EXECUTION COPY
SECOND AMENDED AND RESTATED PLEDGE AGREEMENT
Dated as of July 27, 2001
From
ACCURIDE CORPORATION
ACCURIDE CANADA, INC.
ACCURIDE VENTURES, INC.
AND
THE PLEDGORS REFERRED TO HEREIN
AS PLEDGORS
to
CITICORP USA, INC.
AS ADMINISTRATIVE AGENT
TABLE OF CONTENTS
SECTION PAGE
SECTION 1. Grant of Security...............................................................................2
SECTION 2. Security for Obligations........................................................................4
SECTION 3. Delivery of Security Collateral and Account Collateral; Consent to Pledge.......................4
SECTION 4. Establishment and Maintenance of the Cash Collateral Accounts...................................6
SECTION 5. Investing of Amounts in the Cash Collateral Accounts............................................6
SECTION 6. Release of Amounts..............................................................................7
SECTION 7. Representations and Warranties..................................................................7
SECTION 8. Further Assurances..............................................................................8
SECTION 9. Place of Perfection; Records....................................................................9
SECTION 10. Voting Rights; Dividends; Etc...................................................................9
SECTION 11. Transfers and Other Liens......................................................................10
SECTION 12. Administrative Agent Appointed Attorney-in-Fact................................................10
SECTION 13. Administrative Agent May Perform...............................................................11
SECTION 14. The Administrative Agent's Duties..............................................................11
SECTION 15. Remedies ......................................................................................11
SECTION 16. Acknowledgments Relating to Security Collateral and Account Collateral.........................13
SECTION 17. Indemnity and Expenses.........................................................................14
SECTION 18. Amendments; Waivers; Pledge Agreement Supplement; Etc..........................................14
SECTION 19. Addresses for Notices..........................................................................15
SECTION 20. Continuing Security Interest; Assignments Under the Credit Agreement...........................15
SECTION 21. Release and Termination........................................................................15
SECTION 22. Security Interest Absolute.....................................................................16
SECTION 23. Severability...................................................................................16
SECTION 24. Execution in Counterparts......................................................................16
SECTION 25. Governing Law; Terms...........................................................................17
SCHEDULES
Schedule I - Initial Pledged Interests
Schedule II - Jurisdiction of Organization
EXHIBITS
Exhibit A - Form of Cash Collateral Account Letter
Exhibit B - Form of Pledge Agreement Supplement
SECOND AMENDED AND RESTATED
PLEDGE AGREEMENT
SECOND AMENDED AND RESTATED
PLEDGE AGREEMENT dated as of July 27, 2001
made by
ACCURIDE CORPORATION, a Delaware corporation (the "U.S. BORROWER"),
ACCURIDE CANADA, INC., a corporation organized and existing under the laws of
the Province of Ontario, Canada (the "CANADIAN BORROWER"), ACCURIDE VENTURES,
INC., a Delaware corporation ("ACCURIDE VENTURES"), and each of the other
Persons listed on the signature pages hereof (together with the U.S. Borrower,
the Canadian Borrower, Accuride Ventures, and each of the Additional Pledgors
(as defined in Section 18(b) below), collectively the "PLEDGORS" and each
individually a "PLEDGOR"), to CITICORP USA, INC. ("CUSA"), as administrative
agent (the "ADMINISTRATIVE AGENT") for the Lenders and the other Secured Parties
(each as defined in the Credit Agreement referred to below).
PRELIMINARY STATEMENTS:
(1) The U.S. Borrower and the Canadian Borrower entered into a
Pledge Agreement dated January 21, 1998 (the "ORIGINAL
PLEDGE AGREEMENT") in
favor of the Administrative Agent, pursuant to which the U.S. Borrower pledged
the Initial Pledged Shares (as defined therein).
(2) The U.S. Borrower, the Canadian Borrower and Accuride Ventures
entered into an Amended and Restated
Pledge Agreement dated April 16, 1999 (the
"EXISTING
PLEDGE AGREEMENT") in favor of the Administrative Agent, pursuant to
which the U.S. Borrower and Accuride Ventures pledged the Initial Pledged
Interests (as defined therein).
(3) The Lender Parties, the Administrative Agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Inc., as arranger, Bankers Trust Company, as syndication agent, and ▇▇▇▇▇
Fargo Bank N.A., as documentation agent, have entered into a Second Amended and
Restated Credit Agreement dated as of July 27, 2001 (said Second Amended and
Restated Credit Agreement, as it may hereafter be amended, supplemented or
otherwise modified from time to time, being the "CREDIT AGREEMENT"; the terms
defined therein and not otherwise defined herein being used herein as therein
defined) with the U.S. Borrower and the Canadian Borrower.
(4) The Borrowers may have invested in, or may from time to time
hereafter invest in, Hedge Agreements with one or more Lenders to obtain
protection against fluctuations in the interest rates applicable to outstanding
Advances to the extent permitted by Section 5.02(b)(i)(B) of the Credit
Agreement (collectively, the "BANK HEDGE AGREEMENTS").
(5) Each Pledgor is the owner of the type, number and percentage of
the issued and outstanding shares of stock, limited liability company membership
interests, partnership interests and other equity interests set forth opposite
name of such Pledgor and described on Schedule I hereto.
(6) Within 30 days of the Effective Date, (a) the U.S. Borrower
shall have opened a cash collateral account (the "U.S. BORROWER CASH COLLATERAL
ACCOUNT") with Citibank, N.A. ("CITIBANK") at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and (b) the Canadian Borrower shall have opened a cash
collateral account (the "CANADIAN BORROWER CASH COLLATERAL ACCOUNT" and,
together with the U.S. Borrower Cash Collateral Account, the "CASH COLLATERAL
ACCOUNTS") with Citibank at its Affiliate's offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇. Each of the Cash Collateral Accounts shall have been
opened in the name of applicable Borrower pursuant to, and for the purpose set
forth in Section 2.06(b)(vii) of the Credit Agreement, Section 15(e) of this
Agreement and Section 18(d) of the Security Agreement, and is under the sole and
exclusive dominion and control of the Administrative Agent and subject to the
terms of this Agreement.
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(7) It is a condition precedent to the effectiveness of the Credit
Agreement and the making of Advances by the Lenders under the Credit Agreement
that the Existing
Pledge Agreement shall be amended and restated so that, in
addition to the Initial Pledged Interests (as defined in the Existing Pledge
Agreement), (i) the U.S. Borrower shall pledge 100% of the shares of stock of
Accuride Cuyahoga Falls Inc., a Delaware corporation, (ii) Accuride Kentucky
Holding Company, a Delaware corporation, shall pledge 100% of the shares of
stock of Accuride ▇▇▇▇▇▇▇▇▇ Facilities Management Corporation, a Delaware
corporation ("▇▇▇▇▇▇▇▇▇ MANAGEMENT"), (iii) Accuride Tennessee Holding Company,
a Delaware corporation, shall pledge 100% of the shares of stock of Accuride
Columbia Facilities Management Corporation, a Delaware corporation ("COLUMBIA
MANAGEMENT"), (iv) Accuride Ventures and ▇▇▇▇▇▇▇▇▇ Management shall pledge 100%
of the limited liability company membership interests in Accuride ▇▇▇▇▇▇▇▇▇
Limited Liability Company, a Delaware limited liability company ("▇▇▇▇▇▇▇▇▇
LLC"), and (v) Accuride Ventures and Columbia Management shall pledge 100% of
the partnership interests in Accuride Columbia General Partnership ("COLUMBIA
GP").
