EXHIBIT 10.2
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AMENDED AND RESTATED COMPLETION GUARANTY AGREEMENT
BY AND AMONG
ACCURIDE CORPORATION,
ACCURIDE DE MEXICO, S.A. DE C.V.
and
CITIBANK MEXICO, S.A., GRUPO FINANCIERO CITIBANK,
as Lender
Dated as of July 16, 1999
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TABLE OF CONTENTS
SECTION PAGE
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I COMPLETION
SECTION 1.01 COMPLETION . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.02 COMPLETION CERTIFICATES. . . . . . . . . . . . . . . . . . 2
SECTION 1.03 COMPLETION UNDERTAKING . . . . . . . . . . . . . . . . . . 2
SECTION 1.04 WAIVER OF COMPLETION CONDITIONS. . . . . . . . . . . . . . 2
SECTION 1.05 COMPLETION OF NON-CONFORMING PLANT . . . . . . . . . . . . 3
ARTICLE II FUNDS TO COMPLETE
SECTION 2.01 FUNDS TO COMPLETE. . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.02 NOTICE OF DEFAULT. . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.03 OBLIGATIONS ABSOLUTE . . . . . . . . . . . . . . . . . . . 4
SECTION 2.04 WAIVERS AND ACKNOWLEDGMENTS. . . . . . . . . . . . . . . . 5
SECTION 2.05 SEPARATE UNDERTAKING . . . . . . . . . . . . . . . . . . . 6
SECTION 2.06 RELEASE UPON PREPAYMENT OF ADVANCES. . . . . . . . . . . . 6
SECTION 2.07. COMPLETION GUARANTY NOT APPLICABLE TO OBLIGATIONS UNDER THE
CREDIT AGREEMENT OR THE NOTES . . . . . . . . . . . . . . . 6
ARTICLE III TERMINATION OF OBLIGATIONS
SECTION 3.01 TERMINATION UPON COMPLETION. . . . . . . . . . . . . . . . 7
SECTION 3.02 TERMINATION PRIOR TO COMPLETION. . . . . . . . . . . . . . 7
SECTION 3.03 EFFECT OF TERMINATION. . . . . . . . . . . . . . . . . . . 7
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01 REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. . . . . 7
ARTICLE V COVENANTS
SECTION 5.01 COVENANTS OF THE SHAREHOLDER . . . . . . . . . . . . . . . 9
ARTICLE VI COMPLETION DEFAULTS
SECTION 6.01 COMPLETION DEFAULTS. . . . . . . . . . . . . . . . . . . .11
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SECTION 6.02 COMPLETION DEFAULT REMEDIES. . . . . . . . . . . . . . . .12
ARTICLE VII MISCELLANEOUS
SECTION 7.01 AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . .12
SECTION 7.02 NOTICES, ETC.. . . . . . . . . . . . . . . . . . . . . . .12
SECTION 7.03 NO WAIVER; REMEDIES. . . . . . . . . . . . . . . . . . . .13
SECTION 7.04 BINDING EFFECT . . . . . . . . . . . . . . . . . . . . . .13
SECTION 7.05 EXECUTION IN COUNTERPARTS. . . . . . . . . . . . . . . . .13
SECTION 7.06 [Intentionally omitted] . . . . . . . . . . . . . . . . . .13
SECTION 7.07 JURISDICTION, ETC. . . . . . . . . . . . . . . . . . . . .13
SECTION 7.08 JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . .14
SECTION 7.09 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . .15
SECTION 7.10 THIRD PARTY BENEFICIARIES. . . . . . . . . . . . . . . . .15
SECTION 7.11 ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . .15
SECTION 7.12 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . .15
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
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AMENDED AND RESTATED COMPLETION GUARANTY AGREEMENT
This Amended and Restated Completion Guaranty Agreement (this
"AGREEMENT"), dated as of July 16, 1999, is made by and among ACCURIDE
CORPORATION, a Delaware corporation ("ACCURIDE", or the "SHAREHOLDER"), ACCURIDE
DE MEXICO, S.A. DE C.V., a corporation organized and existing under the laws of
the United Mexican States (the "BORROWER"), and CITIBANK MEXICO, S.A., GRUPO
FINANCIERO CITIBANK, as Lender (the "LENDER") party to the Credit Agreement (as
defined below).
PRELIMINARY STATEMENTS:
(1) The Borrower and the Lender have entered into that certain
Credit Agreement dated as of July 9, 1998 (such Credit Agreement, as it
hereafter may be amended, supplemented or otherwise modified from time to time,
being referred to herein as the "CREDIT AGREEMENT"; capitalized terms defined in
the Credit Agreement and not otherwise defined herein will be used herein as
defined in the Credit Agreement.
(2) The Borrower, Accuride, a 51% owner of the Borrower, and
Industria Automotriz, S.A. de C.V., a corporation organized and existing under
the laws of the United Mexican States and a 49% owner of the Borrower ("IASA"),
entered into the Completion Guaranty Agreement dated as of July 9, 1998 (the
"ORIGINAL COMPLETION GUARANTY") in favor of the Lender.
(3) Accuride has proposed to purchase IASA's ownership interests in
the Borrower, and the Borrower, Accuride and IASA have requested that the Lender
consent to release IASA from its obligations under the Original Completion
Guaranty by executing a Consent dated as of the date hereof (the "Consent")
among the Borrower, Accuride, IASA and the Lender.
(4) It is a condition precedent to the effectiveness of the Consent
by the Lender to the release of IASA from its obligations under the Original
Completion Guaranty that Accuride, as the sole Shareholder, and the Borrower
shall have executed and delivered this Agreement.
NOW, THEREFORE, in consideration of the premises, the Shareholder, the
Borrower and the Lender hereby agree as follows:
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ARTICLE I
COMPLETION
SECTION 1.01 COMPLETION. Subject to Section 1.05 hereof, completion
of the Plant (the "COMPLETION") shall occur on the first date (the "COMPLETION
DATE") on which the Lender receives from the Borrower all of the certificates
contemplated by Section 1.02 hereof. The Completion Certificates required by
Section 1.02 may be delivered together or separately in any order and at any
time and from time to time on or prior to the Completion Date, PROVIDED THAT the
Legal Conditions Certificate referred to in clause (c) of Section 1.02 and the
Insurance Certificate referred to in clause (d) of Section 1.02 shall be dated
as of a date not earlier than the latest of the dates of the Physical Facilities
Certificate referred to in clause (a) of Section 1.02 and the Operations
Certificate referred to in clause (b) of Section 1.02.
