Exhibit 10.2


 


LAST OUT DEBT
AGREEMENT


 


This LAST OUT DEBT AGREEMENT (this “Agreement”),
dated as of February 4, 2009, is entered into by and between Accuride
Corporation, a Delaware corporation (the “Company”), and Sun Accuride
Debt Investments, LLC  (the “Investor”).  Certain
capitalized terms used herein are defined in Section 4.1 hereof.


 


W  I  T  N  E  S
S  E  T  H:


 


WHEREAS, the Company is a party to that certain Fourth
Amended and Restated Credit Agreement, dated as of January 31, 2005, among
the Company, Accuride Canada Inc., the banks, financial institutions and other
institutional lenders listed on the signature pages thereto, Citicorp USA, Inc.,
and such other agents and arrangers party thereto, as amended by the First
Amendment dated as of November 28, 2007 (the “Credit Agreement”);


 


 WHEREAS, the
Company anticipates that it will be in default of certain financial covenants
in the Credit Agreement as of December 31, 2008 and desired that the
Credit Agreement be amended to reset certain financial covenants and provide
other relief favorable to the Company;


 


WHEREAS, the Investor is a Term Lender under the
Credit Agreement holding loans in the original principal amount of $70,065,846
(the “Term Loans”);


 


WHEREAS, the Company has negotiated an amendment to
the Credit Agreement to reset certain of the financial covenants and provide
other relief favorable to the Company (the Credit Agreement as so amended, the “Amended
Credit Agreement”); and


 


WHEREAS, the Investor is willing to enter into such
amendment on the terms and conditions set forth in this Agreement.


 


NOW, THEREFORE, in consideration of the premises, and
of the representations, warranties, covenants and agreements set forth herein,
the parties agree as follows:


 


Section I


 


CLOSING TRANSACTIONS


 


1.1           Closing.  The closing of the Transaction (the “Closing”)
will take place at the offices of Kirkland & Ellis LLP, 200 E. Randolph
Drive, Chicago, Illinois, 60601, at 10:00 a.m., local time, on the date hereof
(the “Closing Date”).


 


1.2           Closing Transactions.  At the Closing:


 


(a)                                  the
Investor, the Company, the Company’s Subsidiaries and the other parties thereto
shall execute and deliver to the other parties thereto the Amended Credit
Agreement;


 


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(b)                                 the
Company shall duly adopt the amended and restated bylaws attached hereto as Annex
A (the “Amended and Restated Bylaws”) and deliver to the Investor a
certified copy thereof, as the Company’s bylaws in effect as of the Closing;


 


(c)                                  the
Company shall file with the Secretary of State of the State of Delaware the
certificate of designation containing the provisions in the form attached
hereto as Annex B (the “Certificate of Designation”) creating a
series of one share of preferred stock designated as Series A Preferred
Stock;


 


(d)                                 the
Company shall deliver to the Investor certified copies of the Company’s
certificate of incorporation and or any document amendatory or supplemental
thereto including the Certificate of Designation, each as in effect at the
Closing;


 


(e)                                  the
Company shall deliver the Series A Preferred Share (the “Preferred
Share”) to the Investor;


 


(f)                                    the
Company shall execute and deliver the warrant attached hereto as Annex C
(the “Warrant”, and together with the Preferred Share, the “Issued
Securities”) to the Investor;


 


(g)                                 the
Company and the Investor shall each execute and deliver to the other party the
registration agreement attached hereto as Annex D (the “Registration
Rights Agreement”);


 


(h)                                 the
Company and an Affiliate of the Investor shall each execute and deliver to the
other party the consulting agreement attached hereto as Annex E (the “Consulting
Agreement”);


 


(i)                                     the
Company and each of Brian Urbanek, Jason Neimark, Douglas Werking, Thomas
Taylor and Donald Mueller shall each execute and deliver to the other party an
indemnification agreement substantially in the form attached hereto as Annex
F;


 


(j)                                     the
Company shall deliver to the Investor the Indemnification Subordination
Agreements attached hereto as Annex G;


 


(k)                                  the
Company shall deliver to the Investor certified copies of the resolutions duly
adopted by the board of directors of the Company authorizing the execution,
delivery and performance of this Agreement and the transactions contemplated
hereby;


 


(l)                                     the
Company shall deliver to the Investor certified copies of the resolutions duly
adopted by the boards of directors of each Subsidiary of the Company (as
applicable) authorizing the transactions contemplated hereby and the execution,
delivery and performance of any agreements executed by such subsidiary in
connection therewith;


 


(m)                               the
Company shall deliver to the Investor copies of all governmental consents,
approvals and filings required in connection with the consummation of the
transactions hereunder pursuant to the laws of Delaware; and


 


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(n)                                 the
Company shall reimburse the Investor and its Affiliates (together, the “Investor
Parties”) for the fees, costs and expenses
incurred by the Investor Parties as described in Section 3.8
hereof.


 


Section II


 


REPRESENTATIONS AND WARRANTIES


 


2.1           Representations and Warranties of
the Company.  The Company represents
and warrants to the Investor that as of the date hereof and as of the Closing
Date (or such other date specified herein):


 


(a)                                  Organization,
Authority and Significant Subsidiaries. 
The Company is a corporation duly organized, validly existing and in
good standing under the laws of Delaware and is qualified to do business in
every jurisdiction in which its ownership of property or conduct of business
requires it to qualify.  The Company
possesses all requisite corporate power and authority and all material
licenses, permits and authorizations necessary to own and operate its
properties, to carry on its business as now conducted and presently proposed to
be conducted and to carry out the transactions contemplated by this
Agreement.  Each Subsidiary of the
Company has been duly organized and is validly existing in good standing under
the laws of its jurisdiction of organization.


 


(b)                                 Capitalization.


 


(i)                                     The
authorized capital stock of the Company consists of (a) 5,000,000 shares
of preferred stock and (b) 100,000,000 shares of Common Stock.  As of January 23, 2008 (the “Common
Stock Capitalization Date”), zero shares of preferred stock were issued and
outstanding and 36,323,698 shares of Common Stock were issued, of which
36,184,053 were outstanding.  The
36,323,698 shares of issued Common Stock includes 139,645 shares of Common
Stock held by the Company in its treasury account
and 250,000 shares of restricted Common Stock held for the benefit of Mr. William
M. Lasky.  As of the Common Stock
Capitalization Date, there were outstanding (i) options to purchase
549,525 shares of Common Stock, (ii) stock appreciation rights to acquire
809,051 shares of Common Stock, (iii) deferred rights to acquire 8,750
shares of Common Stock, (iv) restricted stock units to acquire 217,883
shares of Common Stock and (v) restricted stock awards to acquire 250,000
shares of Common Stock (as described in the preceding sentence). The
outstanding shares of Common Stock have been duly authorized and are validly
issued and outstanding, fully paid and nonassessable, and subject to no
preemptive rights (and were not issued in violation of any preemptive rights).  Except as set forth above or in connection
with this Agreement, as of the Closing Date, there are no shares of Common
Stock reserved for issuance, the Company does not have outstanding any
securities providing the holder the right to acquire Common Stock and the Company
does not have any commitment to authorize, issue or sell any Common Stock.  Since the Common Stock Capitalization Date,
the Company has not issued any shares of Common Stock, other than upon the
exercise of stock options or delivered under awards granted under the Company’s
2005 Incentive Award Plan, as amended and restated effective September 22,
2008.  As of the Closing Date, the
Company is not subject to any obligation (contingent or otherwise) to 


 


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repurchase or otherwise acquire or retire any shares of its capital
stock or any warrants, options or other rights to acquire its capital stock.