NOW, THEREFORE, in consideration of the premises, each Pledgor hereby
agrees with the Administrative Agent for its benefit and the ratable benefit of
the Secured Parties as follows, and that the Existing Pledge Agreement is
amended and restated in its entirety to read as follows:
SECTION 1. GRANT OF SECURITY. Each Pledgor hereby assigns and
pledges to the Administrative Agent for its benefit and the ratable benefit of
the Secured Parties, and hereby grants to the Administrative Agent for its
benefit and the ratable benefit of the Secured Parties a security interest in,
the following (collectively, the "Collateral"):
(a) all of the following (the "SECURITY COLLATERAL"):
(i) the shares of stock, limited liability company membership
interests, partnership interests and other equity interests set forth
opposite such Pledgor's name on Schedule I hereto and issued by the
Persons named therein (such shares, limited liability company
membership interests, partnership interests and other equity interests
being collectively referred to herein as the "INITIAL PLEDGED
INTERESTS", and, together with the Additional Pledged Interests
referred to in clause (ii) below and the shares, limited liability
company membership interests, partnership interests and other equity
interests referred to in clause (iii) below, the "PLEDGED INTERESTS"),
whether or not evidenced by certificates, and all certificates, if
any, representing Initial Pledged Interests and all dividends,
distributions, cash, instruments and other property and assets from
time to time received, receivable or otherwise distributed in respect
of or in exchange for any or all of the Pledged Interests;
(ii) the Additional Pledged Interests as defined and described
in each Pledge Agreement Supplement (as defined in Section 18(b)
hereof) executed by such Pledgor, whether or not evidenced by
certificates, and all certificates, if any, representing such Pledged
Interests and all dividends, distributions, cash, instruments and
other property and assets from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of
such Additional Pledged Interests;
(iii) all additional shares of stock, limited liability company
membership interests, partnership interests and other equity interests
in any issuer or issuers of Pledged Interests from time to time
acquired by such Pledgor in any manner, whether or not evidenced by
certificates, and all certificates, if any, representing such Pledged
Interests and all dividends, distributions, cash, instruments and
other property and assets from time to time received, receivable or
otherwise distributed in respect of or in
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exchange for any or all ofsuch shares; PROVIDED, HOWEVER, that such
Pledgor shall not be required to pledge any shares of stock, limited
liability companymembership interests, partnership interests or other
equity interestowned by it in any Foreign Subsidiary, other than the
Canadian Borrower (subject, however, to the PROVISO to Section 2
hereof), to the extent that such pledge, when aggregated with all of
the other shares, limited liability company membership interests,
partnership interests or other equity interests in such Subsidiary
pledged by such Pledgor and the other Pledgors would result in more
than 66% of the voting shares, limited liability company membership
interests, partnership interests and other equity interests (within
the meaning of Treasury Regulation Section 1.956-2(c)(2) promulgated
under the Internal Revenue Code) (the "VOTING INTERESTS") being
pledged to the Administrative Agent on behalf of itself and the
Secured Parties under this Agreement; and PROVIDED FURTHER that if as
a result of any change in the tax laws of the United States after the
date of this Agreement, the pledge by such Pledgor of any additional
shares of stock, limited liability company membership interests or
partnership interests or other equity interests in such Subsidiary
would not result in an increase in the aggregate net consolidated tax
liabilities of the U.S. Borrower and its Subsidiaries, then, promptly
after the change in such laws, such Pledgor shall pledge all such
additional shares of stock, limited liability company membership
interests or partnership interests and other equity interests to the
Administrative Agent under this Agreement; and
(iv) all of the Debt from time to time owed to such Pledgor
(including, without limitation, such Pledgor that is an Additional
Pledgor) by any Person in an aggregate principal amount in excess of
$5,000,000 incurred in connection with a transaction permitted by
Section 5.02(d)(ii) of the Credit Agreement, and all of the
instruments evidencing such Debt, all security therefor and all
interest, cash, instruments and other property and assets from time to
time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such Debt;
(b) all of the following (collectively, the "ACCOUNT COLLATERAL"):
(i) in the case of the U.S. Borrower and all of its
Restricted Subsidiaries (other than the Canadian Borrower) party to
this Agreement, the U.S. Borrower Cash Collateral Account, all of the
funds held therein and all of the certificates and instruments, if
any, from time to time representing or evidencing the U.S. Borrower
Cash Collateral Account;
(ii) in the case of the Canadian Borrower, the Canadian
Borrower Cash Collateral Account, all of the funds held therein and
all of the certificates and instruments, if any, from time to time
representing or evidencing the Canadian Borrower Cash Collateral
Account;
(iii) all of the Collateral Investments (as defined in Section
5(b)) made on behalf of such Pledgor from time to time and all of the
certificates and instruments, if any, from time to time representing
or evidencing any of the Collateral Investments made on behalf of such
Pledgor;
(iv) all of the notes, certificates of deposit, deposit
accounts, checks and other instruments from time to time hereafter
delivered to or otherwise possessed by the Administrative Agent for or
on behalf of such Pledgor in respect of or in exchange for any or all
of the then existing Account Collateral; and
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(v) all of the interest, dividends, distributions, cash,
instruments and other property and assets from time to time received,
receivable or otherwise distributed in respect of or in exchange for
any or all of the then existing Account Collateral; and
(c) all of such Pledgor's right, title and interest, if any, whether
enow owned or hereafter acquired, in the AKW LP Agreement, the ▇▇▇▇▇▇▇▇▇
LLC Agreement, the Columbia GP Agreement, and the AKW LLC Agreement, in
each case as such agreement may be amended, supplemented or otherwise
modified from time to time (collectively, the "ASSIGNED AGREEMENTS"),
including, without limitation, whether now existing or hereafter acquired
or arising, (i) all rights of such Pledgor to receive monies and other
property or assets due and to become due to such Pledgor under or pursuant
to any of the Assigned Agreements, (ii) all claims of such Pledgor for
damages arising out of or default under any Assigned Agreement, (iii) all
rights of such Pledgor to receive proceeds of any insurance, indemnity,
warranty or guaranty with respect to any Assigned Agreement, (iv) all
rights of such Pledgor to perform under any Assigned Agreement and to
receive and compel performance and otherwise exercise all remedies
thereunder and (v) any and all other rights, interests and claims of such
Pledgor under, relating to or arising in connection with the Assigned
Agreements; and
(d) all proceeds of any and all of the foregoing Collateral
(including, without limitation, proceeds that constitute property of the
types described in clauses (a) through (c) of this Section 1).
SECTION 2. SECURITY FOR OBLIGATIONS. (a) The pledge and assignment
of and the grant of a security interest in the Collateral by each Pledgor, other
than the Canadian Borrower, under this Agreement secure the payment of all
Obligations of each Loan Party now or hereafter existing under the Loan
Documents, whether for principal, interest, fees, indemnities, costs, expenses
or otherwise (all such Obligations, including the Canadian Secured Obligations,
being the "SECURED OBLIGATIONS" of each such Loan Party); provided, however,
that the pledge and assignment by the U.S. Borrower of and the grant by the U.S.
Borrower of a security interest in the Pledged Interests issued by the Canadian
Borrower shall be limited as follows: (i) the pledge and assignment of and the
grant of a security interest in 66%, and only 66%, of such Pledged Interests
secure the payment of the Obligations of the U.S. Borrower now or hereafter
existing under the Loan Documents other than the Obligations of the U.S.
Borrower under the Guaranty and (ii) the pledge and assignment of and the grant
of a security interest in 100% of such Pledged Interests secure the payment by
the U.S. Borrower pursuant to the Guaranty of the Guaranteed Obligations of the
Canadian Borrower now or hereafter existing under the Loan Documents.
(b) Notwithstanding anything to the contrary herein, the pledge and
assignment of and the grant of a security interest in the Collateral by the
Canadian Borrower and its Restricted Subsidiaries, if any, secures the payment
of all Obligations of the Canadian Borrower now or hereafter existing under the
Loan Documents, whether direct or indirect, absolute or contingent, and whether
for principal, reimbursement obligations, interest, fees, premiums, penalties,
indemnifications, contract causes of action, costs, expenses or otherwise (all
such Obligations being the "CANADIAN SECURED OBLIGATIONS").
SECTION 3. DELIVERY OF SECURITY COLLATERAL AND ACCOUNT COLLATERAL;
CONSENT TO PLEDGE. (a) All certificates or instruments representing or
evidencing Security Collateral and the Account Collateral shall be delivered to
and held by or on behalf of the Administrative Agent pursuant hereto and shall
be in suitable form for transfer by delivery, or shall be accompanied by duly
executed instruments of transfer or assignment in blank, all in form and
substance reasonably satisfactory to the Administrative Agent. Each Pledgor
shall, in respect of each Pledged Interest pledged by it hereunder and not
evidenced by a certificate or instrument, deliver to the Administrative Agent
(i) an assignment in blank referred to in
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Section 3.04(b)(ii)(A) of the Credit Agreement with respect to
such Pledged Interest and (ii) financing statements referred to in Section
3.04(b)(ii)(B) of the Credit Agreement covering such Pledged Interest. The
Administrative Agent shall have the right, at any time upon the occurrence and
continuance of a Default under Section 7.01(a) or (f) of the Credit Agreement or
upon the occurrence of an Event of Default, in its sole discretion and without
notice to any Pledgor, to transfer to or to register in the name of the
Administrative Agent or any of its nominees any or all of the Security
Collateral or the Account Collateral, subject only to the revocable rights
specified in Section 10(a). In addition, the Administrative Agent shall have the
right at any time to exchange certificates or instruments representing or
evidencing Security Collateral or the Account Collateral for certificates or
instruments of smaller or larger denominations.
(b) In the case of the Pledged Interests of the Canadian Borrower,
the U.S. Borrower hereby agrees to deliver or cause to be delivered to the
Administrative Agent any consent required under the articles of incorporation of
the Canadian Borrower to the transfer of the Pledged Interests of the Canadian
Borrower to the Administrative Agent effected by Section 1(a) hereof,
concurrently with the delivery of duly executed instruments of transfer or
assignment in blank in respect of such Pledged Interests in accordance with
Section 3(a).
(c) Each Pledgor shall (i) cause each of the issuers of the Pledged
Interests owned by such Pledgor not to issue any shares of stock, limited
liability company membership interests, partnership interests or other equity
interests in addition to or in substitution for the Pledged Interests except to
such Pledgor, and (ii) deliver or otherwise transfer to the Administrative Agent
hereunder pursuant to subsections (a) and (b) above, immediately upon its
acquisition (directly or indirectly) thereof, any and all additional shares of
stock, limited liability company membership interests, partnership interests or
other equity interests of each of such issuers, subject to the PROVISOS
contained in Section 1(a)(iii) of this Agreement.
(d) The U.S. Borrower and Accuride Ventures, as members of AKW LLC
and limited partners of AKW LP, hereby (i) consent, for purposes of Article 9 of
the AKW LLC Agreement and Article 9 of the AKW LP Agreement, to the assignment
and pledge hereunder of, and the grant hereunder of security interests in, the
Pledged Interests issued by AKW LLC and AKW LP and to the assignment, sale or
other disposition of such Pledged Interests pursuant to Section 15 hereof and
the transferee of such assignment, sale or other disposition becoming a
Substituted Member under the AKW LLC Agreement and a Substituted Limited Partner
under the AKW LP Agreement and (ii) agree that the provisions of Sections 9.2
through 9.6 of the AKW LLC Agreement and Sections 9.2 through 9.6 of the AKW LP
Agreement shall not apply to the assignment or pledge hereunder of, or the grant
hereunder of security interests in, the Pledged Interests issued by AKW LLC and
AKW LP, or the assignment, sale or other disposition of such Pledged Interests
pursuant to Section 15 hereof, and in that connection waive all of their rights
under such provisions with respect to such assignment, pledge and grant and such
assignment, sale and other disposition.
(e) Accuride Ventures and ▇▇▇▇▇▇▇▇▇ Management, as members of
▇▇▇▇▇▇▇▇▇ LLC, hereby consent, for purposes of Section 12 of the ▇▇▇▇▇▇▇▇▇ LLC
Agreement, to the assignment and pledge hereunder of, and the grant hereunder of
security interests in, the Pledged Interests issued by ▇▇▇▇▇▇▇▇▇ LLC and to the
assignment, sale or other disposition of such Pledged Interests pursuant to
Section 15 hereof and the transferee of such assignment, sale or other
disposition becoming a [Substituted Member] under the ▇▇▇▇▇▇▇▇▇ LLC Agreement.