SECTION 1.02 COMPLETION CERTIFICATES. Completion shall occur on the
first date on which the Lender receives from the Borrower all of the following
certificates:
(a) PHYSICAL FACILITIES CERTIFICATE. A certificate of the
Borrower, executed by a Senior Officer and acknowledged by the Independent
Engineer, substantially in the form set forth in Appendix A-1.
(b) OPERATIONS CERTIFICATE. A certificate of the Borrower,
executed by a Senior Officer and acknowledged by the Independent Engineer,
substantially in the form set forth in Appendix A-2.
(c) LEGAL CONDITIONS CERTIFICATE. A certificate of the Borrower,
executed by a Senior Officer, substantially in the form set forth in
Appendix A-3.
(d) INSURANCE CERTIFICATE. A certificate of the Borrower, executed
by a Senior Officer and acknowledged by the Insurance Consultant,
substantially in the form set forth in Appendix A-4.
SECTION 1.03 COMPLETION UNDERTAKING. The Shareholder undertakes to
use its best efforts to cause the Completion Date to occur by March 31, 2000.
SECTION 1.04 WAIVER OF COMPLETION CONDITIONS. Completion shall be
deemed to have occurred, even if the conditions set forth in Section 1.01 have
not been
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satisfied, if the Lender delivers a notice to the Borrower and the Shareholder
stating that Completion has occurred.
SECTION 1.05 COMPLETION OF NON-CONFORMING PLANT. If the Lender shall
receive from the Borrower all the certificates required in Section 1.02 hereof
other than the certificate required by Section 1.02(b), Completion shall
nonetheless be deemed to have occurred if the following conditions are met:
(a) The Lender shall have received a certificate of the Borrower,
executed by a Senior Officer and acknowledged by the Independent Engineer,
substantially in the form set forth in Appendix A-2 except that the "90%"
in paragraph (e) thereof shall be replaced by such other percentage as
shall apply (such other percentage being the "ACTUAL CAPACITY").
(b) The Commitments under the Credit Agreement shall have been
reduced ratably by an aggregate amount equal to the following formula:
AMOUNT = Cx 90-P(100) x1.25
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100
where AMOUNT is the aggregate amount by which the Commitments should be
ratably reduced, C is the aggregate amount of the Commitments immediately
prior to such reduction and P is the Actual Capacity expressed as a
fraction (E.G., 80% would be "0.80").
(c) If, in giving effect to the reduction of the Commitments
pursuant to subsection (b) above, the aggregate principal amount of the
outstanding Term Advances exceeds the reduced Term Commitment or the
aggregate principal amount of the outstanding Working Capital Advances
exceed the Working Capital Commitment, then the Shareholder shall have made
a prepayment of the Term Advances and/or the Working Capital Advances, as
the case may be, in an amount of principal equal to such excess, together
with accrued and unpaid interest thereon and all other amounts due and
payable under the Credit Agreement with respect to such amount of
principal.
ARTICLE II
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FUNDS TO COMPLETE
SECTION 2.01 FUNDS TO COMPLETE. (a) Prior to Completion, the
Shareholder shall provide (or cause to be provided) Shareholder funding, at such
times and in such amounts as may be necessary (taking into account all Advances
made and those to be made to the Borrower under the Credit Agreement in
accordance with the terms thereof) in order to pay when required or due all
costs and expenses incurred by or on behalf of the Borrower in connection with
the construction, development, design, engineering, acquisition, financing,
outfitting, testing, start-up and completion of the Plant, including the cost of
Plant equipment and each of the following (such funding being the "FUNDS TO
COMPLETE"): (i) all amounts payable by the Borrower to its contractors,
suppliers and subcontractors pursuant to the Construction Documents; (ii) the
costs and expenses of all engineering, legal, accounting and other professional
advisers properly incurred by the Borrower in connection with and attributable
to the Plant; (iii) costs of Required Insurance; (iv) administration and
maintenance costs incurred during the construction period; and (vi) value-added
tax, other taxes and customs charges payable in respect of any of the above.
(b) The Funds To Complete shall be paid by the Shareholder in the
form of either (i) the subscription to additional shares of common stock of the
Borrower or other additional contributions to the owners' equity of the Borrower
or (ii) the lending of such funds to the Borrower, PROVIDED that (A) on the date
of such lending no event shall have occurred and shall be continuing, or would
result from such lending, that constitutes a Default and (B) the obligation of
the Borrower to repay such funds (and interest thereon) is duly subordinated in
right of payment, in writing and upon terms (including, without limitation,
terms regarding maturity) satisfactory to the Lender, to the obligations of the
Borrower under the Credit Agreement and the Notes.
(c) The Shareholder agrees punctually to pay all Funds To Complete.
SECTION 2.02 NOTICE OF DEFAULT. The Borrower or the Shareholder, as
the case may be, shall notify the Lender, promptly, but in any event within
three Business Days, of the failure of the Shareholder to make a timely payment
in respect of Funds To Complete which the Shareholder is obligated to pay, and
of the subsequent payment thereof.