 


(ii)                                  There
are no statutory or contractual stockholder’s preemptive rights or rights of
refusal with respect to the issuance of the Warrant or the issuance of Common
Stock upon exercise of the Warrant.  The
offer and issuance of the Warrant does not require registration or
qualification under the Securities Act of 1933, as amended (the “Securities
Act”), or applicable state securities laws. 
To the best of the Company’s knowledge, there are no agreements in
effect between the Company’s stockholders with respect to the voting or
transfer of the Company’s capital stock, except for the Amended and Restated
Registration Rights Agreement, dated January 31, 2005, by and among the
Company and the stockholders listed on the signature pages thereto.


 


(c)                                  Preferred
Share.   The Company has adopted,
executed and filed the Certificate of Designation in the form attached hereto
as Annex A with the Secretary of State of the State of Delaware, and
such Certificate of Designation is in full force and effect.  The Preferred Share has been duly and validly
authorized, and, when issued and delivered pursuant to this Agreement, the Preferred
Share will be duly and validly issued, fully paid and non-assessable, free from
all taxes, liens and charges and will not be subject to preemptive rights of
any other stockholders of the Company. 
The Preferred Share was issued without violation of any applicable law
or governmental regulation.  The Company
has not adopted or filed any other document designating terms, relative rights
or preferences of its preferred stock other than the Certificate of Designation.


 


(d)                                 The
Warrant and Warrant Shares.  The
Warrant has been duly authorized and, when executed and delivered as
contemplated hereby, will constitute a valid and legally binding obligation of
the Company in accordance with its terms, and the shares of Common Stock
issuable upon exercise of the Warrant (the “Warrant Shares”) have been
duly authorized and reserved for issuance upon exercise of the Warrant and when
so issued will be validly issued, fully paid and non-assessable, free from all
taxes, liens and charges and will not be subject to preemptive rights of any
other stockholders of the Company.


 


(e)                                  Authorization;
No Breach.  The execution, delivery
and performance of this Agreement, the Amended Credit Agreement, the Warrant,
the Registration Rights Agreement, the Consulting Agreement and all other
agreements and instruments contemplated hereby (including the Transaction
Documents) to which the Company is a party and the Certificate of Designation
and Amended and Restated Bylaws have been duly, validly and unanimously
authorized by the board of directors of the Company. This Agreement, the
Amended Credit Agreement, the Warrant, the Registration Rights Agreement, the
Consulting Agreement, the Certificate of Designation and all other agreements
and instruments contemplated hereby (including the Transaction Documents) to
which the Company is a party each constitute a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors’ rights generally.  The Letter constitutes a valid and binding
obligation of the Specified Director (as defined in Section 3.1(d)),
enforceable against the Specified Director in accordance with its terms.  The Amended and Restated Bylaws attached
hereto as Annex B are in full force and effect as so amended.  The



 


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execution and delivery by the Company of this
Agreement, the Amended Credit Agreement, the Warrant, the Registration Rights
Agreement, the Consulting Agreement and all other agreements and instruments
contemplated hereby to which the Company is a party, the offering  and issuance of the Warrant, the issuance
of Warrant Shares,  the amendment
of the Company’s bylaws and the filing of the Certificate of Designation, and
the fulfillment of and compliance with the respective terms hereof and thereof
by the Company, do not and shall not (i) conflict with or result in a
breach of the terms, conditions or provisions of, (ii) constitute a
default under, (iii) result in the creation of any lien, security
interest, charge or encumbrance upon the Company’s or any of its Subsidiaries’
capital stock or assets pursuant to, (iv) give any third party the right
to modify, terminate or accelerate any obligation under, or (v) require
any authorization, consent, approval, exemption, registration, review by or
other action by or notice or declaration to, or filing (other than any current
report on Form 8-K required to be filed with the SEC) with, any court or
administrative or governmental body or agency pursuant to, the certificate of
incorporation (including the Certificate of Designation) or bylaws of the
Company or any of its Subsidiaries, or any material law, statute, rule or
regulation to which the Company or any of its Subsidiaries are subject, or any
material agreement, instrument, order, judgment or decree to which the Company
or any of its Subsidiaries is subject. 
No other corporate proceedings are necessary for the execution and
delivery by the Company of this Agreement, the performance of its obligations
hereunder or the consummation by it of the transactions contemplated hereby,
except for such proceedings, including obtaining the affirmative vote of the
Company’s stockholders, as may be required by the applicable rules and
regulations of any United States national securities exchange on which any
class of the Company’s capital stock may be listed at the time of exercise of
the Warrant and issuance of the Warrant Shares.


 


(f)                                    Amended
Credit Agreement.  The Company and
its Subsidiaries shall have entered into the Amended Credit Agreement and the
Amended Credit Agreement is in full force and effect.


 


(g)                                 Company
Financial Statements.


 


(i)                                     The
consolidated financial statements of the Company and its consolidated
subsidiaries included or incorporated by reference in the reports and forms
filed with the Securities and Exchange Commission (the “Commission”)
under Sections 13(a), 14(a) or 15(d) of the Securities Exchange Act
of 1934 (the “Exchange Act”) on or after January 1, 2008 and prior
to the Closing (the “SEC Reports”) present fairly in all material
respects the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated therein and the
consolidated results of their operations for the periods specified therein; and
except as stated therein, such financial statements were prepared in conformity
with GAAP applied on a consistent basis (except as may be noted therein).


 


(ii)                                  Deloitte &
Touche LLP, who have certified certain financial statements of the Company and
its Subsidiaries, are independent accountants as required by the Exchange Act
and the rules and regulations of the Commission and the Public Company
Accounting Oversight Board.


 


(h)                                 No
Material Adverse Effect.  To the Company’s knowledge, except as set
forth on Schedule 2.1(h), since December 31, 2007, no fact,
circumstance, event, change, 


 


5

















 


occurrence, condition or development has occurred that, individually or
in the aggregate, has had or would be reasonably likely to have a material
adverse effect on the financial condition of the Company and its Subsidiaries,
taken as a whole.


 


(i)                                     Reports.


 


(i)                                     Since
December 31, 2007, the Company has complied in all material respects with
the filing requirements of Sections 13(a), 14(a) and 15(d) of the
Exchange Act.


 


(ii)                                  The
SEC Reports, when they became effective or were filed with the Commission, as
the case may be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents, when they
became effective or were filed with the Commission, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading.


 


(j)                                     Amended
Credit Agreement Representations and Warranties.  Each of the Company’s representations and
warranties set forth in the Amended Credit Agreement, as modified by the
disclosure schedules therein, are true and correct as of the date hereof, and
each such representation and warranty is incorporated mutatis mutandis as if
set forth fully in this Agreement and as if applicable to the Investor and this
Agreement.