(f) Accuride Ventures and Columbia Management, as general partners
of Columbia GP, hereby consent, for purposes of Section 15 of the Columbia GP
Agreement, to the assignment and pledge hereunder of, and the grant hereunder of
security interests in, the Pledged Interests issued by
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Columbia GP and to the assignment, sale or other disposition of such Pledged
Interests pursuant to Section 15 hereof and the transferee of such assignment,
sale or other disposition becoming a [Substituted Partner] under the Columbia GP
Agreement.
SECTION 4. ESTABLISHMENT AND MAINTENANCE OF THE CASH COLLATERAL
ACCOUNTS. So long as any of the Advances shall remain unpaid, any Letter of
Credit shall be outstanding or any of the Lender Parties shall have any
Commitment under the Credit Agreement:
(a) each of the Borrowers will maintain its Cash Collateral Account
with Citibank in accordance with the terms of this Agreement and the letter
agreement dated as of the Effective Date (each, a "CASH COLLATERAL ACCOUNT
LETTER") among such Borrower, Citibank and the Administrative Agent, which
agreement is in substantially the form of Exhibit A hereto or otherwise in
form and substance reasonably satisfactory to the Administrative Agent. The
Administrative Agent shall have sole and exclusive dominion and control of
each Cash Collateral Account subject to the terms of this Agreement.
(b) It shall be a term and condition of each Cash Collateral
Account, notwithstanding any term or condition to the contrary in any other
agreement relating to such Cash Collateral Account, that no amount
(including, without limitation, interest on Collateral Investments related
thereto) shall be paid or released to or for the account of, or withdrawn
by or for the account of, any of the Pledgors or any other Person from such
Cash Collateral Account, except as otherwise provided in Sections 6 and 15.
Each Cash Collateral Account shall be subject to such applicable laws
(including, without limitation, such applicable regulations of the Board of
Governors of the Federal Reserve System and of any other appropriate
banking authority or other governmental authority) as are in effect from
time to time.
SECTION 5. INVESTING OF AMOUNTS IN THE CASH COLLATERAL ACCOUNTS. (a) If
requested by the applicable Borrower, the Administrative Agent will, subject to
the provisions of Sections 6 and 15, from time to time, so long as no Default
under Section 7.01(a) or 7.01(f) of the Credit Agreement or Event of Default has
occurred and is continuing, (i) invest amounts on deposit in the Cash Collateral
Account of such Borrower in such Cash Equivalents as such Borrower may select,
in each case which investments shall be made in the name of, and with the
entitlement holder being, the Administrative Agent, on behalf of such Borrower,
and (ii) invest interest paid on the Cash Equivalents referred to in clause (i)
above, and reinvest other proceeds of any such Cash Equivalents that may mature
or be sold, in each case in such Cash Equivalents as such Borrower may select,
in each case which investments shall be made in the name of, and with the
entitlement holder being, the Administrative Agent, on behalf of such Borrower
(the Cash Equivalents referred to in clauses (i) and (ii) of this Section 5(a)
being, collectively, the "BORROWERS' COLLATERAL INVESTMENTS").
(b) Upon the occurrence and during the continuance of a Default
under Section 7.01(a) or 7.01(f) of the Credit Agreement or an Event of Default,
the Administrative Agent may, subject to the provisions of Section 15, from time
to time (i) invest amounts on deposit in each Cash Collateral Account, and any
cash proceeds collected by or on behalf of the Administrative Agent and held
pursuant to Section 15(e), in such Cash Equivalents as the Administrative Agent
may select, in each case which investments shall be made in the name of, and
with the entitlement holder being, the Administrative Agent, on behalf of the
applicable Pledgors, and (ii) invest interest paid on the Cash Equivalents
referred to in clause (i) above, and reinvest other proceeds of any such Cash
Equivalents that may mature or be sold, in such Cash Equivalents as the
Administrative Agent may select, in each case which investments shall be made in
the name of, and with the entitlement holder being, the Administrative Agent, on
behalf
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of the applicable Pledgors (the Cash Equivalents referred to in clauses (i) and
(ii) of this Section 5(b), together with the Borrowers' Collateral Investments,
being, collectively, the "COLLATERAL INVESTMENTS").
(c) Interest and proceeds that are not invested or reinvested in
Collateral Investments as provided in subsection (a) or (b) of this Section 5
shall be deposited and held in the applicable Cash Collateral Account.
(d) The Administrative Agent shall not have any liability to any of
the Pledgors or any of the other Secured Parties for, or as a result of, any
losses suffered from any Collateral Investment made by it in accordance with
this Section 5 or if the earnings realized on any such Collateral Investment are
less than otherwise could have been achieved had other Cash Equivalents been
selected by the Borrowers or the Administrative Agent pursuant to the terms of
subsection (a) or (b), respectively, of this Section 5.
(e) All of the Collateral Investments made in respect of the Cash
Collateral Accounts and all interest and income received thereon and therefrom,
and the net proceeds realized upon the maturity or sale thereof, shall be held
in the Cash Collateral Account as Account Collateral, which amounts may be
released solely in accordance with the provisions of Sections 6 and 15.
SECTION 6. RELEASE OF AMOUNTS. (a) The Administrative Agent is
hereby authorized, without any further action by or notice to or from any of the
Borrowers, to maintain any amounts deposited into the Cash Collateral Account of
any such Borrower pursuant to Section 2.06(b)(vii) of the Credit Agreement until
the last day of the Interest Period then in effect for any outstanding
Eurodollar Rate Advances and, on such last day, to pay and release such amounts
from such Cash Collateral Account for the prepayment to each of the Appropriate
Lenders (other than the Declining Lenders) of the Eurodollar Rate Advances
outstanding on such day in accordance with Section 2.06(b) of the Credit
Agreement, with any excess amounts in such Cash Collateral Account to be
transmitted to the account designated by the applicable Borrower, PROVIDED that
no Default under section 7.01(a) or (f) of the Credit Agreement or no Event of
Default has occurred and is continuing.
(b) Subject to clause (a) above, so long as no Default under Section
7.01(a) or (f) of the Credit Agreement or no Event of Default shall have
occurred and be continuing, the Administrative Agent will pay and release to the
applicable Borrower or at its order and at the request of such Borrower, the
amount, if any, by which the credit balance of the Cash Collateral Account of
such Borrower exceeds all amounts then due and payable by such Borrower under
the Loan Documents together with all accrued and unpaid interest and fees under
the Credit Agreement.
SECTION 7. REPRESENTATIONS AND WARRANTIES. Each Pledgor represents
and warrants as follows:
(a) The chief executive office of such Pledgor and the office where
such Pledgor keeps its records concerning the Collateral is located at the
address set forth beneath the name of such Pledgor on the signature pages
hereof (or, in the case of any Additional Pledgors at the address set forth
beneath the name of such Additional Pledgor on the signature page of the
Pledge Agreement Supplement (as defined in Section 18(b) below)).
(b) the jurisdiction of organization of such Pledgor is the
jurisdiction set forth on Schedule II hereto.
(c) Such Pledgor is the sole legal and beneficial owner of the
Collateral pledged by such Pledgor hereunder, free and clear of any Lien,
except for the security interest created by this
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Agreement. No effective financing statement or other instrument similar
in effect covering all or any part of the Collateral is on file in any
recording office, except such as may have been filed in favor of the
Administrative Agent relating to this Agreement or as otherwise
permitted under Section 5.02(a) of the Credit Agreement.
(d) The Pledged Interests owned by such Pledgor have been duly
authorized and validly issued and, to the extent such Pledged Interests
constitute shares of stock, are fully paid and non-assessable, and, in the
case of such Pledged Interests issued by AKW LLC, ▇▇▇▇▇▇▇▇▇ LLC, Columbia
GP, and AKW LP, are not represented by certificates.
(e) The Pledged Interests owned by such Pledgor constitute the
percentage of the issued outstanding shares of stock, limited liability
company membership interests and partnership interests, as the case may be,
of the issuers thereof indicated on Schedule I hereto.
(f) This Agreement, and the delivery of and other actions taken with
respect to the Security Collateral pursuant to Section 3 (including,
without limitation, the proper filing of the financing statements referred
to therein with respect to the Pledged Interests issued by AKW LLC,
▇▇▇▇▇▇▇▇▇ LLC, Columbia GP, and AKW LP, under the Uniform Commercial Code
of the applicable jurisdiction), create a valid and perfected first
priority security interest in the Collateral pledged by such Pledgor
hereunder, securing the payment of the Secured Obligations of such Pledgor,
and all filings and other actions necessary to perfect such security
interest have been duly taken and are in full force and effect or will be
made or taken in accordance with the terms of the Loan Documents, and all
filing and recording fees and taxes related to any of the foregoing have
been or will upon each filing be duly paid in full.
(g) No consent of any other Person and no authorization, approval or
other action by, and no notice to or filing with, any governmental
authority or regulatory body or other third party is required either (i)
for the grant by such Pledgor of the security interest in the Collateral
granted hereby or for the execution, delivery or performance of this
Agreement by such Pledgor, (ii) for the perfection of the security interest
in the Collateral granted by such Pledgor hereunder (including the first
priority nature of such pledge, assignment or security interest) or (iii)
for the exercise by the Administrative Agent of any voting or other rights
provided for in this Agreement or the remedies in respect of the Collateral
pursuant to this Agreement, except as may be required in connection with
the disposition of any portion of the Security Collateral by laws affecting
the offering and sale of securities generally.
SECTION 8. FURTHER ASSURANCES. (a) Each of the Pledgors agrees from
time to time, at its sole expense, to promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary or
desirable, or that the Administrative Agent may reasonably request, in order to
perfect and protect any pledge, assignment or security interest granted or
purported to be granted hereby or to enable the Administrative Agent to exercise
and enforce its rights and remedies hereunder with respect to any Collateral.