SECTION 2.03 OBLIGATIONS ABSOLUTE. The Shareholder will perform its
obligations under this Agreement regardless of any law, regulation or order now
or hereafter in effect in any jurisdiction affecting any of the terms of the
Loan Documents or
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Construction Documents or any other document related thereto or the rights of
the Lender with respect thereto. The obligations of the Shareholder under this
Agreement are independent of the Loan Documents and Construction Documents, and
a separate action or actions may be brought and prosecuted against the
Shareholder to enforce this Agreement, irrespective of whether any action is
brought against the Borrower or whether the Borrower is joined in any such
action or actions. The obligations of the Shareholder under this Agreement
shall be absolute and unconditional irrespective of:
(ERROR! UNKNOWN SWITCH ARGUMENT.) any lack of validity or
enforceability of any Loan Document, any Construction Document or any other
agreement or instrument relating thereto or any collateral therefor;
(ERROR! UNKNOWN SWITCH ARGUMENT.) any change in the time, manner or
place of payment of, or in any other term of, all or any of the Obligations
of any Loan Party under the Loan Documents or Construction Documents, or
any other amendment or waiver of or any consent to departure from the Loan
Documents or Construction Documents, including, without limitation, any
increase in the Notes or the obligations of the Borrower under the Credit
Agreement resulting from the extension of additional credit to the Borrower
or any of its subsidiaries or otherwise;
(ERROR! UNKNOWN SWITCH ARGUMENT.) any taking, exchange, release or
non-perfection of any collateral, or any taking, release or amendment or
waiver of or consent to departure from any guaranty, whether for payment,
collection or performance, for the Loan Documents or Construction
Documents;
(ERROR! UNKNOWN SWITCH ARGUMENT.) any manner of application of
collateral, or proceeds thereof, to all or any of the obligations evidenced
by the Loan Documents or Construction Documents, or any manner of sale or
other disposition of any collateral for all or any of the obligations
evidenced by the Loan Documents or Construction Documents or any other
assets of the Borrower or any of its subsidiaries;
(ERROR! UNKNOWN SWITCH ARGUMENT.) any change, restructuring or
termination of the corporate structure or existence of the Borrower or any
of its subsidiaries; or
(ERROR! UNKNOWN SWITCH ARGUMENT.) any other circumstance (including,
without limitation, any statute of limitations) which might otherwise
constitute a defense available to, or a discharge of, the Borrower or a
surety.
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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 Obligations of the Borrower under
the Loan Documents or Construction Documents is rescinded or must otherwise be
returned by the Lender or any other Person upon the insolvency, bankruptcy or
reorganization of the Borrower or any other Loan Party or otherwise, all as
though such payment had not been made.
SECTION 2.04 WAIVERS AND ACKNOWLEDGMENTS. (a) The Shareholder hereby
waives promptness, diligence, notice of acceptance and any other notice with
respect to the Loan Documents or Construction Documents and any requirement that
the Lender protect, secure, perfect or insure any Lien or any property subject
thereto or exhaust any right to take any action against the Borrower or any
other Person or any collateral.
(b) The Shareholder hereby waives any right to revoke this
Agreement, and acknowledges that this Agreement is continuing in nature and
relates to all Obligations under the Loan Documents and Construction Documents,
whether existing now or in the future.
(c) The Shareholder acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Loan Documents and that the waivers set forth in this Section 2.04 are knowingly
made in contemplation of such benefits.
SECTION 2.05 SEPARATE UNDERTAKING. Without limiting the generality
of any of the foregoing provisions of this Agreement, the Shareholder
irrevocably waives, to the full extent permitted by applicable law and for the
benefit of, and as a separate undertaking with, the Lender, any defense to the
performance of this Agreement which may be available to the Shareholder as a
consequence of this Agreement being rejected or otherwise not assumed by the
Borrower or any trustee or other similar official for the Borrower or for any
substantial part of the property of the Borrower, or as a consequence of this
Agreement being otherwise terminated or modified, in any proceeding seeking to
adjudicate the Borrower a bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief or composition
of the Borrower or the debts of the Borrower under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, whether such
rejection, non-assumption, termination or modification be by reason of this
Agreement being held to be an executory contract or by reason of any other
circumstance. If the Shareholder is prevented from performing its Obligations
under this Agreement to or for the benefit of the Borrower
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because this Agreement shall be so rejected or otherwise not assumed, or so
terminated or modified, the Shareholder agrees for the benefit of, and as a
separate undertaking with, the Lender that it will be unconditionally liable to
pay to the Lender an amount equal to each payment which would otherwise be
payable by the Shareholder under or in connection with this Agreement if this
Agreement were not so rejected or otherwise not assumed or were otherwise not so
terminated or modified.
SECTION 2.06 RELEASE UPON PREPAYMENT OF ADVANCES. Notwithstanding
anything to the contrary herein, the Shareholder shall be released of its
obligations under Section 2.01 hereof upon (a) payment or prepayment in full of
all Advances then outstanding under the Credit Agreement, together with all
accrued and unpaid interest thereon and all other amounts due and payable under
the Credit Agreement and (b) termination of all the Lender's obligations under
the Credit Agreement, including without limitation the Lender's obligation to
make Advances thereunder.
SECTION 2.07. COMPLETION GUARANTY NOT APPLICABLE TO OBLIGATIONS UNDER
THE CREDIT AGREEMENT OR THE NOTES. The Shareholder (whether as guarantor or
otherwise) shall not be required pursuant to this Agreement to pay or otherwise
discharge any Obligation of the Borrower arising under the Credit Agreement or
any of the Notes, and no provision in this Agreement shall be interpreted as
imposing any such requirement on the Shareholder.
ARTICLE III
TERMINATION OF OBLIGATIONS
SECTION 3.01 TERMINATION UPON COMPLETION. This Agreement shall
terminate upon Completion. Promptly, but in any case within three Business Days
after such termination, the Lender shall notify the Shareholder and the Borrower
of such termination; provided, however, that no failure on the part of the
Lender to so notify the Shareholder and the Borrower will extend or otherwise
delay the date of such termination.
SECTION 3.02 TERMINATION PRIOR TO COMPLETION. The Borrower may
arrange at any time for insurance, a guaranty or another comparable arrangement
in form and substance, and from a Person or Persons, acceptable to the Lender as
a replacement for the Obligations of the Shareholder under this Agreement. This
Agreement shall terminate upon acceptance in writing by the Lender of any such
replacement arrangement.
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SECTION 3.03 EFFECT OF TERMINATION Upon any termination of this
Agreement, all Obligations of the Borrower and of the Shareholder under this
Agreement shall terminate.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. The
Shareholder hereby represents and warrants as follows:
(a) The Shareholder (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, and (ii) has all requisite corporate power and authority
(including, without limitation, all material governmental licenses, permits
and other approvals) to own its shares of stock of the Borrower and to
enter into this Agreement.
(b) The execution, delivery and performance of this Agreement and
each Related Document to which the Shareholder is or is to be a party have
been duly authorized by all necessary corporate action on the part of the
Shareholder, and do not (i) contravene its charter or bylaws, (ii) violate
any applicable provision of any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award applicable to it,
(iii) result in the breach of, or constitute a default under, any loan
agreement, indenture, mortgage, deed of trust or other financial
instrument, or any other material contract or agreement, binding on or
affecting it or any of its properties or (iv) except for the Liens created
under the Loan Documents, result in or require the creation or imposition
of any Lien upon or with respect to any of its properties.