 


(k)                                  Brokerage.  Except
for fees set forth on Schedule 2.1(k), there are no claims for
brokerage commissions, finders’ fees or similar compensation in connection with
the transactions contemplated by this Agreement based on any arrangement or
agreement binding upon the Company or any of its Subsidiaries.  The Company shall pay, and hold the Investor
harmless against, any liability, loss or expense (including reasonable
attorneys’ fees and out-of-pocket expenses) arising in connection with any such
claim.


 


2.2           Representations and Warranties of
the Investor.  The Investor hereby
represents and warrants to the Company that as of the date hereof and the
Closing Date:


 


(a)                                  Status.  The Investor has been duly organized and is
validly existing as a limited liability company under the laws of Delaware.


 


(b)                                 Authorization;
No Breach.  The execution, delivery
and performance of this Agreement, the Amended Credit Agreement, the
Registration Rights Agreement, and all other agreements and instruments
contemplated hereby to which the Investor is a party have been duly and validly
authorized by all necessary action of the Investor.  This Agreement, the Amended Credit Agreement,
the Registration Rights Agreement, and all other agreements and instruments
contemplated hereby to which the Investor is a party each constitute a valid
and binding obligation of the Investor, enforceable in accordance with its
terms.  The execution and delivery by the Investor of this Agreement, the
Amended Credit Agreement, the Registration Rights Agreement and all other
agreements and instruments contemplated hereby to which the Investor is a
party, and the fulfillment of and compliance with the respective terms hereof
and thereof by the Investor, do not and shall not (i) conflict with or
result in a breach of the terms, 


 


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conditions or provisions of, (ii) constitute a default under, (iii) result
in the creation of any lien, security interest, charge or encumbrance upon the
Investor’s membership interests or assets pursuant to, (iv) give any third
party the right to modify, terminate or accelerate any obligation under, or (v) require
any authorization, consent, approval, exemption or other action by or notice or
declaration to, or filing (other than any report required to be filed with the
SEC) with, any court or administrative or governmental body or agency pursuant
to, the governing documents of the Investor, or any law, statute, rule or
regulation to which the Investor is subject, or any agreement, instrument,
order, judgment or decree to which the Investor is subject.


 


(c)                                  Accredited
Investor.  The Investor is an
accredited investor within the meaning of Rule 501(a) under the
Securities Act.


 


(d)                                 Investment
Intent.  The Investor will acquire
for investment for the Investor’s own account, not as a nominee or agent, and
not with a view to the resale or distribution
of any part thereof in, or otherwise distributing, the Issued Securities.


 


(e)                                  Investor
Capacity.  The Investor is able to bear the economic risk of an investment in the
Issued Securities and has sufficient net worth to sustain a loss of all of its
investment in the Issued Securities if such a loss should occur.


 


(f)                                    Due Diligence.  The
Investor has had adequate opportunity to obtain documents, records and
information from and to ask questions of, and receive answers from, the Company’s
officers, employees, agents, accountants and representatives concerning the
business, operations, financial condition, assets, liabilities and all other
matters relating to the Company and its Subsidiaries relevant to its investment
in the Issued Securities (it being understood by the Company that the Investor
is relying on the representations, warranties, covenants and other provisions
in this Agreement and the other documents and agreements contemplated hereunder
and nothing in this Section 2.2(f) shall limit the Investor’s
rights with respect to breaches of representations, warranties, covenants and
other provisions in this Agreement and the other documents and agreements
contemplated hereunder).


 


(g)                                 Unregistered
Securities.  The Investor understands
and hereby acknowledges that it is aware that the Issued Securities have not
been registered under the Securities Act or any similar state securities laws
and that the Issued Securities will be issued by the Company in reliance upon
exemptions from the registration requirements of such laws.  The Investor further understands and
acknowledges that all representations, warranties and agreements made herein
form, in part, the basis for the foregoing exemptions under the Securities Act
and the applicable state securities laws, and that in issuing the Issued
Securities to the Investor, the Company has relied on all representations,
warranties and agreements of the Investor contained herein.


 


(h)                                 Certain
Tax Matters.  The Investor does
hereby acknowledge that it (i) has reviewed with its own tax advisors the
federal, state, local and foreign tax consequences to it of an investment in
the Issued Securities, (ii) is relying solely on such advisors and not on
any statements or representations of the Company or any of their agents in
connection therewith and (iii) understands that it shall be responsible
for its own tax liability that may arise as a result of this investment in the
Issued Securities.


 


7

















 


Section III


 


ADDITIONAL AGREEMENTS


3.1           Governance Matters.


 


(a)                                  In
connection with the increase in size of the Company’s board of directors
contemplated by the Amended and Restated Bylaws, the Investor shall have the
right to nominate one person (who is not an officer or an Affiliate of any
Investor Party) (the “Independent Director”) for election to the board
of directors of the Company at the next annual meeting of the Company’s
stockholders at which directors are elected (the “Annual Meeting”); provided,
that in the case that a qualified Independent Director has not been identified
in time for inclusion in a proxy statement relating to the Annual Meeting, the
Investor shall use commercially reasonable efforts to promptly identify a
qualified candidate to serve as the Independent Director following the Annual
Meeting, at which point the Company will promptly (and in no event more than
five (5) business days after the nomination of the Independent Director by
the Investor) cause the Independent Director to be elected or appointed to its
board of directors.  Such Independent
Director shall meet the standards for independence set forth in the New York
Stock Exchange Listed Company Manual Section 303A.00, including with
respect to the Investor and any of its Affiliates.  After such appointment, so long as the
Investor Parties in the aggregate hold at least 10% of the outstanding Common
Stock (including for this purpose, shares of Common Stock issuable upon
exercise of the Warrant any other warrants, options or similar rights held by
the Investor Parties, but excluding, for avoidance of doubt, any other
warrants, options or similar rights held by any other Persons), unless the
Investor gives its written consent otherwise, the Company will be required to
recommend to its stockholders the election of the Independent Director to the
board of directors at future annual meetings. 
Unless the Investor gives written consent otherwise, the Company shall
use commercially reasonable efforts to have the Independent Director elected as
a director of the Company and the Company shall solicit proxies for such person
to the same extent as it does for any of its other nominees to the board of
directors.


 


(b)                                 For
as long as the Preferred Share is outstanding, (i) the holder of the Preferred Share shall have the sole right to
nominate, and shall, as promptly as practicable, nominate, candidates to fill vacancies resulting from the death,
resignation, retirement, disqualification, removal or other cause of any
director elected by the holder of the Preferred Share (all such directors,
together with any person who replaced any of such directors, the “Series A
Directors”) or the Independent Director, (ii) the majority vote of the Series A Directors then in office shall
be required for the board of directors to fill any vacancies on the board
resulting from the death, resignation, retirement, disqualification, removal or
other cause of any of the Series A Directors or the Independent Director,
and (iii) the majority vote of the Common Directors then in office
shall be required for the board of directors to fill any vacancies on the board
resulting from the death, resignation, retirement, disqualification, removal or
other cause of any director who is a Common Director, or to nominate any
candidate to be considered for any such vacancy, and the Common Directors
shall, as promptly as practicable, nominate candidates to fill any such
vacancies.  In addition, for as long as
the Preferred Share is outstanding, the majority vote of the Common Directors
then in office shall be required for the 


 


8

















 


board of directors to nominate any person for election as a Common
Director at an annual or special meeting of stockholders.