Without limiting the generality of the foregoing, each Pledgor will: (i) ▇▇▇▇,
at the request of the Administrative Agent, each of its records pertaining to
the Collateral with a legend, in form and substance satisfactory to the
Administrative Agent, indicating that such Collateral is subject to the security
interest granted hereby; (ii) if any Collateral shall be evidenced by a
promissory note or other instrument, deliver and pledge to the Administrative
Agent hereunder such note or instrument duly indorsed and accompanied by duly
executed instruments of transfer or assignment, all in form and substance
satisfactory to the Administrative Agent; and (iii) execute and file such
financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as the
Administrative Agent may reasonably request, in order to perfect and preserve
the pledge, assignment and security interest granted or purported to be granted
hereby.
9
(b) Each Pledgor hereby authorizes the Administrative Agent to file
one or more financing or continuation statements, and amendments thereto,
relating to all or any part of the Collateral without the signature of such
Pledgor where permitted by law. A photocopy or other reproduction of this
Agreement or any financing statement covering the Collateral or any part thereof
shall be sufficient as a financing statement where permitted by law.
(c) Each Pledgor will furnish to the Administrative Agent from time
to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Administrative Agent may reasonably request, all in reasonable detail.
SECTION 9. PLACE OF PERFECTION; RECORDS. (a) Each Pledgor shall keep
its chief executive office and the office where it keeps its records concerning
the Collateral at the location therefor specified in Section 7(a) or, upon 30
days' prior written notice to the Administrative Agent, at such other locations
in a jurisdiction where all actions required by Section 8 shall have been taken
with respect to the Collateral. Each Pledgor will hold and preserve such records
and will permit representatives of the Administrative Agent at any time during
normal business hours upon reasonable notice to inspect and make abstracts from
such records.
(b) Each Pledgor shall keep its jurisdiction of organization at the
location therefor specified in accordance with Section 7(b) or, upon 30 days
prior written notice to the Administrative Agent in such other jurisdiction
where all actions required by Section 8 shall have been taken with respect to
the Collateral.
SECTION 10. VOTING RIGHTS; DIVIDENDS; ETC. (a) So long as no
Default under Section 7.01(a) or (f) of the Credit Agreement shall have occurred
and be continuing or no Event of Default shall have occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any and all voting
and other consensual rights pertaining to the Security Collateral or any
part thereof for any purpose not inconsistent with the terms of this
Agreement or the other Loan Documents; provided, however, that such Pledgor
shall not exercise or refrain from exercising any such right if such action
would have a Material Adverse Effect on the value of the Security
Collateral or any part thereof.
(ii) The Administrative Agent shall execute and deliver (or cause to
be executed and delivered) to each Pledgor all such proxies and other
instruments as such Pledgor may reasonably request for the purpose of
enabling such Pledgor to exercise the voting and other rights that it is
entitled to exercise pursuant to paragraph (i) above.
(iii) Each Pledgor shall be entitled to receive and retain any and all
dividends, interest and other distributions paid or other amounts received
in respect of its Security Collateral, PROVIDED, HOWEVER, that:
(A) any and all dividends and other distributions paid or payable
other than in cash in respect of, and instruments and other property
received, receivable or otherwise distributed in respect of, or in exchange
for, any Security Collateral except that the foregoing shall not apply to a
liquidation of AKW LP, ▇▇▇▇▇▇▇▇▇ LLC, Columbia GP, or AKW LLC into a
Restricted Subsidiary of the U.S. Borrower so long as all of the stock,
limited liability company membership interests, partnership interests or
other equity interests of such Restricted Subsidiary is pledged under this
Agreement,
10
(B) any and all dividends and other distributions paid or payable in
cash in respect of any Security Collateral in connection with a partial or
total liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid-in-surplus,
(C) any and all cash paid, payable or otherwise distributed in
redemption of, or in exchange for, any Security Collateral, and
(D) any and all dividends and distributions paid in cash in
violation of the terms of the Credit Agreement.
shall be, and shall be forthwith delivered to the Administrative Agent
to hold as, Security Collateral and shall, if received by any Pledgor,
be received in trust for the benefit of the Administrative Agent, be
segregated from the other property or funds of such Pledgor and be
forthwith delivered to the Administrative Agent as Security Collateral
in the same form as so received (with any necessary indorsement or
assignment).
(b) Upon notice to the U.S. Borrower by the Administrative Agent
following the occurrence and during the continuance of a Default under Section
7.01(a) or (f) of the Credit Agreement or an Event of Default, all rights of the
Pledgors to exercise or refrain from exercising the voting and other consensual
rights that it would otherwise be entitled to exercise pursuant to Section
10(a)(i) and all rights of the Pledgors to receive dividends and other
distributions that it would otherwise be entitled to receive pursuant to Section
10(a)(iii) shall cease, and all such rights shall thereupon become vested in the
Administrative Agent, which shall thereupon have the sole right to exercise or
refrain from exercising such voting and other consensual rights or to receive or
refrain from receiving such dividends and other distributions.
SECTION 11. TRANSFERS AND OTHER LIENS. No Pledgor shall (i) convey,
transfer, sell, assign (by operation of law or otherwise) or otherwise dispose
of, or grant any option or other right to purchase or otherwise acquire, any of
the Collateral, except for such conveyances, sales, transfers, assignments and
dispositions that are expressly permitted under the Loan Documents, or (ii)
create, incur, assume or suffer to exist any Lien upon or with respect to any of
the Collateral except for the pledge, assignment and security interest created
or otherwise expressly permitted under the terms of the Loan Documents.
SECTION 12. ADMINISTRATIVE AGENT APPOINTED ATTORNEY-IN-FACT. Each
Pledgor hereby irrevocably appoints the Administrative Agent such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, from time to time in the
Administrative Agent's discretion following the occurrence and continuance of a
Default under Section 7.01(a) or 7.01(f) or an Event of Default, to take any
action and to execute any instrument that the Administrative Agent may deem
necessary or advisable to accomplish the purposes of this Agreement and the
other Loan Documents, including, without limitation:
(a) to ask for, demand, collect, ▇▇▇ for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due
under or in respect of any of the Collateral,
(b) to receive, indorse, assign and collect any drafts, acceptances,
instruments and other documents in connection with this Agreement
(including, without limitation, all instruments representing or evidencing
any dividend or other distribution in respect of the Collateral or any part
thereof) and give full discharge to same,
11
(c) to sell, transfer, assign or otherwise deal with the Collateral
or any part thereof in the same manner and to the same extent as if the
Administrative Agent were the absolute owner thereof,
(d) (i) to direct any Person liable to such Pledgor for any payment
with respect to its Collateral to make payment of any and all moneys due
and to become due thereunder directly to the Administrative Agent or as the
Administrative Agent shall direct, (ii) to receive payment of and receipt
for any and all moneys, claims and other amounts due and to become due at
any time in respect of or arising out of any of its Collateral, (iii) to
defend any action, suit or proceeding brought against such Pledgor with
respect to any of its Collateral and (iv) to settle, compromise or adjust
any action, suit or proceeding described in clause (iii) of this Section
12(d) and, in connection therewith, to give any such discharge or release
as the Administrative Agent may deem appropriate,
(e) to file any application, petition or other request with any
governmental authority for the purpose of obtaining any consent, approval
or authorization therefrom or satisfying any registration, filing, notice
or other requirement thereof necessary in order to fully and properly
effect the sale, transfer or other disposition of any or all of its
Collateral, and
(f) to file any claims or take any action or institute any
proceedings at the sole expense of such Pledgor that the Administrative
Agent may deem necessary or desirable for the collection of any of the
Collateral or otherwise to enforce the rights of the Administrative Agent
with respect to any of the Collateral.
SECTION 13. ADMINISTRATIVE AGENT MAY PERFORM. If the Borrower fails
to perform any agreement contained herein, the Administrative Agent may itself
perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by the
Borrower under Section 17(b).
SECTION 14. THE ADMINISTRATIVE AGENT'S DUTIES. The powers conferred
to the Administrative Agent hereunder are solely to protect its interest (and
the interest of the other Secured Parties) in the Collateral and shall not
impose any duty upon it to exercise any such powers. Except for the safe custody
of any Collateral in its possession and the accounting for moneys actually
received by it hereunder and to dispose of the Collateral in a commercially
reasonable manner, the Administrative Agent shall have no duty as to any
Collateral, as to ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Security Collateral, whether or not the Administrative Agent or any Lender has
or is deemed to have knowledge of such matters, or as to the taking of any
necessary steps to preserve rights against any parties or any other rights
pertaining to any Collateral. The Administrative Agent shall be deemed to have
exercised reasonable care in the custody and preservation of any Collateral in
its possession if such Collateral is accorded treatment substantially equal to
that which the Administrative Agent accords its own property.
SECTION 15. REMEDIES. If any Event of Default shall have occurred
and be continuing:
(a) The Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party
upon default under the Uniform Commercial Code in effect in the State of
New York at such time (the "N.Y. Uniform Commercial Code") (whether or not
the N.Y. Uniform Commercial Code applies to the affected Collateral) and
also may (i) without notice except as specified below, sell the Collateral
or any part thereof in one or more parcels at public
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or private sale, at any of the Administrative Agent's offices or
elsewhere, for cash, on credit or for future delivery, and upon such
other terms as the Administrative Agent may deem commercially
reasonable, and (ii) notify each Pledgor that all of its rights to
exercise or refrain from exercising the voting and other consensual
rights that it would otherwise be entitled to exercise with respect to
the Collateral pursuant to Section 10(a)(i) shall cease and, upon such
notice, all such rights shall become vested in the Administrative
Agent, who shall thereupon have the sole right to exercise or refrain
from exercising such voting and other consensual rights. Each Pledgor
agrees that, to the extent notice of sale shall be required by law, at
least ten days' notice to such Pledgor of the time and place of any
public sale or the time after which any private sale is to be made
shall constitute reasonable notification. The Administrative Agent
shall not be obligated to make any sale of Collateral regardless of
notice of sale having been given. The Administrative Agent may adjourn
any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so adjourned.