(c) Other than those that have already been obtained and as set
forth in Schedule 4.01(c) and are in full force and effect, no
authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body or any other third
party is required for the due execution, delivery or performance by the
Shareholder of this Agreement or any Related Document to which it is or is
to be a party.
(d) Each of this Agreement and the Related Documents to which the
Shareholder is a party has been duly executed and delivered by the
Shareholder
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and is the legal, valid and binding obligation of the Shareholder,
enforceable against the Shareholder in accordance with its terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar law affecting creditor's rights generally or by general principles
of equity.
(e) The Consolidated balance sheet of each of Accuride and its
respective Subsidiaries as at December 31, 1998, and the related
Consolidated statements of income and cash flow of Accuride and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion of
Deloitte & Touche LLP, independent public accountants, copies of which have
been furnished to the Lender, fairly present in all material respects the
Consolidated financial condition of Accuride and its respective
Subsidiaries as at such date and the Consolidated results of the operations
of Accuride and its Subsidiaries for the fiscal year ended on such date,
all in accordance with generally accepted accounting principles applied on
a consistent basis (unless otherwise expressly noted therein), and since
December 31, 1998, there has been no Material Adverse Change.
(f) No information, exhibit or report furnished by the Shareholder
to the Lender in writing in connection with the negotiation of this
Agreement or the other Loan Documents or pursuant to the terms of this
Agreement contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements made herein and
therein, taken as a whole, not misleading at such time in light of the
circumstances in which the same were made, it being understood that for
purposes of this Section 4.01(f), such factual information does not include
projections and pro forma financial information.
(g) There is no action, suit, investigation, litigation or
proceeding affecting the Shareholder pending or, to the knowledge of the
Shareholder, threatened before any court, governmental agency or arbitrator
that (i) could reasonably be expected to have a Material Adverse Effect or
(ii) purports to affect the legality, validity or enforceability of this
Agreement, any other Loan Document or any Related Document or the
consummation of the transactions contemplated hereby.
(h) There are no conditions precedent to the effectiveness of this
Agreement that have not been satisfied or waived.
(i) The Shareholder has, independently and without reliance upon
the Lender and based on documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement.
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ARTICLE V
COVENANTS
SECTION 5.01 COVENANTS OF THE SHAREHOLDER. So long as any Advance
shall remain unpaid or the Lender shall have any Commitment, the Shareholder
will:
(a) PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and
maintain its existence, legal structure, legal name, rights (charter and
statutory), permits, licenses, approvals, privileges and franchises, except
to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect; PROVIDED, HOWEVER, that the Shareholder
shall not be required to preserve any right, permit, license, approval,
privilege or franchise if the Board of Directors of the Shareholder shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Shareholder and that the loss thereof is not
disadvantageous in any material respect to the Shareholder or the Lender.
(b) CONDUCT OF BUSINESS. Engage primarily in the vehicle component
business and any activity or business incidental, directly related or
similar thereto, and any other lines of business carried on by the
Shareholder on the date hereof or utilizing the Shareholder's manufacturing
capabilities on the date hereof, and/or such other businesses or activities
that constitute a reasonable extension, development or expansion thereof or
that are ancillary or reasonably related thereto.
(c) VISITATION RIGHTS. At any reasonable time and from time to
time, upon reasonable notice and during normal business hours, permit any
authorized representatives designated by the Lender to examine and make
abstracts from the records and books of account of, and visit the
properties of, the Shareholder and to discuss the affairs, finances and
accounts of the Shareholder with any of its officers or directors and with
their independent certified public accountants, PROVIDED that the
Shareholder may, if it so chooses, be present at or participate in any such
discussion.
(d) KEEPING OF BOOKS. Keep proper books of record and account, in
which full and correct entries shall be made of all financial transactions
and the assets and business of the Shareholder in accordance with GAAP.
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(e) REPORTING REQUIREMENTS. Furnish to the Lender:
(i) DEFAULT OR LITIGATION NOTICE. Promptly upon any Senior
Officer of the Shareholder obtaining knowledge thereof, notice of (i)
the occurrence of any event that constitutes a Completion Default,
which notice shall specify the nature thereof, the period of existence
thereof and what action the Shareholder proposes to take with respect
thereto, and (ii) any litigation or governmental proceeding pending
against the Shareholder that could reasonably be expected to result in
a Material Adverse Effect.
(ii) QUARTERLY FINANCIALS. As soon as available and in any
event within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of the Shareholder, a Consolidated
balance sheet of Accuride and its Subsidiaries as of the end of such
fiscal quarter and the related Consolidated statements of income and
cash flow for the period commencing at the end of the previous fiscal
quarter and ending with the end of such fiscal quarter and for the
period commencing at the end of the previous fiscal year and ending
with the end of such fiscal quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding
period of the preceding fiscal year of the Shareholder, all in
reasonable detail and duly certified (subject to year-end audit
adjustments) by the chief financial officer of Accuride as having been
prepared in accordance with GAAP, and a certificate of an officer of
the Shareholder stating that no Completion Default has occurred and is
continuing or, if a Completion Default has occurred and is continuing,
a statement as to the nature thereof and the action that the
Shareholder has taken and proposes to take with respect thereto.
(iii) ANNUAL FINANCIALS. As soon as available and in any
event within 120 days after the end of each fiscal year of the
Shareholder, a Consolidated balance sheet of the Shareholder and its
Subsidiaries as of the end of such fiscal year and the related
Consolidated statements of income and cash flow for such fiscal year
setting forth in each case in comparative form the corresponding
figures for the previous fiscal year of the Shareholder, accompanied
by an opinion which shall be unqualified as to the scope of the audit
and as to the going concern status of the Shareholder and its
Subsidiaries taken as a whole, of independent public accountants of
recognized standing, together with a certificate of such accounting
firm to the Lender stating that in the course of the regular audit of
the business of the Shareholder and its Subsidiaries, which audit was
conducted by such
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accounting firm in accordance with applicable generally accepted
auditing standards, such accounting firm has obtained no knowledge
that a Completion Default has occurred and is continuing, or if, in
the opinion of such accounting firm, a Completion Default has occurred
and is continuing, a statement as to the nature thereof.