 


(c)                                  The
Independent Director and the Series A Directors shall be entitled to the
same compensation and same indemnification in connection with his or her role
as a director as the other members of the board of directors, and the
Independent Director and the directors elected by the Investor shall be
entitled to reimbursement for documented, reasonable out-of-pocket expenses
incurred in attending meetings of the board of directors or any committees
thereof, to the same extent as the other members of the Board of
Directors.  The Company shall notify the
Independent Director and the Series A Directors of all regular and special
meetings of any committee of the board directors of which any of them is a
member.  The Company shall provide the
Independent Director and the Series A Directors elected by the Investor
with copies of all notices, minutes, consents and other materials provided to
all other members of the board of directors concurrently as such materials are
provided to the other members.


 


(d)                                 In
lieu of requiring the board of directors to appoint a new director meeting the
standards for independence set forth in the New York Stock Exchange Listed
Company Manual Section 303A.00 at the Closing, it is hereby agreed that
the six directors on the board immediately prior to the Closing shall remain on
the board following the Closing; provided, that until such time as one
of those six directors has been replaced by a new director meeting the
standards of independence set forth in the New York Stock Exchange Listed
Company Manual Section 303A.00 and so long as the Investor Parties hold at
least 10% of the outstanding Common Stock (including for this purpose shares of
Common Stock issuable upon exercise of the Warrant or any other warrants,
options or similar rights), the Investor shall have the right to require the
Common Directors promptly, but in no event later than the date that is three (3) weeks
from the date of such request (such date, the “Resignation Deadline”),
to identify one Common Director who shall deliver his or her resignation to,
and whose resignation shall be accepted by, the Company by the Resignation
Deadline.  If no such resignation has
been delivered to, and accepted by, the Company by the Resignation Deadline,
the letter previously delivered to the Company by one its directors (the “Letter”)
shall become effective, and the director who delivered the Letter (the “Specified
Director”) shall no longer be a director of the Company.  Following such resignation or removal, any
candidate nominated to fill the resulting vacancy shall meet the standards for
independence set forth in the New York Stock Exchange Listed Company Manual Section 303A.00
and the majority vote of the Common Directors then in office shall be required
for the board of directors to nominate such candidate and to fill such
vacancy.  The Common Directors shall
nominate such candidate as promptly as practicable following such resignation
or removal.  The Company shall take all
such action necessary or reasonably requested by the Investor to cause the
resignation required by, or to otherwise effectuate the provisions of, this Section 3.1(d).


 


3.2           Directors and Officers Insurance.


 


(a)                                  For
so long as any Series A Director serves on the Company’s board of
directors and for a period of six years after the date on which the Series A
Directors cease to serve on the Company’s board of directors, the Company shall
not amend, repeal or otherwise modify any provision in the Company’s
certificate of incorporation or bylaws (or equivalent or 


 


9

















 


related governing documents) relating to the exculpation or
indemnification of any officers and/or directors in any manner that would
adversely affect, limit or restrict the rights of such directors and/or
officers thereunder, it being the intent of the parties that the Series A
Directors and the Independent Director shall continue to be entitled to such
exculpation and indemnification to the full extent of the law.  For so long as any Series A Director
serves on the Company’s board of directors, the Company shall continue in
effect, and take all other reasonable action necessary to maintain and provide,
“directors and officers” insurance with coverage levels at least as great as
those in effect immediately prior to the Closing and covering the Series A
Directors and the Independent Director; provided, that Company
may adjust and/or reduce such coverage levels from time to time with the prior
approval of a majority of the Series A Directors.  On the date on which no Series A
Director serves on the Company’s board of directors, the Company shall obtain
and fully pay for a “run off” insurance policy or policies in an aggregate
amount equal to $25,000,000, providing “Side A directors and officers”
insurance coverage, inclusive of a difference-in-conditions (DIC) component,
above and beyond the Company’s “directors and officers” insurance in place on
such date for the Series A Directors and the Independent Director with a
claims period of at least six years from such date; provided, however,
that the Company shall not be required to pay a premium for such “run-off”
insurance policy in excess of $300,000 (the “Premium Cap”) (it being
understood and agreed that in the event such “run-off” insurance policy cannot
be obtained for such amount or less, in the aggregate, (a) the Investor, in
its sole discretion, may require the Company to purchase such policy, in which
case the Investor shall be responsible for the amount by which the premium for
such policy exceeds the Premium Cap or (b) if the Investor does not so
elect, the Company shall remain obligated to provide the greatest insurance
coverage as may be obtained for the Premium Cap); and, provided  further, that the Company’s obligation to obtain such “run
off” insurance policy shall be deemed to be discharged if the Company’s board
of directors is replaced upon the closing of a change in control transaction
involving the Company, and “run off” insurance coverage is obtained in
connection with such transaction for the benefit of the Series A Directors
and the Independent Director, unless the Company’s “directors and officers”
insurance coverage is impaired prior to such change of control and subsequent
purchase of “run off” insurance coverage, in which case the Company shall
obtain and fully pay, up to the amount of the Premium Cap, for a “run off”
insurance policy or policies in an aggregate amount equal to such impairment,
up to $25,000,000, providing “Side A directors and officers” insurance
coverage, inclusive of a difference-in-conditions (DIC) component, above and
beyond the Company’s “directors and officers” insurance in place on such date
for the Series A Directors and the Independent Director with a claims
period of at least six years from such date. 
Such “run off” insurance policies shall not be obtained from the insurer
then providing the Company’s general “directors and officers” insurance and
shall be obtained from an insurer rated A- or higher by Moody’s, Standard &
Poor’s, Fitch or a comparable rating agency. 
Prior to obtaining such insurance policies, the Company shall provide
the Investor with opportunity to comment on the policies the Company intends to
obtain, and the Company shall consider implementing the Investor’s comments in
good faith.


 


(b)                                 Following
the Closing, if any additional individuals serve as Series A Directors or
as the Independent Director, the Company shall enter into indemnification
agreements with such individuals substantially in the form of the
indemnification agreements in place at the time with the Company’s other
directors and officers.


 


10

















 


(c)                                  The
provisions of this Section 3.2 are intended to be for the benefit
of, and shall be enforceable by, any individual who serves as a Series A
Director or as the Independent Director. 
In the event that the Company or any of its respective successors or
assigns (i) consolidates with or merges into any other Person or (ii) transfers
50% or more of its properties or assets to any Person, then and in each case,
proper provision shall be made so the applicable successors and assigns or
transferees assume the obligations set forth in this Section 3.2.


 


3.3                                 Indemnification.  In consideration of the Investor’s
subordination of term loan indebtedness and the execution and delivery of this
Agreement and in addition to all of the Company’s other obligations under this
Agreement, the Company agrees to indemnify and hold harmless the Investor, its
Affiliates and any other holder of the Preferred Share or the Warrant and all
of their respective officers, directors, members, partners, employees and
agents retained in connection with the transactions contemplated by this
Agreement, and each Person who controls the Investor within the meaning of the
Exchange Act and the rules and regulations promulgated thereunder
(collectively, the “Indemnitees”), to the fullest extent lawful, from
and against any and all actions, causes of action, suits, claims, proceedings,
investigations, losses, costs, penalties, fees, liabilities and damages, and
expenses (including reasonable attorneys’ fees and disbursements) in connection
therewith, irrespective of whether any such Indemnitee is a party to the action
for which indemnification hereunder is sought), and amounts paid in settlement
and other costs (the “Indemnified Liabilities”), incurred by the
Indemnitees or any of them as a result of, or arising out of, or relating to (i) any
inaccuracy in or breach of the Company’s representations and warranties in this
Agreement or any other Transaction Document (ii) the Company’s breach of
agreements or covenants made by the Company in this Agreement or any
Transaction Document or (iii) any action, suit, claim, proceeding or
investigation by any Governmental Entity, stockholder of the Company (or any
other Person (other than the Company) relating to this Agreement or the
transactions contemplated by this Agreement or the other Transaction Documents,
except, with respect to the obligations of the Company pursuant to this clause (iii) of
the foregoing only, to the extent such actions, causes of actions, suits, claims,
proceedings, investigations, losses, costs, penalties, fees, liabilities,
damages and expenses are judicially determined in a final non-appealable order
to have resulted directly and primarily from the gross negligence or willful
misconduct of the Indemnitee.  To the
extent that the foregoing undertaking by the Company may be unenforceable for
any reason, the Company shall make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under applicable
law.  Notwithstanding the foregoing: (a) the
maximum indemnification provided to the Investor under clause (i) of this Section 3.3
shall not exceed $50,000,000 and (b) the Company shall not be liable to
any party otherwise entitled to indemnification pursuant hereto for any
settlement effected by such party without the written consent of the Company,
which consent shall not be unreasonably withheld or delayed.


 


3.4                                 Remedies.  Each holder of the Preferred Share and
Warrant Shares shall have all rights and remedies set forth in this Agreement,
the Certificate of Designation, the Warrant or any other Transaction Documents
and all rights and remedies which such holders have been granted at any time
under any other agreement or contract and all of the rights which such holders
have under any law.  Any Person having
any rights under any provision of this Agreement shall be entitled to enforce
such rights specifically (without posting a bond or other security), to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law.


 


11


















 


3.5                                 No
Amendment to Certain Governing Documents. 
So long as the Investor Parties hold at least 10% of the outstanding
Common Stock (including for this purpose, shares of Common Stock issuable upon
exercise of the Warrant or any other warrants, options or similar rights held
by the Investor Parties, but excluding, for avoidance of doubt, any other
warrants, options or similar rights held by any other Persons), the Company
shall not, without the prior written consent of the Investor, amend, alter or
repeal any of the provisions of the Company’s certificate of incorporation
(including the Certificate of Designation) or bylaws or any document amendatory
or supplemental thereto, whether by merger, consolidation or otherwise, in a
manner that would adversely affect or cause to be terminated (whether by the
exchange or conversion of the Preferred Share for either cash or a share or
shares, or other securities or interests, in another corporation, or other
Person, having the same or different rights than the Preferred Share) the
powers, designations, preferences and relative, participating or other rights
of the Preferred Share other than a merger to effect a bona fide transaction
pursuant to which a 25% or greater interest in the Company (assuming exercise
of all outstanding Dilutive Rights, including the Warrant) is obtained by a
Person that is not an Affiliate of the Company. 
For purposes of this Section 3.5 and Section 4(3) of the
Certificate of Designation, any amendment to any provision of the Company’s
certificate of incorporation (including the Certificate of Designation) or
bylaws or any document amendatory or supplemental thereto that reduces the
corporate governance rights of the Series A Directors shall conclusively be
presumed to adversely affect the rights of the Preferred Share, including the
following provisions of the Company’s bylaws: Section 7(a) (nomination of
directors), Section 8 (special stockholder meetings), Section 18 (number of
directors), Section 20 (vacancies resulting from reasons other than
resignation), Section 21 (vacancies resulting from resignation), Section 22
(removal of directors), Section 23(c) (special meetings of the board), Section
24 (quorum), Section 25 (voting requirements of board)), Section 28 (executive
committee), Section 46 (indemnification) and Section 48 (amendments).


 


3.6                                 Right
of Participation.


 


(a)                                  Notice
and Exercise.  So long as the
Investor Parties hold at least 10% of the outstanding Common Stock (including
for this purpose shares of Common Stock issuable upon exercise of the Warrant
or any other warrants, options or similar rights), the Company shall, prior to
any proposed issuance of any Equity Securities of the type described in clauses
(a) through (c) of the definition of Equity Securities, offer to each
Investor Party, as applicable, for a period of ten (10) days from the date
on which such notice is received by such Investor Party, to purchase at the
same price and for the same consideration for which such securities are to be
issued, such Investor Party’s Applicable Percentage of such Equity Securities.


 


(b)                                 Acceptance.


 


(i)                                     Any
written notice to any Investor Party pursuant to this Section 3.6 shall describe the securities issued
or proposed to be issued by the Company and specify the number or amount of securities
being offered to such Investor Party, the price and the payment and other terms
of the issuance (including the date of closing of the issuance).  Such Investor Party may accept the offer
detailed in such notice as to the full number or amount of securities offered
to it or any lesser number or amount, by written notice given to the Company
prior to the expiration of the ten (10) day period, in which event the
Company shall sell and such Investor 


 


12

















 


Party shall buy, upon the terms of the proposed issuance pursuant to Section 3.6(a),
the number or amount of securities agreed to be purchased by such Investor
Party.


 


(ii)                                  The
Company shall be free at any time prior to forty-five (45) days after the date
of its notice of offer to such Investor Party to offer and sell any securities
not agreed by such Investor Party to be purchased by it, for consideration no
less favorable to the Company than those specified in such notice of offer to
such Investor Party.


 


3.7                                 Current
Public Information.  The Company
covenants that it will use commercially reasonable efforts to timely file all
reports and other documents required to be filed by it under the Securities Act
and the Exchange Act and the rules and regulations promulgated by the
Commission thereunder (or, if the Company is not required to file such reports,
it will, upon the request of the Investor Parties, make publicly available such
information as necessary, in the opinion of counsel to the Company, to permit
sales pursuant to Rule 144 or Regulation S under the Securities Act), and it
will use commercially reasonable efforts to take such further action as the
Investor Parties may reasonably request, in each case to the extent required
from time to time to enable any Investor Party to sell the Warrant or Warrant
Shares held by such Investor Party without registration under the Securities
Act, including within the limitation of the exemptions provided by (A) Rule 144
or Regulation S under the Securities Act, as such rules may be amended from
time to time or (B) any successor rule or regulation hereafter adopted by the
Commission.  Upon the written request of
the Investor, the Company will deliver to the Investor a written statement that
it has complied with such requirements.


 


3.8                                 Expenses.  The Company shall pay all fees, costs and
expenses of the Investor Parties (including legal and accounting fees, costs
and expenses) arising in connection with the transactions contemplated hereby
in an amount not to exceed $1,325,000 in the aggregate (it being agreed and
acknowledged that the Investor Parties may incur reimbursable fees, costs and
expenses following the Closing).  For the
avoidance of doubt, it is acknowledged and agreed that the total payments made
by the Company to the Investor Parties pursuant to the preceding sentence and
that certain Letter Agreement, dated as of October 31, 2008 (the “Fee Letter
Agreement”), by and between the Company and Sun Capital Securities Group,
LLC (“Sun Group”), regarding fees and expenses, exclusivity and
termination fee, shall under no circumstances exceed $1,325,000 in the
aggregate.  If at any future date, any
filings or notices under the Hart-Scott-Rodino Antitrust Improvements Act are
required in connection with the Investor Parties’ investment in the Company,
the Company shall take all action reasonably requested by the Investor Parties
in connection therewith and otherwise cooperate with the Investor Parties in
making such filings and/or notices and any fees, costs and expenses of the
Investor Parties in connection therewith shall be borne 50% by the Company and
50% by the Investor Parties.  Damages
suffered by the Investor Parties for a breach of this Agreement shall in no way
be limited by the amounts described in this Section 3.8.


 


3.9                                 Information
Rights.  From the date hereof, until
the date when the Investor Parties hold less than 10% of the outstanding Common
Stock (including for this purpose shares of Common Stock issuable upon exercise
of the Warrant or any other warrants, options or similar rights held by the
Investor):


 


13

















 


(a)                                  The
Company shall permit the Investor Parties, upon reasonable notice and during
normal business hours, to (i) visit and inspect any of the properties of
the Company and its Subsidiaries, (ii) examine the corporate and financial
records of the Company and its Subsidiaries and make copies thereof or extracts
therefrom and (iii) discuss the affairs, finances and accounts of any such
corporations with the directors, officers (including the Chief Financial
Officer), key employees and independent accountants of the Company and its
Subsidiaries.  In addition, the Company
shall with reasonable promptness provide the Investor Parties with such other
information, reports and financial data concerning the Company and its
Subsidiaries as may be reasonably requested by the Investor Parties from time
to time.  For the avoidance of doubt, the
Company agrees and acknowledges that such requests shall include the provision
of regular reports to the Investor Parties, which reports shall include
substantially the same information and financial data typically provided to the
Investor Parties by portfolio companies of the Investor Parties, a form of
which has been provided to the Company. 
The presentation of an executed copy of this Agreement by the Investor
to the Company’s independent accountants shall constitute the Company’s
permission to its independent accountants to participate in discussions with
such Persons.


 


(b)                                 Whether
or not any Investor Party is a lender to the Company at such time, concurrently
with the delivery thereof to the Company’s or any of its Subsidiaries’
lender(s), the Company shall deliver to the Investor Parties a copy of all
financial and other information reports furnished to such lender(s).


 


3.10                           No
Impairment.  The Company shall not by
any action, including through any amendment to its certificate of
incorporation, through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of
this Agreement or any other Transaction Document or any other agreement between
the Company and any Investor Party in place from time to time, but will at all
times in good faith assist in carrying out all such actions as may be
reasonably necessary or appropriate to protect the rights of the Investor  Parties against impairment.


 


3.11                           FIRPTA.  The Investor hereby represents and the
Company acknowledges that certain Investor Parties may be foreign entities or
have foreign persons and entities as partners. The Company acknowledges that,
upon the request of a foreign person holding an interest in the Company, the
Company may be required to file or cause to be filed in the future with the
Internal Revenue Service (“IRS”) certain notices and statements required
under Section 1.897 2(h) of the Treasury Regulations.  Upon the request of the Investor, the Company
shall use commercially reasonable efforts to determine whether it is a  “United States real property holding
corporation” within the meaning of Section 897(c)(2) of the IRC.  If the Company determines that it is a
“United States real property holding corporation” within the meaning of Section
897(c)(2) of the IRC, the Company shall (i) promptly notify the Investor in
writing of such determination and (ii) upon written request from the Investor,
use commercially reasonable efforts to provide information and certificates to
the Investor, including such information and certificates as required by the
Investor to comply with its obligations under U.S. federal income tax law,
reasonably related to (x) a determination as to whether the Common Stock is of
a class that is regularly traded (as defined by Sections 1.897 1(n) and 1.897
9T of the Treasury Regulations) on 


 


14

















 


an established securities
market (as defined by Section 1.897 1(m) of the Treasury Regulations)
and (y) the Company’s status as a “United States real property holding
corporation.”


 


3.12                           Further
Assurances.  In the event that at any
time after the Closing any further action is necessary or desirable to carry
out the purposes of this Agreement, each of the parties hereto will take such
further action (including the execution and delivery of such further
instruments and documents) as any other party hereto reasonably may
request.  Notwithstanding the foregoing,
if at any time (1) the Certificate of Designation or any portion thereof is
found to be invalid or ineffective, (2) the Company takes the position that the
Certificate of Designation or any portion thereof is invalid or ineffective and
refuses to permit the holder of the Preferred Share to exercise any right provided
for therein or (3) for any other reason the holder of the Preferred Share
otherwise does not receive all of the rights and benefits contemplated by the
Certificate of Designation, then the Company shall take all such other action
as may be requested by the Investor Parties that is required to cause the
Investor Parties, to receive, to the maximum extent permitted by law, the
rights and benefits the Investor Parties anticipated the holder of the
Preferred Share would receive under the Certificate of Designation (it being
agreed and acknowledged that such other action may include, to the fullest
extent permitted by applicable law, adopting a new certificate of designation
and issuing a new security so as to provide the holder of the Preferred Share
with all of the rights and benefits, to the fullest extent permitted by
applicable law, as the Investor anticipated could be received by the holder of
the Preferred Share under the Certificate of Designation, and, if adopting a
new certificate of designation and issuing a new security is not possible for
any reason or if the Company is able to adopt a new certificate of designation
and issue a new security, but such security does not provide the holder of the
Preferred Share with all of the rights and benefits that the Investor
anticipated could be received by the holder of the Preferred Share under the
Certificate of Designation, then so long as the Investor Parties in the
aggregate hold at least 10% of the outstanding Common Stock (including for this
purpose, shares of Common Stock issuable upon exercise of the Warrant or issued
pursuant to this Agreement or any other warrants, options or similar rights
held by the Investor Parties, but excluding, for avoidance of doubt, any other
warrants, options or similar rights held by any other Persons), to the extent
the Investor is prevented from electing any Series A Directors, appointing and
soliciting proxies for, as applicable, for up to five (5) persons nominated by
the Investor to serve on the Company’s board of directors to the same extent as
it does for any of its other nominees to the board of directors).


 


Section IV


 


CERTAIN DEFINITIONS


 


4.1                                 Definitions.  The following terms have the meanings set
forth below:


 


“Affiliates” of any particular Person means any other
Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with such
Person.  For purposes of this definition,
“control” (including the terms “controlling,” “controlled by”
and “under common control with”) means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.


 


15

















 


“Applicable Percentage” as applied to any
Investor Party on any date shall mean, a fraction (expressed as a percentage),
the numerator of which is the aggregate number of shares of Common Stock owned
(which for this purpose include shares of Common Stock issuable upon exercise
of the Warrant and any other Dilutive Rights) by such Investor Party on such
date and the denominator of which is the sum of the total number of shares of
Common Stock outstanding on such date plus the total number of shares of Common
Stock issuable upon exercise of any Dilutive Rights, including the Warrant and
other Dilutive Rights held by the Investor and/or its Affiliates.


 


“Common Stock” means the Company’s Common
Stock, par value $.01 per share, and any capital stock of any class of the
Company hereafter authorized which is not limited to a fixed sum or percentage
of par or stated value in respect to the rights of the holders thereof to
participate in dividends or in the distribution of assets upon any liquidation,
dissolution or winding up of the Company; provided, that with respect to
the shares of Common Stock issuable upon the exercise of the Warrant, “Common
Stock” means the Company’s Common Stock, par value $.01 per share.


 


“Dilutive Rights” means options, warrants or other rights to
subscribe for or purchase Common Stock of the Company, to the extent the
exercise price for the foregoing on the applicable date is equal to or less
than the market price of the Company’s Common Stock.


 


“Equity Securities”
shall mean (a) any capital stock of the Company (including Common
Stock), (b) any warrants, options, or other rights to subscribe for or to
acquire, directly or indirectly, capital stock of the Company, whether or not
then exercisable or convertible, (c) any stock, notes, or other securities
or indebtedness which are convertible into or exchangeable for, directly or
indirectly, capital stock of the Company, whether or not then convertible or
exchangeable, (d) any capital stock of the Company issued or issuable upon
the exercise, conversion, or exchange of any of the securities referred to in clauses
(a) through (c) above, and (e) any securities issued
or issuable directly or indirectly with respect to the securities referred to
in clauses (a) through (d) above by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, reclassification, merger, consolidation, or other
reorganization.


 


“Person” means an individual, a partnership, a
joint venture, a corporation, a limited liability company, a trust, an
unincorporated organization and a government or any department or agency
thereof.


 


“Subsidiary” means, with respect to any Person,
any corporation, limited liability company, partnership, association or other
business entity of which (i) if a corporation, a majority of the total
voting power of shares of stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof, or (ii) if a limited liability company, partnership, association
or other business entity, a majority of the partnership or other similar
ownership interest thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more Subsidiaries of that Person or a
combination thereof.  For purposes
hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a limited liability 


 


16

















 


company, partnership,
association or other business entity if such Person or Persons shall be
allocated a majority of limited liability company, partnership, association or
other business entity gains or losses or shall be or control any managing
director or general partner of such limited liability company, partnership,
association or other business entity.


 


“Transaction Documents” means this Agreement
(including the Annexes hereto), the Amended Credit Agreement, the Registration
Rights Agreement, the Consulting Agreement, and the Indemnification
Subordination Agreements.


 


Section V


 


MISCELLANEOUS


 


5.1                                 Survival
of Representations and Warranties. 
The representations and warranties contained herein or made in writing
by any party in connection herewith shall survive the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby,
regardless of any investigation made by the Investor on its behalf, as follows:


 


(a)                                  the
representations and warranties in Section 2.1(a) (Organization,
Authorization and Significant Subsidiaries), Section 2.1(b) (Capitalization),
Section 2.1(c) (Preferred Share), Section 2.1(d) (The
Warrant and Warrant Shares), Section 2.1(e) (Authorization; No
Breach), Section 2.1(f) (Amended Credit Agreement), Section 2.1(k) (Brokerage),
Section 2.2(a) (Status), Section 2.2(b) (Authorization;
No Breach), Section 2.2(c), (Accredited Investor), Section 2.2(d) (Investment
Intent), Section 2.2(e) (Investor Capacity), Section 2.2(f) (Due
Diligence), Section 2.2(g) (Unregistered Securities) and Section 2.2(h) (Certain
Tax Matters) shall survive indefinitely; and


 


(b)                                 the
representations and warranties in Section 2.1(g) (Company
Financial Statements), Section 2.1(h) (No Material Adverse
Effect), Section 2.1(i) (Reports) and Section 2.1(j) (Amended
Credit Agreement Representations and Warranties) shall survive for two (2) years
from the Closing Date;


 


provided,
that any representation or warranty in respect of which indemnity may be sought
under Section 3.3 above, and the indemnity with respect thereto, shall
survive the time at which it would otherwise terminate pursuant to this Section
5.1 if notice of the inaccuracy or breach or potential inaccuracy or breach
thereof giving rise to such right or potential right of indemnity shall have
been given to the party against whom such indemnity may be sought prior to such
time.


 


5.2           Amendment.  No amendment of any provision of this
Agreement will be effective unless made in writing and signed by a duly
authorized officer of each party.


 


5.3           Waiver.  The conditions to each party’s obligation to
consummate the Closing are for the sole benefit of such party and may be waived
by such party in whole or in part to the extent permitted by applicable
law.  No waiver will be effective unless
it is in a writing signed by a duly authorized officer of the waiving party
that makes express reference to the provision or provisions subject to such
waiver.


 


 


17

















 


5.4                                 Counterparts
and Facsimile.  For the convenience
of the parties hereto, this Agreement may be executed in any number of separate
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts will together constitute the same agreement.  Executed signature pages to this Agreement
may be delivered by electronic facsimile (including via electronic mail) and
such facsimiles will be deemed as sufficient as if actual signature pages had
been delivered.


 


5.5                                 Governing
Law.  This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Delaware, without giving effect to principles of conflicts of law or
choice of law that would compel the application of the substantive laws of any
other jurisdiction.


 


5.6                                 WAIVER
OF TRIAL BY JURY.  EACH PARTY HERETO
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY LITIGATION, ACTION,
PROCEEDING, CROSS-CLAIM, OR COUNTERCLAIM IN ANY COURT (WHETHER BASED ON
CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF, RELATING TO OR IN CONNECTION WITH
(I) THIS AGREEMENT OR THE VALIDITY, PERFORMANCE, INTERPRETATION, COLLECTION OR
ENFORCEMENT HEREOF OR (II) THE ACTIONS OF THE PARTIES IN THE NEGOTIATION,
AUTHORIZATION, EXECUTION, DELIVERY, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
HEREOF.


 


5.7                                 Notices.  All notices, demands and other communications
to be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given (i) when personally
delivered, sent by telecopy (with hard copy to follow); (ii) one day after sent
by reputable overnight express courier (charges prepaid); or (iii) five (5)
days following mailing by certified or registered mail, postage prepaid and
return receipt requested.  Unless another
address is specified in writing, notices, demands and communications to the
Company and the Investor shall be sent to the addresses indicated below.


 


(A)                              If
to the Investor:


 


Sun Accuride Debt Investments, LLC


5200 Town Center Circle, Suite 600


Boca Raton, Florida 33486


Attention: Jason H. Neimark, Brian Urbanek and C.
Deryl Couch


Facsimile: (561) 394-0540


Email: jneimark@suncappart.com,
burbanek@suncappart.com and 


dcouch@suncappart.com


 


and


 


18

















 


Sun Accuride Debt Investments, LLC

11111 Santa Monica Blvd., Suite 1050

Los Angeles, California 90025

Attention: Michael J. Satzberg

Facsimile: (310) 473-1119 

Email: msatzberg@suncappart.com


 


with a copy to:


 


Kirkland & Ellis LLP

200 E. Randolph Drive

Chicago, Illinois 60601

Attention: Douglas C. Gessner, P.C., Gerald T. Nowak and Jeremy S. Liss

Facsimile: (312) 861-2200 

Email: dgessner@kirkland.com, gnowak@kirkland.com and jliss@kirkland.com


 


(B)                                If
to the Company:


 


Accuride Corporation

7140 Officer Circle

Evansville, Indiana 47715

Attention: David K. Armstrong

Facsimile: (812) 962-5426

Email: dkarmstr@accuridecorp.com


 


with a copy to:


 


Latham & Watkins LLP


Sears Tower, Suite 5800


233 South Wacker Drive


Chicago, Illinois 60606


Attention: Christopher D. Lueking 


Facsimile: (312) 993-9767


Email: christopher.lueking@lw.com


 


5.8           Entire Agreement.  This Agreement (including the Annexes hereto)
and the other Transaction Documents set forth the entire agreement of the
parties hereto with regard to the subject matter hereof and supersedes and
replaces all prior agreements, understandings and representations, oral or
written, with regard to such matters; provided, that notwithstanding the
foregoing, nothing in this Agreement shall affect any rights any party may have
under the Fee Letter Agreement, except as set forth in Section 3.8, or
that certain Letter Agreement dated as of October 31, 2008 by and between the
Company and Sun Group regarding assignment of indebtedness of the Company.


 


5.9                                 Assignment;
Successors and Assigns.  Neither this
Agreement nor any right, remedy, obligation or liability arising hereunder or
by reason hereof shall be assignable by any party hereto without the prior
written consent of the other parties, and any attempt to assign any 


 


19

















 


right, remedy, obligation or liability hereunder
without such consent shall be void, except (i) an assignment, in the case
of a merger or consolidation where such party is not the surviving entity, or a
sale of substantially all of its assets, to the entity which is the survivor of
such merger or consolidation or the purchaser in such sale or (ii) an
assignment by the Investor of any or all of its rights hereunder (including
under any other Transaction Document) to any of its Affiliates (such Affiliate,
an “Affiliate Assignee”).  The
actions of the Investor and/or any Affiliate Assignees shall be aggregated for
purposes of all thresholds and limitations herein and in the Registration
Rights Agreement to the extent (i) the Investor transfers any or all of
its rights hereunder to any Affiliate Assignee prior to the Closing and/or (ii) the
Investor or any Affiliate Assignee transfers any Issued Securities to any
Affiliate Assignee following the Closing. 
All covenants, promises and agreements by or on behalf of the parties
contained in this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns.


 


5.10                           Severability.  If any provision of this Agreement or a
Transaction Document, or the application thereof to any person or circumstance,
is determined by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions hereof, or the application of such
provision to persons or circumstances other than those as to which it has been
held invalid or unenforceable, will remain in full force and effect and shall
in no way be affected, impaired or invalidated thereby, so long as the economic
or legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. 
Upon such determination, the parties shall negotiate in good faith in an
effort to agree upon a suitable and equitable substitute provision to effect
the original intent of the parties.


 


5.11                           No
Third-Party Beneficiaries.  Except as
expressly set forth in Section 3.2(c) and Section 3.3, nothing
contained in this Agreement, expressed or implied, is intended to confer upon
any person or entity other than the Company and the Investor, any benefits,
rights, or remedies.


 


5.12                           Interpretation.  The headings contained in this Agreement are
for reference purposes only and are not part of this Agreement.  Whenever the words “include,” “includes” or
“including” are used in this Agreement, they shall be deemed followed by the
words “without limitation.”  No rule of
construction against the draftsperson shall be applied in connection with the
interpretation or enforcement of this Agreement, as this Agreement is the
product of negotiation between sophisticated parties advised by counsel.  Except as expressly stated in this Agreement,
all references to any statute, rule or regulation are to the statute, rule or
regulation as amended, modified, supplemented or replaced from time to time
(and, in the case of statutes, include any rules and regulations promulgated
under the statute) and to any section of any statute, rule or regulation
include any successor to the section.


 


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20

















 


IN WITNESS WHEREOF, the parties hereto have executed
this Last Out Debt Agreement as of the date first written above.


 


 


	
   

  	
  SUN ACCURIDE DEBT INVESTMENTS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
        /s/
  Michael J. McConvery

  
	
   

  	
  Name:

  	
  Michael J. McConvery

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ACCURIDE CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
        /s/
  William M. Lasky

  
	
   

  	
  Name:

  	
  William M. Lasky

  
	
   

  	
  Title:

  	
  President and Chief Executive Officer 

  



 


Signature Page to Last Out Debt
Agreement


 

















 


ANNEX A


 


Amended and Restated Bylaws


 


 


[See Exhibit 3.1]


 






 












 


ANNEX
B


 


Certificate of Designation


 


 


[See Exhibit 3.2]


 

















 


ANNEX C


 


Warrant


 


 


[See Exhibit 4.1]


 

















 


ANNEX D


 


Registration Rights Agreement


 


 


[See Exhibit 4.2]


 

















 


ANNEX E


 


Consulting Agreement


 


 


[See Exhibit 10.3]


 

















 


ANNEX F


 


Form of Indemnification Agreement


 


 


[See Exhibit 10.4]


 

















 


ANNEX G


 


Indemnification Subordination
Agreements


 


 


[See Exhibits 10.5, 10.6 and 10.7]


 

















 


Schedule 2.1(h)


 


The downturn in the United States and global economies
and the related weakness in the overall commercial vehicle market have had
certain adverse effects on the Company’s financial condition, results of
operations and prospects, including:


 


·                  significant declines in customer
demand, sales, revenue and backlog in comparison to historical norms;


 


·                  significant increases in the Company’s cost
of operations, including, without limitation, the cost of energy and raw
materials;


 


·                  less favorable payment and other
terms in agreements with trade creditors;


 


·                  employee-related costs, asset
impairment and other charges related to the Company’s restructuring initiatives
announced in September and December of 2008;


 


·                  a significant reduction in the trading price
of the Company’s Common Stock;


 


·                  a significant reduction in the Company’s
global market capitalization resulting in the delisting of the Company’s Common
Stock from the New York Stock Exchange;


 


·                  an impairment in goodwill and intangibles in
the third quarter of 2008 as disclosed in the Company’s financial statements;


 


·                  reductions in the credit rating of the
Accuride Corporate Family by Moody’s Investor’s Services and Standard &
Poor’s; and


 


·                  the anticipated  lack of compliance with certain financial covenants,
including leverage, interest coverage and fixed charge coverage ratios, under
the Company’s Fourth Amended and Restated Credit Agreement, dated as of January 31,
2005, as amended, among the Company, Accuride Canada Inc., Citicorp USA, Inc.
as administrative agent and the other lenders party thereto, as of December 31,
2008.


 


In addition, the following
factors have also had certain adverse effects on the Company’s financial
condition, results of operations and prospects:


 


·                  the resignation of John R. Murphy as
President and Chief Executive Officer of the Company and the resignation of
Terrence Keating as the Chairman of the board of directors of the Company; and


 


·                  a
lock-out of members of the United Auto Workers at the Company’s Rockford,
Illinois facility beginning in November, 2007 and ending in
March, 2008, resulting in $7,7000,000 of one-time charges in 2008.


 

















 


Schedule 2.1(k)


 


Brokerage


 


Fees to be paid to UBS  Securities LLC, as set forth in: (i) the
Letter Agreement, by and among Accuride Corporation and UBS Securities LLC,
dated as November 17, 2008 and (ii) the Letter Agreement, by and
among Accuride Corporation and UBS Securities LLC, dated as of March 19,
2008.