(b) If the Administrative Agent proceeds to exercise its right to
sell any or all of the Security Collateral, each of the Pledgors shall,
upon the written request of the Administrative Agent therefor, furnish to
the Administrative Agent all such information as the Administrative Agent
may reasonably request in order to determine the number of limited
liability company membership interests, partnership interests, shares and
other instruments included in such Security Collateral that may be sold by
the Administrative Agent in transactions exempt under the Securities Act of
1933 (as amended, and together with the regulations promulgated and the
rulings issued thereunder, the "SECURITIES ACT") or any similar laws in
effect from time to time in any other relevant jurisdiction.
(c) Each purchaser of all or any part of the Collateral at any such
sale that has been made in accordance with applicable law shall hold the
property sold absolutely free from any claim, encumbrance or other right on
the part of each of the Pledgors, and each of the Pledgors hereby waives,
to the fullest extent permitted by applicable law, all rights of
redemption, stay and/or appraisal that it now has or may at any time in the
future have under any applicable law now existing or hereafter enacted with
respect to any such sale.
(d) All proofs of claim, rights of action and rights to assert
claims under this Agreement or any of the other Collateral Documents to
which any Pledgor is or is to be a party may be enforced by the
Administrative Agent without the possession of any of the Notes at any
proceeding instituted by the Administrative Agent, and any such proceeding
may be brought in its own name as agent, and any recovery or judgment shall
be for the benefit of the Secured Parties. In any proceeding brought by the
Administrative Agent (and in any proceeding involving the interpretation of
any of the provisions of any of the Collateral Documents to which such
Pledgor is a party), the Administrative Agent shall be held to represent
all of the Secured Parties, and it shall not be necessary to make any of
the other Secured Parties party to such proceeding.
(e) All cash held by or on behalf of the Administrative Agent as
Collateral and all cash proceeds received by or on behalf of the
Administrative Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral as defined herein and
all or any part of the "COLLATERAL"as defined in the Security Agreement,
may, in the discretion of the Administrative Agent, be held by the
Administrative Agent as collateral for, and/or then or at any time
thereafter applied (after payment of any amounts payable to the
Administrative Agent pursuant to Section 17(b)) in whole or in part by the
Administrative Agent, for the ratable benefit of the Secured Parties,
against all or any part of the Secured Obligations in such order as the
Administrative Agent shall elect. In determining the amounts owing to the
Hedge Banks under
13
the Bank Hedge Agreements, the Administrative Agent shall
be entitled to rely, and be fully protected in relying, upon the Agreement
Values (as hereinafter defined) of the Bank Hedge Agreements. The term
"Agreement Value" means, with respect to any of the Bank Hedge Agreements
at any date of determination, the amount, if any, that would be payable to
the Hedge Bank party to such Bank Hedge Agreement in respect of any
"AGREEMENT VALUE" under such Bank Hedge Agreement if such Bank Hedge
Agreement were terminated on such date, calculated as provided in the
International Swap Dealers Association, Inc. Code of Standard Wording,
Assumptions and Provisions for Swaps, 1986 Edition. Each determination of
the Agreement Value of any of the Bank Hedge Agreements shall be made by
the Administrative Agent in good faith and in reliance on any information
(including information provided by such Hedge Bank) that it believes to be
accurate, but without any obligation to verify such information. Any
surplus of cash or cash proceeds held by or on behalf of the Administrative
Agent in accordance with this Section 15 and Section 18 of the Security
Agreement and remaining after payment in full in cash of all of the Secured
Obligations and all of the other Obligations of the Loan Parties owing
under or in respect of the Loan Documents shall be paid over to the
Pledgors or to whomsoever may be lawfully entitled to receive such surplus.
(f) The Administrative Agent may exercise any and all rights and
remedies of any of the Pledgors in respect of the Collateral (including,
without limitation, any and all rights of any such Pledgor to demand or
otherwise require payment of any amount under, or performance of any
provision of any Collateral).
(g) Except as otherwise permitted by this Agreement, all payments
received by any of the Pledgors under, in connection with, or in respect
of, any of the Collateral shall be received and held by such Pledgor in
trust for the benefit of the Administrative Agent, shall be segregated from
the other property and funds of such Pledgor and shall be delivered
forthwith to the Administrative Agent in the same form as so received (with
any necessary endorsement or assignment).
SECTION 16. ACKNOWLEDGMENTS RELATING TO SECURITY COLLATERAL AND
ACCOUNT COLLATERAL. (a) Each Pledgor recognizes and hereby acknowledges that, by
reason of certain prohibitions contained in the Securities Act and applicable
state securities laws (or other similar laws of other relevant jurisdictions),
the Administrative Agent may be compelled with respect to any sale of all or any
part of the Security Collateral comprised of limited liability company
membership interests, partnership interests, shares or other equity interests or
other securities that are not registered under the Securities Act to limit the
purchasers thereof to those Persons who will agree, among other things, to
acquire the Security Collateral for their own account, for investment and not
with a view to the distribution or resale thereof. Each Pledgor hereby further
acknowledges that any such private sale may be at a price and on terms less
favorable to the Administrative Agent and the other Secured Parties than those
obtainable through a public sale without such restrictions (including, without
limitation, a public offering made pursuant to a registration statement under
the Securities Act) and, notwithstanding such circumstances, such Pledgor hereby
agrees that any private sale shall be deemed to have been made in a commercially
reasonable manner and that the Administrative Agent shall have no obligation to
engage in public sales and no obligation to delay the sale of any Security
Collateral for the period of time necessary to permit the issuer thereof to
register it for a form of public sale requiring registration under the
Securities Act or any applicable state securities laws (or other similar law of
other relevant jurisdictions), even if such Pledgor would agree to do so. Each
Pledgor hereby waives any claims against the Administrative Agent arising by
reason of the fact that the price at which any Security Collateral may have been
sold at such a private sale was less than the price that might have been
obtained at a public sale, even if the Administrative Agent accepts the first
offer received and does not offer such Security Collateral to more than one
offeree.
14
(b) The Administrative Agent may sell or liquidate (and each of the
Borrowers and of the other Pledgors hereby irrevocably instructs the
Administrative Agent, without any further action by or notice to or from any
such Pledgor, to so sell or liquidate) all or any portion of the Collateral
Investments held in or in respect of any of the Cash Collateral Accounts at any
time following the occurrence and during the continuance of an Event of Default
that the proceeds thereof are determined to be required for the satisfaction of
all or any part of the Secured Obligations, and the Administrative Agent shall
not have any liability to any of the Pledgors, any of the other Secured Parties
or any other Person for, or as a result of, any losses suffered from any such
sale or liquidation.
SECTION 17. INDEMNITY AND EXPENSES. (a) Without limiting any of the
provisions of Section 9.04 of the Credit Agreement, each Pledgor agrees to
indemnify the Administrative Agent from and against any and all claims, damages,
expenses, losses and liabilities growing out of or resulting from this Agreement
(including, without limitation, enforcement of this Agreement), except claims,
damages, expenses, losses or liabilities resulting from the Administrative
Agent's gross negligence or willful misconduct as determined by a final,
non-appealable judgment of a court of competent jurisdiction.
(b) Without limiting any of the provisions of Section 9.04 of the
Credit Agreement, each Pledgor will upon demand pay to the Administrative Agent
the amount of any and all reasonable expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, that the Administrative
Agent may incur in connection with (i) the administration of this Agreement,
(ii) the custody, preservation, use or operation of, or the sale of, collection
from or other realization upon, any of the Collateral, (iii) the exercise or
enforcement of any of the rights of the Administrative Agent or the Lenders
hereunder or (iv) the failure by such Pledgor to perform or observe any of the
provisions hereof.
(c) Without prejudice to the survival of any of the other agreements
of any of the Pledgors under this Agreement or any of the other Loan Documents,
the agreements and obligations of each of the Pledgors contained in this Section
17 and in Section 22 shall survive the payment in full of all of the Secured
Obligations and all of the other Obligations of any of the Pledgors owing under
or in respect of the Loan Documents.
SECTION 18. AMENDMENTS; WAIVERS; PLEDGE AGREEMENT SUPPLEMENT; ETC.
(a) No amendment or waiver of any provision of this Agreement, and no consent to
any departure by any Pledgor herefrom, shall in any event be effective unless
the same shall be in writing and signed by the Administrative Agent, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given. No failure on the part of the
Administrative Agent to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right.
(b) Upon the execution and delivery by any Person of a supplement to
this Agreement (whether pursuant to Section 5.01(k) of the Credit Agreement or
otherwise), in each case in substantially the form of Exhibit B hereto (each, a
"PLEDGE AGREEMENT SUPPLEMENT"), (i) such Person, if it is not then a Pledgor
hereunder, shall be referred to as an "ADDITIONAL PLEDGOR" and shall be and
become a Pledgor, and each reference in this Agreement to an "Additional
Pledgor" or a "Pledgor" shall also mean and be a reference to such Additional
Pledgor and each reference in any of the other Loan Documents to a "Pledgor" or
a "Loan Party" shall also mean and be a reference to such Additional Pledgor,
(ii) the supplements attached to each of the Pledge Agreement Supplements shall
be incorporated into and become a part of and supplement the Schedules to this
Agreement, as appropriate, and the Administrative Agent may attach such
supplements to such Schedules, and each reference to such Schedules shall mean
and be a reference to such Schedules, as supplemented pursuant hereto, and (iii)
the assignment, pledge and grant of security interest contained in such Pledge
Agreement Supplement shall, as to such Pledgor,
15
operate as the assignment, pledge and grant of security interest, as if such
assignment, pledge and grant were contained in Section 1 hereof and such
Pledgor was a signatory hereto.