(iv) Promptly after the sending or filing thereof, copies of
all proxy statements, financial statements and reports that the
Shareholder sends to its stockholders, and copies of all regular,
periodic and special reports, and all registration statements, that
the Shareholder files with the Securities and Exchange Commission or
any governmental authority that may be substituted therefor or any
equivalent governmental authority in Mexico, or with any national
securities exchange in the United States or Mexico (in each case to
the extent not theretofore delivered to the Lender pursuant to this
Agreement), and with reasonable promptness such other information
(financial or otherwise) as the Lender may reasonably request in
writing from time to time.
(f) Within 30 days after the date hereof, provide to the Lender a
Spanish translation of this Agreement, duly executed and delivered by the
Shareholder and in form and substance satisfactory to the Lender.
ARTICLE VI
COMPLETION DEFAULTS
SECTION 6.01 COMPLETION DEFAULTS. Each of the following events shall
be a default of the Shareholder (each a "COMPLETION DEFAULT"):
(a) PAYMENT DEFAULT. The Shareholder fails to pay or cause to be
paid, or to have paid on its behalf, on the date on which the same is due
and payable, any amount due pursuant to this Agreement and such default is
not remedied within 30 days.
(b) BREACH OF REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT. A
representation or warranty made by the Shareholder in this Agreement proves
to have been false in any material respect as and when made and the
condition causing such falsity has a material adverse effect on the ability
of the Shareholder to meet its obligations under this Agreement.
16
(c) BREACH OF COVENANT, ETC. The Shareholder fails to perform or
observe in any material respect any other term, covenant or agreement
contained herein to be performed or observed by it and such failure
continues unremedied for 30 days after notice thereof is given by the
Lender to the Shareholder.
(d) BANKRUPTCY EVENT. The Bankruptcy of the Shareholder.
(e) AGREEMENT UNENFORCEABLE. This Agreement is declared in a
final, non-appealable judgment of a court of competent jurisdiction to be
unenforceable against the Shareholder or the Shareholder shall have
repudiated its obligations hereunder. For this purpose a statement or a
dispute regarding the scope or nature of the parties' rights and
obligations under this Agreement or a failure to perform any particular
obligation as a result of such statement or dispute shall not by itself be
deemed to be a repudiation thereof other than a failure that would
otherwise constitute a Completion Default.
SECTION 6.02 COMPLETION DEFAULT REMEDIES. Upon the occurrence and
during the continuance of a Completion Default, the Lender shall be entitled to
the remedies afforded to it as set forth in the Credit Agreement.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 AMENDMENTS. This Agreement may be amended only by an
agreement in writing signed by each party hereto.
SECTION 7.02 NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) in the English language (or accompanied by an accurate
English language translation upon which any recipient shall have the right to
rely for all purposes) and mailed, telegraphed, telecopied, telexed or
delivered, if to a party hereto, at its address indicated on the signature pages
hereto, or at such other address as shall be designated by such party in a
written notice to the other parties. All such notices and communications shall,
when mailed, telegraphed, telecopied or telexed, be effective when deposited in
the mails, delivered to the telegraph company, transmitted by telecopier or
confirmed by telex answerback, respectively. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this
Agreement or of any
17
Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
SECTION 7.03 NO WAIVER; REMEDIES. No failure on the part of the
Lender 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. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 7.04 BINDING EFFECT. This Agreement shall become effective
when executed and delivered by the parties hereto and shall thereafter be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 7.05 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.
SECTION 7.06 [Intentionally omitted].
SECTION 7.07 JURISDICTION, ETC. (a) Each of the parties hereto
irrevocably agrees that any legal action, suit or proceeding arising out of or
relating to this Agreement may be brought in the courts of the State of New
York. Final judgment against the Borrower or the Shareholder in any such
action, suit or proceeding shall be conclusive and may be enforced in any other
jurisdiction, including Mexico, by suit on the judgment, a certified or
exemplified copy of which shall be conclusive evidence of the judgment, or in
any other manner provided by law.
(b) By the execution and delivery of this Agreement, the each of
the parties irrevocably submits to the non-exclusive jurisdiction of the courts
of the State of New York and of the United States of America located in the
Southern District of New York in any such action, suit or proceeding and
designates, appoints and empowers CT Corporation Systems, at 1633 Broadway, New
York, NY 10019 as its authorized agent to receive for and on its behalf service
of any summons, complaint or other legal process in any such action, suit or
proceeding in the State of New York for so long as any obligation of the
Borrower or the Shareholder shall remain outstanding hereunder. The Borrower
and the Shareholder shall grant an irrevocable power of attorney to CT
Corporation Systems in respect of such appointment and shall maintain such power
of attorney in full
18
force and effect for so long as any obligation of the Borrower or the
Shareholder shall remain outstanding hereunder.
(c) Nothing in this Agreement shall affect the right of the Lender
to commence legal proceedings or otherwise sue the Borrower in Mexico or any
other appropriate jurisdiction, or to serve process, pleadings and other legal
papers upon the Borrower or the Shareholder in any manner authorized by the laws
of any such jurisdiction.
(d) As long as this Agreement remains in force, the Borrower and
the Shareholder shall maintain a duly appointed agent for the service of
summons, complaint and other legal process in New York, New York, United States,
for purposes of any legal action, suit or proceeding the Lender may bring in
respect of this Agreement. The Borrower shall keep the Lender advised of the
identity and location of such agent.
(e) The Borrower and the Shareholder also irrevocably consent, if
for any reason its authorized agent for service of process of summons, complaint
and other legal process in any such action, suit or proceeding is not present in
New York, New York, service of such papers may be made out of those courts by
mailing copies of the papers by registered United States air mail, postage
prepaid, to the Borrower and the Shareholder at its address specified on the
signature pages hereto. In such a case, the Lender shall also send by telex or
facsimile, or have sent by telex or facsimile, a copy of the papers to the
Borrower and the Shareholder.
(f) Service in the manner provided in subsection (e) above in any
such action, suit or proceeding will be deemed personal service, will be
accepted by the Borrower and the Shareholder as such and will be valid and
binding upon the Borrower and the Shareholder for all purposes of any such
action, suit or proceeding.
(g) The Borrower and the Shareholder hereby irrevocably waive: (i)
any objection which it may have now or in the future to the laying of the venue
of any such action, suit or proceedings in any court referred to in this
Section; and (ii) any claim that any such action, suit or proceedings has been
brought in an inconvenient forum.
SECTION 7.08 JUDGMENT. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder in Dollars
into another currency, the parties hereto agree, to the fullest extent that they
may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Lender could purchase Dollars with
such other currency at Citibank in New York, New York on the Business Day
preceding that on which final judgment is given.
19
(b) The obligations of the Borrower and the Shareholder in respect
of any sum due from it to the Lender hereunder held by the Lender shall,
notwithstanding any judgment in a currency other than Dollars be discharged only
to the extent that on the Business Day of receipt by the Lender of any sum
adjudged to be so due in such other currency the Lender may in accordance with
normal banking procedures purchase Dollars with such other currency; if the
Dollars so purchased are less than the sum originally due by the Borrower or the
Shareholder to the Lender in Dollars, the Borrower and the Shareholder agree, as
a separate obligation and notwithstanding any such judgment, to indemnify the
Lender against such loss, and if the Dollars so purchased exceed the sum
originally due by the Borrower or the Shareholder to the Lender in Dollars, the
Lender agrees to remit to the relevant party such excess.
SECTION 7.09 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, United States
of America.
SECTION 7.10 THIRD PARTY BENEFICIARIES. This Agreement is for the
benefit of the parties hereto and their successors and permitted assigns and
nothing herein expressed or implied shall give or be construed to give any
person or entity, other than the parties hereto and such successors and assigns,
any legal or equitable rights hereunder, except that the parties hereto agree
that each Participant is a third party beneficiary to this Agreement, entitled
to all the rights accruing thereto.
SECTION 7.11 ENTIRE AGREEMENT. This Agreement and the Exhibits and
Schedules hereto amend and restate in its entirety the Original Completion
Guaranty, constitute the entire agreement between the parties with respect to
the subject matter hereof and supersede all prior and contemporaneous
agreements, understandings, negotiations, correspondence, undertakings and
communications, both oral and written, between the parties with respect to the
subject matter hereof, including, without limitation, those provisions of the
Accuride de Mexico, S.A. de C.V. Summary of Terms and Conditions (finally
negotiated by the parties in May 1998) that deal with the subject of a
"Completion Guaranty". There are no restrictions, promises, representations,
warranties, covenants or undertakings by or between the parties with respect to
the subject matter hereof other than those expressly set forth or referred to
herein.
SECTION 7.12 WAIVER OF JURY TRIAL. The Borrower, the Shareholder and
the Lender irrevocably waive all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to
20
this Agreement or the actions of the Lender in the negotiation, administration,
performance or enforcement thereof.
21
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
ACCURIDE CORPORATION
By:
----------------------------------------
Name:
Title:
Address: 2315 Adams Lane
P.O. Box 40
Henderson, KY 42420
United States of America
Attn: William Geubel
with a copy to:
Kohlberg Kravis Roberts & Co., L.P.
2800 Sand Hill Road, Suite 200
Menlo Park, CA 94205
Attn: Todd Fisher
CITIBANK MEXICO, S.A.,
GRUPO FINANCIERO CITIBANK
By:
----------------------------------------
Name:
Title:
Address: Reforma 390
Mexico City, D.F. 06696
Mexico
Accepted and agreed to as of the
22
date first written above:
ACCURIDE DE MEXICO, S.A. DE C.V.
By:
--------------------------
Name:
Title:
Address: Avenida Universidad 1011 Norte,
Planta Baja
San Nicolas de los Garza
Nuevo Leon
C.P. 66450 Mexico
23
Appendix A-1
to Completion Guaranty
FORM OF PHYSICAL FACILITIES CERTIFICATE
CITIBANK MEXICO, S.A.,
GRUPO FINANCIERO CITIBANK, as Lender
Grupo Financiero Citibank
Reforma 390,
Mexico City, Mexico, D.F. 06695
Attention: Doug Schmidt
Re: ACCURIDE DE MEXICO, S.A. DE C.V.
Ladies and Gentlemen:
This is the certificate referred to in clause (a) of Section 1.02 of
the Amended and Restated Completion Guaranty Agreement, dated as of May __, 1999
among the Borrower, ACCURIDE CORPORATION, a Delaware corporation, and CITIBANK,
S.A., GRUPO FINANCIERO CITIBANK, as the same may be amended, supplemented or
otherwise modified from time to time (the "COMPLETION GUARANTY"). Capitalized
terms herein and in the appendices hereto, except as otherwise defined herein,
shall have the meanings assigned to them in the Completion Guaranty.
I, [Name of Senior Officer], as [_______________________] of the
Borrower, hereby certify after due inquiry that:
(a) As of the date hereof, the physical facilities and utilities of
the Plant as described in Appendix A-1-A (the "PHYSICAL FACILITIES") have been
installed substantially in accordance with the design documents, as amended in
accordance with the provisions of Appendix A-1-A, are substantially complete and
have become operational.
(b) As of the date hereof, each of the Physical Facilities has been
substantially completed, and each has been accepted by the Borrower from the
A-1-24
contractors or sub-contractors in accordance with the contracts or sub-contracts
for the construction or installation of each such facility.
(c) Attached to this Physical Facilities Certificate is a true and
complete copy of the Acknowledgment of the Independent Engineer in connection
with this Physical Facilities Certificate.
The Borrower hereby certifies, after due inquiry, that the facts
stated by the Borrower in this Certificate are true and complete.
IN WITNESS WHEREOF, I, [name of Senior Officer], have caused this
certificate to be duly executed.
Dated:
ACCURIDE DE MEXICO, S.A. DE C.V.
By:
-----------------------------------
Name:
Title: [Senior Officer]
ACKNOWLEDGMENT
This Acknowledgment is being delivered by the undersigned, [Name of
Independent Engineer], a [________________] duly organized and validly existing
under the laws of the [State] of [_______________], in connection with the
Amended and Restated Completion Guaranty Agreement, dated as of May __, 1999,
among the Borrower, ACCURIDE CORPORATION, a Delaware corporation, and CITIBANK
MEXICO, S.A., GRUPO FINANCIERO CITIBANK, as the same may be amended,
supplemented or otherwise modified from time to time.
[Name of Independent Engineer] hereby certifies that it has reviewed
the Physical Facilities Certificate dated ______________ and has performed such
inspections which we have, in our reasonable judgment, deemed necessary for
purposes of this acknowledgment. Such inspections, including the names of our
employees or agents who performed them, are described in Appendix A-1-B to this
acknowledgment. Based on such inspections, we hereby certify that, to the best
of our knowledge, each of the certifications of the Borrower set forth in the
Physical Facilities Certificates is true and correct in all material respects as
of the date hereof.
IN WITNESS WHEREOF, [Name of Independent Engineer] has caused this
acknowledgment to be duly executed.
Dated:
[Name of Independent Engineer]
By:
------------------------------
Name:
Title:
Appendix A-1-A
to Completion Guaranty
PLANT PHYSICAL FACILITIES
The Plant's physical facilities shall comprise at a minimum those
facilities described hereafter. Physical facilities shall include facilities
installed by the Plant to connect to third parties. Design modifications and
improvements, as may be approved by the Borrower from time to time, will be
accommodated within this appendix provided that these amendments are documented,
transmitted to the Independent Engineer, approved by the Independent Engineer,
if required, and a final complete listing of these changes is provided to the
Independent Engineer prior to Completion.
Approval of the Independent Engineer is required for:
(i) Modifications to the physical facilities including but not
limited to changes in:
- Manufacturing equipment
- Environmental facilities
- Product lines
provided that only such modifications which individually or in
the aggregate materially impair the Plant's performance shall
require the Independent Engineer's approval.
(ii) Those modifications which could materially impair the expected
operating or maintenance costs or expected ongoing capital
expenditures.
(iii) Modifications which could impair environmental compliance or
any permit or license (in place or required).
(iv) Modifications or contractor change orders which are estimated
to cost in aggregate more than $500,000 for changes to the
facilities or which could affect schedule sequencing by more
than 20 days.
REQUIRED PHYSICAL FACILITIES
1. New Spinner #1
2. New Truing Machine
3. Line A-8
4. Washer
5. Waste Water Treatment Facility
6. E-Coat System
7. Line 427
8. Line 468 or equivalent
9. Raw Material Crane
10. Emergency Electrical Plant to Protect E-Coat System
11. 600 T Press or equivalent
12. Decoiler
13. New Spinner #2
14. New Spinner #3
15. SARA Line with Decoiler
16. Light Disc Press Line (L-4)
17. Line A-11 with New Truing Machine and Washer
Appendix A-2
to Completion Guaranty
FORM OF OPERATIONS CERTIFICATE
CITIBANK MEXICO, S.A.,
GRUPO FINANCIERO CITIBANK, as Lender
Grupo Financiero Citibank
Reforma 390,
Mexico City, Mexico, D.F. 06695
Attention: Doug Schmidt
Re: ACCURIDE DE MEXICO, S.A. DE C.V.
Ladies and Gentlemen:
This is the certificate referred to in clause (b) of Section 1.02 of
the Amended and Restated Completion Guaranty Agreement, dated as of May __,
1999, among the Borrower, ACCURIDE CORPORATION, a Delaware corporation, and
CITIBANK MEXICO, S.A., GRUPO FINANCIERO CITIBANK, as the same may be amended,
supplemented or otherwise modified from time to time (the "COMPLETION
GUARANTY"). Capitalized terms herein and in the appendices hereto, except as
otherwise defined herein, shall have the meanings assigned to them in the
Completion Guaranty.
I, [Name of Senior Officer], as [________________] of the Borrower,
hereby certify after due inquiry that:
(a) Attached to this certificate as Appendix B-2-A are copies of
operating records, test results, inspection reports and other documentation
relating to production by the Plant during the periods referred to in clause (c)
below. Such documentation accurately reflects, in all material respects, the
production of the Plant during the period to which it relates.
(b) All sampling procedures relevant to the matters covered by this
certificate were conducted by Borrower in accordance with Prudent Industry
Practices.
(c) For purposes of this Operations Certificate, the first test
period (the "FIRST TEST PERIOD") began on [date] and ended on [date] and was
comprised of 5 consecutive Business Days [or such shorter period reasonably
acceptable to the Independent Engineer, to the extent reasonably justified based
upon the Borrower's current sales volume and other relevant factors], each of
which days was a scheduled operating day, and the second test period (the"SECOND
TEST PERIOD", and together with the First Test Period, the "TEST PERIODS") began
on [date] and ended on [date] and was comprised of 5 consecutive Business Days
[or such shorter period reasonably acceptable to the Independent Engineer, to
the extent reasonably justified based upon the Borrower's current sales volume
and other relevant factors], each of which days was a scheduled operating day.
Approximately one month elapsed between the first day of the First Test Period
and the last day of the Second Test Period.
(d) All product units manufactured during the Test Periods
completed required qualification testing, and processes were verified to insure
that parts met dimensional requirements.
(e) Hourly production rates during the Test Periods were determined
by the total number of good parts that were completed on the specific lines for
the hours scheduled for the production run during the Test Period. Total hours
included set-up and required maintenance completed during the Test Period
("TOTAL HOURS"). The average hourly rates of production, expressed in units
produced per hour, for the Total Hours, for each of the lines or operations
listed below, were each within 90% of the hourly rate listed after such line or
operation:
Line/Operation Hour Rate (Units)
-------------- -----------------
Line 427 150
Spinners 52 light discs (each Spinner)
E-Coat 570 (Wheels and Rims)
[Line A-8 138]
SARA 225
All the foregoing tests, except as specifically otherwise provided
herein, in this Section (e) have been performed during each of the Test Periods.
(f) During the First Test Period the actual quantities were:
Scheduled Scheduled Actual Production
Quantities Actual Quantities Production Hours Hours
---------- ----------------- ---------------- -----------------
(g) During the Second Test Period the actual quantities were:
Scheduled Scheduled Actual Production
Quantities Actual Quantities Production Hours Hours
---------- ----------------- ---------------- -----------------
(h) Attached to this Operations Certificate is a true and complete
copy of an Acknowledgment of the Independent Engineer in connection with this
Operations Certificate.
(i) The Plant is being operated by the Borrower in accordance with
Prudent Industry Practices.
The Borrower hereby certifies, after due inquiry, that the facts
stated by the Borrower in this Certificate are true and complete.
IN WITNESS WHEREOF, I, [name of Senior Officer], have caused this
certificate to be duly executed.
Dated:
ACCURIDE DE MEXICO, S.A. DE C.V.
By:
---------------------------
Name:
Title: [Senior Officer]
ACKNOWLEDGMENT
This Acknowledgment is being delivered by the undersigned, [Name of
Independent Engineer], a [________________] duly organized and validly existing
under the laws of the [State] of [_______________], in connection with the
Amended and Restated Completion Guaranty Agreement, dated as of May __, 1999,
among the Borrower, ACCURIDE CORPORATION, a Delaware corporation, and CITIBANK
MEXICO, S.A., GRUPO FINANCIERO CITIBANK, as the same may be amended,
supplemented or otherwise modified from time to time.
[Name of Independent Engineer] hereby certifies that it has reviewed
the Operations Certificate dated [___________] and has performed such
inspections, observations, analyses and other procedures which we have, in our
reasonable judgment, deemed necessary for purposes of this acknowledgment. Such
procedures, including the names of our employees or agents who performed them,
are described in Appending B-2-B to this acknowledgment. Based on such
procedures described above, we hereby certify that, to the best of our
knowledge, each of the certifications of the Borrower set forth in the
Operations Certificate is true and correct in all material respects as of the
date hereof.
IN WITNESS WHEREOF, [name of Independent Engineer] has caused this
acknowledgment to be duly executed.
Dated:
[Name of Independent Engineer]
By:
---------------------------
Name:
Title:
Appendix A-3
to Completion Guaranty
FORM OF LEGAL CONDITIONS CERTIFICATE
CITIBANK MEXICO, S.A.
GRUPO FINANCIERO CITIBANK, as Lender
Grupo Financiero Citibank
Reforma 390,
Mexico City, Mexico, D.F. 06695
Attention: Doug Schmidt
Re: ACCURIDE DE MEXICO, S.A. DE C.V.
Ladies and Gentlemen:
This is the certificate referred to in clause (c) of Section 1.02 of
the Amended and Restated Completion Guaranty Agreement, dated as of May __,
1999, among the Borrower, ACCURIDE CORPORATION, a Delaware corporation, and
CITIBANK MEXICO, S.A., GRUPO FINANCIERO CITIBANK, as the same may be amended,
supplemented or otherwise modified from time to time (the "COMPLETION
GUARANTY"). Capitalized terms herein and in the appendices hereto, except as
otherwise defined herein, shall have the meanings assigned to them in the
Completion Guaranty.
I, [Name], as _________________________ of the Borrower, hereby
certify after due inquiry that, to the best of my knowledge, as of the date
hereof:
(a) Each of the Construction Documents remains in full force and
effect.
(b) The authorizations, approvals and consents from governmental
authorities in the United Mexican States listed in Schedule 4.01(d)(ii) to the
Credit Agreement that are still required as of the date hereof, any others that
as of the date hereof have become required for, and in each case are material
to, operation of the Plant substantially as it was operated during the Test
Period referred to in the Operations Certificate, and those which are necessary
for the current stage of development of the Plant are in full force and effect
and not subject to appeal.
A-3-33
(c) The security interests required to be created by or pursuant to
the Collateral Documents are in full force and effect.
(d) No Default has occurred and is continuing.
(e) There are no contractors' liens (other than Permitted Liens as
such term is defined in the Credit Agreement) under Mexican law or under any
Construction Documents on any of the Physical Facilities of the Borrower.
The Borrower hereby certifies, after due inquiry, that the facts
stated by the Borrower in this Certificate are true and complete.
IN WITNESS WHEREOF, I, [name] have caused this certificate to be duly
executed.
Dated:
ACCURIDE DE MEXICO, S.A. DE C.V.
By:
---------------------------
Name:
Title:
A-3-34
Appendix A-4
to Completion Guaranty
FORM OF INSURANCE CERTIFICATE
CITIBANK MEXICO, S.A.
GRUPO FINANCIERO CITIBANK, as Lender
Grupo Financiero Citibank
Reforma 390,
Mexico City, Mexico, D.F. 06695
Attention: Doug Schmidt
Re: ACCURIDE DE MEXICO, S.A. DE C.V.
Ladies and Gentlemen:
This is the certificate referred to in clause (d) of Section 1.02 of
the Amended and Restated Completion Guaranty Agreement, dated as of May __,
1999, among the Borrower, ACCURIDE CORPORATION, a Delaware corporation, and
CITIBANK MEXICO, S.A., GRUPO FINANCIERO CITIBANK, as the same may be amended,
supplemented or otherwise modified from time to time (the "COMPLETION
GUARANTY"). Capitalized terms herein and in the appendices hereto, except as
otherwise defined herein, shall have the meanings assigned to them in the
Completion Guaranty.
I, [Name], as _________________________ of the Borrower, hereby
certify after due inquiry that, as of the date hereof all minimum insurance
coverage required to be now in effect pursuant to Section 5.01(d) of the Credit
Agreement is in full force and effect.
Attached to this Insurance Certificate is a true and complete copy of
the Acknowledgment of the Insurance Consultant in connection with this Insurance
Certificate.
The Borrower hereby certifies, after due inquiry, that the facts
stated by the Borrower in this Certificate are true and complete.
A-4-35
IN WITNESS WHEREOF, I, [name] have caused this certificate to be duly
executed.
Dated:
ACCURIDE DE MEXICO, S.A. DE C.V.
By:
---------------------------
Name:
Title:
ACKNOWLEDGMENT
This Acknowledgment is being delivered by the undersigned, [Name of
Insurance Consultant], a [________________] duly organized and validly existing
under the laws of the [State] of [_______________], in connection with the
Amended and Restated Completion Guaranty Agreement, dated as of May __, 1999
among the Borrower, ACCURIDE CORPORATION, a Delaware corporation, and CITIBANK
MEXICO, S.A., GRUPO FINANCIERO CITIBANK, as the same may be amended,
supplemented or otherwise modified from time to time.
[Name of Insurance Consultant], hereby certifies that it has reviewed
the Insurance Certificate dated [___________] and has performed such reviews and
other procedures which we have, in our reasonable judgment, deemed necessary for
purposes of this acknowledgment. Such procedures, including the names of our
employees or agents who performed them, are described in Appendix A-4-A to this
acknowledgment. Based on such procedures, we hereby certify that, to the best
of our knowledge, each of the certifications of the Borrower set forth in the
Insurance Certificate is true and correct in all material respects as of the
date hereof.
IN WITNESS WHEREOF, [name of Insurance Consultant] has caused this
acknowledgment to be duly executed.
Dated:
[Name of Insurance Consultant]
By:
---------------------------
Name:
Title: