ”; and such period, the
“ Third Temporary Waiver Period ”)
(a) 5:00 P.M. (New York City time) on September 30,
2009, (b) the occurrence and continuance of an Event of
Default that is not a Scheduled Default, a Technical 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
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, 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
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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,
(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, and
(j) 5:00 P.M. (New York City time) on September 25,
2009 unless the U.S. Borrower shall have entered into a plan
support, lock-up or similar restructuring agreement with at least
one of its principal stakeholder groups (i.e., the holders of the
Senior Subordinated Notes or the Last Out Lenders), which agreement
shall be in form and substance reasonably satisfactory to the
Steering Committee; provided that the deadline set forth in
this clause (j) may be waived or extended with the consent of
the Steering Committee.
3.2.
No Waiver; Limitation on Third
Temporary Waiver. Each Loan Party acknowledges and agrees
that the Lenders are only agreeing to temporarily waive the
Scheduled Defaults, the Technical Default and the Additional
Default during the Third Temporary Waiver Period, and after the
Third Temporary Waiver Termination Date, if the Scheduled Defaults,
the Technical Default 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, a Technical
Default or an Additional Default, and each such Event of Default
that occurs shall, after it occurs, continue to exist after the
Third 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 Third 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 Third 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 Third
Temporary Waiver Period. Each Loan Party acknowledges and
agrees that, on the Third Temporary Waiver Termination Date, the
agreement of the Lenders to temporarily waive the Scheduled
Defaults, the Technical Default and the Additional Default shall
cease and be of no further force or effect, and if any Scheduled
Default, Technical 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, Technical 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, the Technical Default and the Additional Default during
the Third Temporary Waiver Period, if the Scheduled Defaults, the
Technical Default and/or the Additional Default have occurred and
are continuing, the Borrowers, the other Loan Parties and the
Lenders agree as follows:
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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 the Steering
Committee, as applicable, with respect to such restruct