SECTION 19. ADDRESSES FOR NOTICES. All notices and other
communications provided for hereunder shall be in writing (including telecopier,
telegraphic, telex or cable communication) and, mailed, telegraphed, telecopied,
telexed, cabled or delivered to each Pledgor or to the Administrative Agent, as
the case may be addressed to it at its address set forth opposite its name on
the signature pages hereto or to any other Pledgor addressed to it at its
address set forth beneath the name of such other Pledgor on the signature pages
of the Pledge Agreement Supplement pursuant to which it became a party hereto,
with a copy to KKR, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇ , ▇▇ ▇▇▇▇▇, Attn:
▇▇▇▇ ▇▇▇▇▇, or, as to any party, at such other address as shall be designated,
in the case of the Administrative Agent, by the Administrative Agent in a
written notice to the U.S. Borrower, and in the case of the U.S. Borrower or any
other Pledgor, by the U.S. Borrower or such other Pledgor in a written notice to
the Administrative Agent, in each case complying as to delivery with the terms
of this Section. All such notices and other communications shall, when mailed,
telecopied, telegraphed, telexed or cabled, respectively, be effective when
deposited in the mails, telecopied, delivered to the telegraph company,
confirmed by telex answerback or delivered to the cable company, respectively,
addressed as aforesaid.
SECTION 20. CONTINUING SECURITY INTEREST; ASSIGNMENTS UNDER THE
CREDIT AGREEMENT. This Agreement shall create a continuing security interest in
the Collateral and shall (a) remain in full force and effect until the later of
the payment in full in cash of the Secured Obligations, the expiration or
termination of all Letters of Credit and Bank Hedge Agreements and the
Termination Date, (b) be binding upon each Pledgor, its successors and assigns
and (c) inure, together with the rights and remedies of the Administrative Agent
hereunder, to the benefit of the Administrative Agent and each of the other
Secured Parties and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing clause (c), any Lender Party
may assign or otherwise transfer all or any portion of its rights and
obligations under the Credit Agreement (including, without limitation, all or
any portion of its Commitment, the Advances owing to it and the Note or Notes
held by it) to any other Person, and such other Person shall thereupon become
vested with all the benefits in respect thereof granted to such Lender herein or
otherwise, subject, in each case, to the provisions of Section 9.07 of the
Credit Agreement.
SECTION 21. RELEASE AND TERMINATION. (a) Upon the sale, transfer or
other disposition of any item of Collateral in accordance with Section 5.02(d)
of the Credit Agreement and the other terms of the Loan Documents, the
Administrative Agent will, at the applicable Pledgor's expense, execute and
deliver to such Pledgor such documents as such Pledgor shall reasonably request
to evidence the release of such item of Collateral from the pledge and security
interest granted hereunder; PROVIDED, HOWEVER, that:
(i) at the time of and after giving PRO FORMA effect to such request
and release, no Default shall have occurred and be continuing;
(ii) such Pledgor shall have delivered to the Administrative Agent,
at least five Business Days prior to the date of the proposed release, a
written request for release describing the item of Collateral and the terms
of the sale, transfer or other disposition in reasonable detail, including
the price thereof and any expenses in connection therewith, together with a
form of release for execution by the Administrative Agent and a
certification by such Pledgor to the effect that the subject transaction is
in compliance with the Loan Documents and as to such other matters as the
Administrative Agent may reasonably request; and
16
(iii) the Net Cash Proceeds of any such sale, transfer or other
disposition shall be applied to prepay the Advances outstanding at such
time in accordance with, and to the extent required under, Section 2.06(b)
of the Credit Agreement.
(b) Upon the later of the payment in full in cash of the Secured
Obligations, the termination or expiration of all Letters of Credit and
Bank Hedge Agreements and the Termination Date, the pledge, assignment and
security interest granted hereby shall terminate and all rights to the
Collateral shall revert to the Pledgors. Upon any such termination, the
Administrative Agent will, at each Pledgor's sole expense, return to such
Pledgor such Collateral of such Pledgor in the Administrative Agent's
possession as shall not have been sold or otherwise applied pursuant to the
terms of the Loan Documents, and will execute and deliver to such Pledgor
such documents as such Pledgor shall reasonably request to evidence such
termination and revision.
SECTION 22. SECURITY INTEREST ABSOLUTE. (a) The Obligations of each
Pledgor under this Agreement are independent of any of the other Obligations of
any of the other Loan Parties under or in respect of the Loan Documents, and a
separate action or actions may be brought or prosecuted against each of the
Pledgors to enforce this Agreement and the pledge, assignment and security
interest granted by such Pledgor hereunder, irrespective of whether any action
is brought against any of the other Loan Parties or whether any of the other
Loan Parties is joined in any such action or actions. All rights of the
Administrative Agent and the other Secured Parties and the pledges, assignments
and security interests created hereunder, and all obligations of each of the
Pledgors hereunder, shall be absolute, unconditional and irrevocable
irrespective of, and each of the Pledgors hereby irrevocably waives any defenses
it may now have or may hereafter acquire in any way relating to, any or all of
the circumstances described in Section 6.02 of the Credit Agreement or Section 2
of the Subsidiaries Guarantee or any other circumstance that might constitute a
defense available to, or a discharge of, any of the Pledgors or the other Loan
Parties.
(b) This Agreement shall continue to be effective or be reinstated,
as the case may be, if at any time any payment of any of the Secured Obligations
is rescinded or must otherwise be returned by the Administrative Agent or any of
the other Secured Parties or by any other Person upon the insolvency, bankruptcy
or reorganization of any of the Pledgors or otherwise, all as though such
payment had not been made, and each of the Pledgors hereby unconditionally and
irrevocably agrees that it will indemnify the Administrative Agent and each of
the other Secured Parties, upon demand, for all of the costs and expenses
(including, without limitation, reasonable fees and expenses of counsel)
incurred by the Administrative Agent or such other Secured Party in connection
with such rescission or restoration, including any such costs and expenses
incurred in defending against any claim alleging that such payment constituted a
preference, a fraudulent transfer or a similar payment under any bankruptcy,
insolvency or similar law.
SECTION 23. SEVERABILITY. The provisions of this Agreement are
severable, and if any term or provision shall be held illegal, invalid or
unenforceable in whole or in part in any jurisdiction, then such illegality,
invalidity or unenforceability shall affect only such term or provision, or part
thereof, in such jurisdiction, and shall not in any manner affect such term or
provision in any other jurisdiction, or any other term or provision of this
Agreement in any jurisdiction.
SECTION 24. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
17
SECTION 25. GOVERNING LAW; TERMS. This Agreement shall be governed by
and construed in accordance with the laws of the State of
New York, except to
the extent that the perfection and the effect of perfection of the security
interest hereunder, or remedies hereunder, in respect of any particular
Collateral, pursuant to the laws of the State of
New York, are governed by the
laws of a jurisdiction other than the State of
New York. Unless otherwise
defined herein or in the Credit Agreement, terms used in Articles 8 and 9 of the
N.Y. Uniform Commercial Code are used herein as therein defined.
18
IN WITNESS WHEREOF, each Pledgor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
ACCURIDE CORPORATION
By:
-------------------------------------------
Name:
Title:
Address: ▇.▇.▇▇▇ 15600
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Office of General Counsel
ACCURIDE CANADA, INC.
By:
-------------------------------------------
Name:
Title:
Address: ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attn:
ACCURIDE TEXAS, INC.
By:
-------------------------------------------
Name:
Title:
Address: ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Office of General Counsel
WITH A COPY TO:
--------------
Address: KKR
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
19
ACCURIDE VENTURES, INC.
By:
-------------------------------------------
Name:
Title:
Address: ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Office of General Counsel
WITH A COPY TO:
--------------
Address: KKR
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
ACCURIDE KENTUCKY HOLDING COMPANY
By:
-------------------------------------------
Name:
Title:
Address: ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Office of General Counsel
WITH A COPY TO:
--------------
Address: KKR
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
20
ACCURIDE CUYAHOGA FALLS, INC.
By:
-------------------------------------------
Name:
Title:
Address: ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Office of General Counsel
WITH A COPY TO:
--------------
Address: KKR
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
ACCURIDE TENNESSEE HOLDING COMPANY
By:
--------------------------------------------
Name:
Title:
Address: ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Office of General Counsel
WITH A COPY TO:
--------------
Address: KKR
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
21
ACCURIDE ▇▇▇▇▇▇▇▇▇ FACILITIES
MANAGEMENT CORPORATION
By:
--------------------------------------------
Name:
Title:
Address: ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Office of General Counsel
WITH A COPY TO:
--------------
Address: KKR
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
22
ACCURIDE ▇▇▇▇▇▇▇▇▇ LIMITED
LIABILITY COMPANY
By: ACCURIDE ▇▇▇▇▇▇▇▇▇
FACILITIES MANAGEMENT
CORPORATION
as Member
By:
--------------------------------------
Name:
Title:
By: ACCURIDE VENTURES, INC.
as Member
By:
--------------------------------------
Name:
Title:
Address: ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Office of General Counsel
WITH A COPY TO:
--------------
Address: KKR
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
23
ACCURIDE COLUMBIA FACILITIES
MANAGEMENT CORPORATION
By:
-------------------------------------------
Name:
Title:
Address: ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Office of General Counsel
WITH A COPY TO:
--------------
Address: KKR
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
ACCURIDE COLUMBIA GENERAL
PARTNERSHIP
By: ACCURIDE VENTURES, INC.,
its General Partner
By:
--------------------------------------
Name:
Title:
Address: ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Office of General Counsel
WITH A COPY TO:
--------------
Address: KKR
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
24
AKW L.P.
By: AKW GENERAL PARTNER L.L.C.
as General Partner
By: ACCURIDE VENTURES, INC.,
as Member
By:
--------------------------------------
Name:
Title:
By:
ACCURIDE CORPORATION,
as Member
By:
--------------------------------------
Name:
Title:
Address: ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Office of General Counsel
WITH A COPY TO:
--------------
Address: KKR
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
25
ACCURIDE GENERAL PARTNERSHIP L.L.C
By: ACCURIDE VENTURES, INC.,
as Member
By:
--------------------------------------
Name:
Title:
By:
ACCURIDE CORPORATION,
as Member
By:
--------------------------------------
Name:
Title:
Address: ▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Office of General Counsel
WITH A COPY TO:
--------------
Address: KKR
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
SCHEDULE I
INITIAL PLEDGED INTERESTS
-------------------------- --------------------------------------- ------------- --------------- -------------- ----------------
Stock Percentage of
Class of Certificate Number of Outstanding
Name of ▇▇▇▇▇▇▇ Name of Issuer Stock No(s). Shares Shares
-------------------------- --------------------------------------- ------------- --------------- -------------- ----------------
Accuride Corporation Accuride Texas, Inc. Common 1 1,000 100%
-------------------------- --------------------------------------- ------------- --------------- -------------- ----------------
Accuride Corporation Accuride Ventures, Inc. Common 1 100 100%
-------------------------- --------------------------------------- ------------- --------------- -------------- ----------------
Accuride Corporation Accuride Kentucky Holding Company Common 1 1,000 100%
-------------------------- --------------------------------------- ------------- --------------- -------------- ----------------
Accuride Corporation Accuride Tennessee Holding Company Common 1 1,000 100%
-------------------------- --------------------------------------- ------------- --------------- -------------- ----------------
Accuride Corporation Accuride Cuyahoga Falls, Inc. Common 1 1,000 100%
-------------------------- --------------------------------------- ------------- --------------- -------------- ----------------
Accuride Kentucky Accuride ▇▇▇▇▇▇▇▇▇ Facilities Common 2 1,000 100%
Holding Company Management Corporation
-------------------------- --------------------------------------- ------------- --------------- -------------- ----------------
Accuride Tennessee Accuride Columbia Facilities Common 2 1,000 100%
Holding Company Management Corporation
-------------------------- --------------------------------------- ------------- --------------- -------------- ----------------
Accuride Corporation Accuride Canada, Inc. Common C-4 66 66%
-------------------------- --------------------------------------- ------------- --------------- -------------- ----------------
Accuride Corporation Accuride Canada, Inc. Common C-5 34 34%
-------------------------- --------------------------------------- ------------- --------------- -------------- ----------------
SCHEDULE II
JURISDICTION OF ORGANIZATION
-------------------------- --------------------------------------- -------------------------- ----------------- ----------------
Certificate Interest
Name of ▇▇▇▇▇▇▇ Name of Issuer Pledged Interest No. Percentage
-------------------------- --------------------------------------- -------------------------- ----------------- ----------------
Accuride Corporation AKW General Partner L.L.C., a Delaware Pledgor's "Interest"(as Uncertified 50%
limited liability company ("AKW LLC") defined in the AKW
LLC Agreement)
-------------------------- --------------------------------------- -------------------------- ----------------- ----------------
Accuride Ventures, Inc. AKW LLC Pledgor's "Interest"(as Uncertified 50%
defined in the AKW
LLC Agreement)
-------------------------- --------------------------------------- -------------------------- ----------------- ----------------
Accuride Ventures, Inc. Accuride ▇▇▇▇▇▇▇▇▇ LLC Pledgor's "Interest" (as Uncertified 1%
defined in the Accuride
▇▇▇▇▇▇▇▇▇ LLC Agreement)
-------------------------- --------------------------------------- -------------------------- ----------------- ----------------
Accuride ▇▇▇▇▇▇▇▇▇ Accuride ▇▇▇▇▇▇▇▇▇ LLC Pledgor's "Interest" (as Uncertified 99%
Facilities Management defined in the Accuride
Corporation ▇▇▇▇▇▇▇▇▇ LLC Agreement)
-------------------------- --------------------------------------- -------------------------- ----------------- ----------------
PLEDGE AGREEMENT
SCHEDULE I
PLEDGED
PARTNERSHIP INTERESTS
-------------------------- --------------------------------------- -------------------------- ----------------- ----------------
Certificate Interest
Name of ▇▇▇▇▇▇▇ Name of Issuer Pledged Interest No. Percentage
-------------------------- --------------------------------------- -------------------------- ----------------- ----------------
Accuride Corporation AK L.P., a Delaware limited Pledgor's "Interest"(as Uncertified 49%
partnership ("AKW LP") defined in the AKW
LP Agreement)
-------------------------- --------------------------------------- -------------------------- ----------------- ----------------
Accuride Ventures, Inc. AKW LP Pledgor's "Interest"(as Uncertified 49%
defined in the AKW
LP Agreement)
-------------------------- --------------------------------------- -------------------------- ----------------- ----------------
Accuride Ventures, Inc. Accuride Columbia General Partnership Pledgor's "Interest" (as Uncertified 1%
defined in the Accuride
Columbia Amended and
Restated General
Partnership Agreement)
-------------------------- --------------------------------------- -------------------------- ----------------- ----------------
Accuride Columbia Accuride Columbia General Partnership Pledgor's "Interest" (as Uncertified 99%
Facilities Management defined in the Accuride
Corporation Columbia Amended and
Restated General
Partnership Agreement)
-------------------------- --------------------------------------- -------------------------- ----------------- ----------------
SCHEDULE II TO THE
PLEDGE AGREEMENT
JURISDICTION OF ORGANIZATION
JURISDICTION OF
ORGANIZATION
---------------
PLEDGOR
Accuride Corporation Delaware
ACCURIDE VENTURES, INC. Delaware
Accuride Kentucky Holding Company Delaware
ACCURIDE ▇▇▇▇▇▇▇▇▇ FACILITIES MANAGEMENT CORPORATION Delaware
Accuride Tennessee Holding Company Delaware
ACCURIDE COLUMBIA FACILITIES MANAGEMENT CORPORATION Delaware
AKW GENERAL PARTNER, L.L.C. Delaware
ACCURIDE TEXAS INC. Delaware
AKW, L.P. Delaware
ACCURIDE CUYAHOGA FALLS, INC. Delaware
ACCURIDE ▇▇▇▇▇▇▇▇▇ LIMITED LIABILITY COMPANY Delaware
ACCURIDE COLUMBIA GENERAL PARTNERSHIP Delaware
Accuride Canada Inc. Canada
EXHIBIT A TO THE
PLEDGE AGREEMENT
----------------
FORM OF CASH COLLATERAL ACCOUNT LETTER
[NAME OF BORROWER]
[ADDRESS]
[Date]
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: _______________
[NAME OF APPLICABLE BORROWER]
Gentlemen/women:
Reference is made to (a) deposit account no.___________ (the "CASH
COLLATERAL ACCOUNT") maintained with you by [Name of Borrower] (the "BORROWER").
Pursuant to the Second Amended and Restated Pledge Agreement dated as of July
27, 2001 (as amended, supplemented or otherwise modified hereafter from time to
time, the "PLEDGE AGREEMENT"; terms defined therein and not otherwise defined
herein being used herein as therein defined) made by the Borrower and the other
pledgors (the "PLEDGORS") party thereto in favor of Citicorp USA, Inc., as
administrative agent (together with any successor thereto appointed pursuant to
Article VIII of the Credit Agreement, the "ADMINISTRATIVE AGENT") for the
Secured Parties referred to therein, the Borrower has granted to the
Administrative Agent, on behalf of the Secured Parties, sole and exclusive
dominion and control of the Cash Collateral Account and a lien on and security
interest in certain property and assets of the Borrower, including, among other
things, the following (collectively, the "ACCOUNT Collateral"):
(a) the Cash Collateral Account, all of the funds held therein and
all of the certificates and instruments, if any, from time to time
representing or evidencing the Cash Collateral Account; and
(b) all of the Collateral Investments made on behalf of the Borrower
from time to time and all of the certificates and instruments, if any, from
time to time representing or evidencing any such Collateral Investments;
and
(c) all of the interest, dividends, distributions, cash, instruments
and other property and assets from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the
then existing Account Collateral; and
(d) all of the proceeds of any and all of the foregoing Account
Collateral. It is a condition to the continued maintenance of the Cash
Collateral Account with you that you agree to this letter agreement.
By signing this letter agreement, you acknowledge notice of, and
consent to the terms and conditions of, the Pledge Agreement and the grant of
the lien and security interest in, and the pledge and
2
assignment of, the Account Collateral to the Administrative Agent, on behalf of
the Secured Parties, and you confirm to the Administrative Agent that (a) the
Cash Collateral Account is maintained with you at your offices at Citibank,
N.A., [399 Park Avenue,
New York,
New York, 10043][__________________________,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇], and is entitled "_____________, cash collateral
account for the benefit of Citicorp USA, Inc., as Administrative Agent" and the
account number therefor is as set forth in the immediately preceding paragraph
and (b) you have not received any notice of any other lien or security interest
in, pledge or assignment of, or other claim (other than that of the Borrower) on
or to the Cash Collateral Account or any of the other Account Collateral.
Further, you hereby agree with the Administrative Agent that:
(i) The Cash Collateral Account will be maintained solely for the
benefit of the Administrative Agent, on behalf of the Secured Parties, will
be and remain entitled as set forth in clause (a) of this paragraph and
will be subject to written instructions only from an officer of the
Administrative Agent.
(ii) Notwithstanding anything to the contrary in any agreement
relating to the Cash Collateral Account, the Cash Collateral Account is and
will be subject to the terms and conditions of the Pledge Agreement and
such applicable laws (including, without limitation, such applicable
regulations of the Board of Governors of the Federal Reserve System and of
any other appropriate banking or other governmental authority) as are in
effect from time to time, and to the extent any term or condition of this
letter agreement is inconsistent with the terms and conditions of the
Pledge Agreement, the terms and conditions of the Pledge Agreement shall
govern; PROVIDED, HOWEVER, that you shall not be liable for any amendment,
supplement or other modification of any term or condition of the Pledge
Agreement until you have received notice of such amendment, supplement or
other modification from the Administrative Agent, and you hereby agree to
promptly amend this letter agreement to comply with any such amendment,
supplement or other modification. The Administrative Agent shall be
entitled to exercise any and all rights of the Borrower in respect of the
Cash Collateral Account in accordance with the terms of the Pledge
Agreement, and you shall comply in all respects with such exercise.
(iii) You will follow your usual operating procedures for the
handling of any remittance received in the Cash Collateral Account that
contains restrictive endorsements, irregularities (such as a variance
between the written and numerical amounts), undated or postdated items,
missing signatures, incorrect payees, etc. that are received for deposit in
the Cash Collateral Account.
(iv) You are hereby authorized by each of the Borrower and the
Administrative Agent to endorse and process, and you hereby agree to
endorse and process, all eligible checks and other remittance items not
covered by subparagraph (iii) above and to deposit such checks and
remittance items into the Cash Collateral Account.
(v) You will maintain a record of all checks, deposits and other
remittance items received in, and all disbursements made from, the Cash
Collateral Account and, in addition to providing the Borrower with
photostats, vouchers, enclosures, records and other documents of such
checks, deposits and disbursements on a monthly basis, you will furnish to
the Administrative Agent a monthly statement of the Cash Collateral Account
(which statement shall be mailed or telecopied to the Administrative Agent
at the address set forth therefor below its name on the signature pages to
this letter agreement).
3
(vi) In accordance with written instructions received from the
Administrative Agent, you will, subject to the provisions hereof, from time
to time (A) invest amounts on deposit in the Cash Collateral Account in
such Cash Equivalents as are set forth in such instructions of the
Administrative Agent in the name of the Administrative Agent, on behalf of
the Borrower, and (B) invest interest paid on the Cash Equivalents referred
to in subclause (vi)(A) above, and reinvest other proceeds of any such Cash
Equivalents that may mature or be sold, in each case in such Cash
Equivalents as are set forth in the instructions of the Administrative
Agent in the name of the Administrative Agent, on behalf of the Borrower
(the Cash Equivalents referred to in subclauses (vi)(A) and (vi)(B) above
being collectively "COLLATERAL INVESTMENTS"). All of the Collateral
Investments and all of the interest and proceeds that are not invested or
reinvested in Collateral Investments as provided above in this subparagraph
(vi) shall constitute part of the Account Collateral.
(vii) You shall promptly notify each of the Borrower and the
Administrative Agent if the Cash Collateral Account (A) becomes subject to
any writ, garnishment, judgment, warrant of attachment, execution or
similar process or (B) becomes, or is asserted to have become, subject to
any lien, security interest, adverse claim or other encumbrance of any
person or entity other than the Administrative Agent.
(viii) All transfers from the Cash Collateral Account shall be made by
you irrespective of, and without deduction for, any counterclaim, defense,
recoupment, setoff or similar rights in your favor and shall be final, and
you will not seek to recover from the Administrative Agent for any reason
any such payment once made; PROVIDED, HOWEVER, that you may charge against
the Cash Collateral Account the face amount of any item deposited into or
credited to the Cash Collateral Account which is subsequently returned
unpaid due to uncollected or insufficient funds. Each such transfer of
funds shall neither comprise only a part of a remittance nor reflect the
rounding off of any funds so transferred.
(ix) All service charges and fees with respect to the Cash Collateral
Account shall be payable by the Borrower, but may be charged to another
deposit account maintained by the Borrower with you (other than any other
Cash Collateral Account maintained with you).
(x) The lien and security interest of the Administrative Agent, on
behalf of itself and the other Secured Parties, in the Cash Collateral
Account and the other Account Collateral of the Borrower shall not be
terminated until you receive notice of such termination from the
Administrative Agent.
You hereby represent and warrant that the person executing this letter
agreement on your behalf is duly authorized and fully empowered to do so.
You shall exercise reasonable care in performing your duties and
responsibilities in respect of the Account Collateral and in fulfilling your
obligations under or in respect of this letter agreement. You shall not be held
liable for any claims, damages, losses or expenses incurred by the Borrower or
the Administrative Agent in connection therewith other than for (a) claims,
damages, losses or expenses resulting from your gross negligence or willful
misconduct or (b) your failure to maintain the Account Collateral or to fulfill
your obligations under or in respect of this letter agreement with reasonable
care; PROVIDED, HOWEVER, that in such case your liability shall extend only to
any direct loss resulting therefrom, as opposed to any consequential or special
loss or damage. Except as expressly agreed to in this letter agreement, you have
no duty other than reasonable care and other customary duties
4
with respect to the Cash Collateral Account and the other Account Collateral and
the monitoring and safeguarding of all of the items deposited into the Cash
Collateral Account.
No amendment or waiver of any provision of this letter agreement, and
no consent to any departure by you or the Borrower herefrom, shall be effective
unless the same shall be in writing as signed by each of you, the Borrower and
the Administrative Agent.
This letter agreement shall be binding upon you and your successors
and assigns and shall inure to the benefit of, and be enforceable by, the
Administrative Agent and the other Secured Parties and their respective
successors, transferees and assigns. You may terminate this letter agreement
upon 30 days' prior written notice to the Borrower and the Administrative Agent.
Upon such termination, you (a) shall close the Cash Collateral Account and
transfer all funds in the Cash Collateral Account in accordance with the
instructions of the Administrative Agent and (b) shall nonetheless remain
obligated promptly to transfer to the Administrative Agent, as instructed by the
Administrative Agent at such time, all funds and other property and assets
received in respect of the Cash Collateral Account.
This letter agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same agreement. Delivery of an executed counterpart
of a signature page to this letter agreement shall be effective as delivery of a
manually executed counterpart of this letter agreement.
This letter agreement shall be governed by, and construed in
accordance with, the laws of the State of
New York.
Please indicate your acknowledgment of and agreement to the provisions
of this letter agreement by signing in the appropriate space provided below and
returning this letter agreement to Citicorp USA, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier No.: (212) _________, Attention: ▇▇▇▇ ▇▇▇▇▇. If
you elect to deliver this letter agreement by telecopier, please arrange for the
executed original to follow by next-day courier.
Very truly yours,
[NAME OF BORROWER], as Borrower
By
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Name:
Title:
PERSON AND ADDRESS FOR NOTICES:
_____________________
_____________________
_____________________
_____________________
Tel: ________________
Fax: ________________
5
CITICORP USA, INC., as Administrative Agent
By
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Name:
Title:
PERSON AND ADDRESS FOR NOTICES:
Attn: ▇▇▇▇ ▇▇▇▇▇
Citicorp USA, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Acknowledged and agreed to as
of the date first above written:
CITIBANK, N.A.
By
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Name:
Title:
PERSON AND ADDRESS FOR NOTICES:
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT B TO THE
PLEDGE AGREEMENT
----------------
FORM OF PLEDGE AGREEMENT SUPPLEMENT
[Date]
Citicorp USA, Inc., as the Administrative
Agent for the Lender Parties party to the
Credit Agreement referred to below
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: _______________
ACCURIDE CORPORATION
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Ladies and Gentlemen:
Reference is made to (i) the Second Amended and Restated Credit
Agreement dated as of July 27, 2001 (such Credit Agreement, as in effect on the
date hereof and as it may hereafter be amended or otherwise modified from time
to time, being the "CREDIT AGREEMENT") among Accuride Corporation, a Delaware
corporation, Accuride Canada, Inc., a corporation organized and existing under
the law of the Province of Ontario, Canada, the banks, financial institutions
and other institutional lenders parties thereto as Lenders, Citibank, N.A., as
Initial Issuing Bank, Citicorp USA, Inc., as Swing Line Bank and Administrative
Agent (in such capacity or Administrative Agent, the "ADMINISTRATIVE AGENT"),
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., as Arranger, Bankers Trust Company, as Syndication
Agent, and ▇▇▇▇▇ Fargo Bank N.A., as Documentation Agent, and (ii) the Second
Amended and Restated Pledge Agreement dated as of July 27, 2001, (such Pledge
Agreement, as in effect on the date hereof and as it may hereafter be amended or
otherwise modified from time to time, being the "PLEDGE AGREEMENT") by the U.S.
Borrower, the Canadian Borrower, and the other Pledgors party thereto, to the
Administrative Agent. The terms defined in the Credit Agreement or the Pledge
Agreement and not otherwise defined herein shall have the same meanings as
specified in the Credit Agreement or the Pledge Agreement.
[SECTION _. THE PLEDGE AGREEMENT. The undersigned hereby agrees,
as of the date first above written, to be bound as a Pledgor by all of the
terms and provisions of the Pledge Agreement to the same extent as each of
the other Pledgors. The undersigned further agrees, as of the date first
above written, that each reference in the Pledge Agreement to an
"Additional Pledgor" or a "Pledgor" shall also mean and be a reference to
the undersigned, and each reference in any of the other Loan Documents to
a "Pledgor" or a "Loan Party" shall also mean and be a reference to the
undersigned.]
[SECTION _. ADDITIONAL PLEDGED INTERESTS. (a) Pursuant to the
Pledge Agreement, the undersigned assigns and pledges to the
Administrative Agent for its benefit and the ratable benefit of the
Secured Parties, and grants to the Administrative Agent for its benefit
and the ratable benefit of the Secured Parties, a security interest in the
shares of stock and other equity interests set forth on Schedule I hereto
and issued by the Person[s] named therein (such shares and other equity
interests being collectively referred to herein as the "ADDITIONAL PLEDGED
INTERESTS").
(b) The undersigned makes the assignment and pledge, and grants
the security interest, contained in Section 1 of the Pledge Agreement, of
and in the Additional Pledged
Interests, as if the undersigned was an original party to the Pledge
Agreement as a Pledgor with respect to the Additional Pledged Interests
thereunder.]
SECTION _. REPRESENTATION AND WARRANTIES. Without limiting the
generality of the foregoing, the undersigned represents and warrants as a
Pledgor as set forth in Section 7 of the Pledge Agreement, as supplemented by
this Pledge Agreement Supplement.
SECTION _. GOVERNING LAW. This Pledge Agreement Supplement
shall be governed by, and construed in accordance with, the laws of the State of
New York, except to the extent that the perfection or the effect of perfection
of the security interest under the Pledge Agreement, or remedies under the
Pledge Agreement, in respect of any Collateral are governed, pursuant to the
laws of the State of
New York, by the laws of a jurisdiction other than the
State of
New York.
Very truly yours,
[NAME OF ADDITIONAL PLEDGOR]
By
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Name:
Title:
Address:
