Exhibit 10.6


 


EXECUTION
VERSION


 


INDEMNIFICATION
SUBORDINATION AGREEMENT


 


This INDEMNIFICATION SUBORDINATION AGREEMENT (this “Agreement”),
dated as of February 4, 2009, is entered into by and between Accuride
Corporation, a Delaware corporation (together with any current or future
successors or direct or indirect parents or subsidiaries, the “Company”),
on the one hand, and Sun Capital Securities Fund, LP, a Delaware limited
partnership, Sun Capital Securities Advisors, LP, a Delaware limited
partnership, Sun Capital Securities, LLC, a Delaware limited liability company,
Sun Capital Securities Management, LLC, a Delaware limited liability company (“SCSM”),
and Sun Capital Securities Offshore Fund, Ltd., a Cayman Islands exempted
company (collectively, “Sun”), on the other hand.  Capitalized terms used but not otherwise
defined herein shall have the meanings set forth in Section 3.


 


W  I  T  N  E  S  S  E  T  H:


 


WHEREAS, the Company is a party to that certain Last
Out Debt Agreement, dated as of the date hereof, by and between the Company and
a Sun Affiliate (the “Last Out Debt Agreement”), and that certain
Consulting Agreement, dated as of the date hereof, by and between the Company
and a Sun Affiliate (the “Consulting Agreement”);


 


WHEREAS, the Company has certain indemnification
obligations to certain Sun Affiliates and their respective officers, directors,
members, partners, employees  and
agents under certain Organizational Documents, the Last Out Debt Agreement and
the Consulting Agreement, and such parties also have certain rights to
indemnification provided by Sun and/or Sun Affiliates;


 


WHEREAS, this Agreement is intended to clarify certain
rights of (a) Sun, (b) any Sun Affiliate, (c) any persons or
entities providing management, advisory, consulting or other services at the
direction or request of Sun or any Sun Affiliate to or for the benefit of the
Company, (c) any persons designated by Sun or any Sun Affiliate to serve
as a director, officer, board observer, partner, trustee, fiduciary, manager,
employee, consultant or advisor, or functional or foreign equivalent of the
foregoing, to the Company, and (d) any direct or indirect partners
(including general partners), shareholders, members (including managing
members), controlling persons, subsidiaries, directors, officers, fiduciaries,
managers, employees and agents of each of the foregoing (those persons and
entities identified in (a), (b), (c) and (d) above, the “Indemnified
Parties”), whether such rights exist pursuant to any Organizational
Document, Advisory Agreement, Transaction Agreement or any other agreement or
document;


 


WHEREAS, it is the intent of the parties that (a) the
Company is and shall be the indemnitor of the first resort with respect to any
matters for which advancement or indemnification is provided by the Company to
or on behalf of the Indemnified Parties, whether for claims and liabilities
prior to or after the date of this Agreement, (b) the Company shall
provide advancement or indemnification to each Indemnified Party on a primary
basis and (c) any Indemnified Party may be expected to seek advancement
and/or indemnification from any other potential source of advancement or
indemnification (including, without limitation, from any other Indemnified
Party) only if, and to the extent, that the Company is legally and/or
financially unable to make advancement and/or indemnification, as the case may
be, to or on behalf of such Indemnified Party; and


 


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WHEREAS, the Company’s acknowledgement and agreement
to the foregoing is a material condition to the willingness of certain Sun
Affiliates to serve as officers and/or directors of the Company, to enter into
the Last Out Debt Agreement and Consulting Agreement and to consummate the
transactions contemplated thereby.


 


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


 


1.     Primary Indemnitor; Subrogation.  The Company hereby acknowledges that the
Indemnified Parties have certain rights to advancement and/or indemnification
by Sun and certain Sun Affiliates (collectively, the “Fund Indemnitors”).  The Company hereby agrees that the Company is
the indemnitor of first resort (i.e., its obligations to the Indemnified
Parties are primary and those of the Fund Indemnitors are secondary), that the
Company shall be liable for the full amount of payments of indemnification
required by any Organizational Document, Advisory Agreement or Transaction
Agreement and that the Company irrevocably and unconditionally waives any
claims against the Fund Indemnitors for contribution, subrogation, exoneration,
reimbursement or any other recovery of any kind for which the Company is liable
pursuant to any Organizational Document, Advisory Agreement, Transaction
Agreement or this Agreement.  The Company
further agrees that no payment for indemnification by the Fund Indemnitors on
behalf of any Indemnified Party with respect to any claim for which an
Indemnified Party has sought payment from the Company shall affect the
foregoing, and the Fund Indemnitors, to the extent of such payment, shall be
subrogated to all of the rights of recovery of such Indemnified Party against
the Company.


 


2.     Modification of Indemnification
Rights.  An Indemnified Party’s
rights under this Agreement and an Indemnified Party’s rights to advancement or
indemnification from the Company pursuant to any agreement or document
(including, without limitation, any Organizational Document, Advisory Agreement
or Transaction Agreement) governing an Indemnified Party’s rights to
advancement and/or indemnification from the Company may not be waived,
eliminated or otherwise diminished or modified without the specific written
consent of SCSM, on behalf of Sun.  Sun
may, within Sun’s sole discretion, compromise, waive or relinquish any
Indemnified Party’s rights to advancement or indemnification under any
agreement or document (whether pursuant to any Organizational Document,
Advisory Agreement, Transaction Agreement or otherwise) governing such
Indemnified Party’s rights to advancement and/or indemnification from the
Company.


 


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


 


“Advisory Agreement” shall mean any advisory
agreement, consulting, monitoring or other similar or equivalent agreement,
including the Consulting Agreement.


 


“Organizational Document” shall mean an entity’s
charter, bylaws, partnership agreement, limited liability company agreement,
operating agreement, indemnification agreement or other similar agreement or
document, including any document amendatory or supplemental thereto.


 


“Person” shall mean any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated association, corporation,
limited liability company or entity.


 


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“Sun Affiliate” shall mean any other Person
controlling, controlled by or under common control with Sun; provided,
that under no circumstances shall the Company or any “portfolio company”
acquired, either directly or indirectly through one or more subsidiaries, by
Sun be deemed a Sun Affiliate hereunder. 
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. 
For the avoidance of doubt, any investment fund formed or managed by Sun
or any Sun Affiliate or for which Sun or any Sun Affiliate serves as an
investment adviser, and each of their respective employees, officers,
directors,  direct or indirect
general partner, managing member and/or controlling persons are “Sun Affiliates”
for all purposes hereof.


 


“Transaction Agreement” shall mean any
investment agreement, securities purchase agreement, note purchase agreement,
asset purchase agreement, merger agreement or other similar or equivalent
agreement, including the Last Out Debt Agreement.


 


4.     No Obligation to Provide Services.  Nothing in this Agreement shall be construed
to require SCSM to provide, or to continue to provide, management, advisory
consulting or other services, and nothing in this agreement shall be construed
to require any Indemnified Party to serve, or continue to serve, as a director,
officer, board observer, fiduciary, partner or manager (or in any other
capacity) of the Company.  Subject to the
second sentence of Section 2, no Indemnified Party’s rights
hereunder shall be limited or impaired in any way in the event that such
Indemnified Party ceases, for any reason, to serve or provide services to the
Company.


 


5.     Third-Party Beneficiaries.  Each Fund Indemnitor and, subject to the
second sentence of Section 2, each Indemnified Party shall, to the
extent not a party hereunder, be considered an express third-party beneficiary
hereunder and shall enjoy all rights that a party hereunder enjoys and shall
enjoy such rights to the same extent as a party hereunder.


 


6.     Joint and Several Liability.  Each subsidiary of the Company party hereto
hereby agrees, and any successor to each such subsidiary that is a subsidiary
of the Company (whether by merger, consolidation or transfer of all or substantially
all of such subsidiary’s assets) shall agree, that it shall be jointly and
severally liable to the Fund Indemnitors for any amounts owed by the Company to
any Fund Indemnitor pursuant to this Agreement.


 


7.     Additional Subsidiaries. 
The Company shall cause each subsidiary of the Company not a party
hereto to execute a joinder to this Agreement within two (2) weeks of the
date hereof; provided, that any subsidiary formed in a jurisdiction
outside the United States shall not be bound by the provisions of Section 6
hereof.  The Company shall not form or
acquire any subsidiaries in the future unless each such subsidiary executes a
joinder to this Agreement, including, with respect to domestic subsidiaries, Section 6
hereof, it being agreed and understood that whether or not such subsidiary
actually executes such a joinder, such subsidiary shall, to the fullest extent
permitted by law, be bound by this Agreement, including, with respect to
domestic subsidiaries, Section 6 hereof.


 


8.     No Further Changes. 
Except as, and only to the extent, specifically provided herein, any and
all rights to advancement and/or indemnification to which each Indemnified
Party has 


 


3

















 


ever been, is or may in the future be entitled from the Company shall
remain unchanged by this Agreement.


 


9.     Conflicting Provisions. 
To the extent that any provision of this Agreement conflicts with any
provision of any other agreement to which the Company or an Indemnified Party
is a party (whether pursuant to an Organizational Document, Advisory Agreement,
Transaction Document or any other agreement or document) with respect to the
subject matter of this Agreement, the provisions of this Agreement shall
control.


 


10.   Amendment.  No amendment of any provision of this
Agreement will be effective unless made in writing and signed by the Company
and SCSM, on behalf of Sun.


 


11.   Waiver.  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.


 


12.   Remedies.  No right or remedy conferred herein is
intended to be exclusive of any other right or remedy, and every other right or
remedy shall be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise,
so long as such right or remedy does not conflict with any right or remedy
provided herein.


 


13.   Change in Law.  To the extent that a change in the laws of
the State of Delaware (or other applicable law), whether by statute or judicial
decision, permits greater indemnification rights or remedies than would
currently be afforded under (a) the Company’s Organizational Documents, (b) this
Agreement or (c) any other document providing advancement and/or
indemnification to an Indemnified Party, it is the intent of the parties that
the Indemnified Parties shall enjoy, by and as a result of this Agreement, the
greater benefits so afforded by such change.


 


14.   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.


 


15.   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.


 


16.   WAIVER OF JURY TRIAL.  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 


 


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OF THE PARTIES IN
THE NEGOTIATION, AUTHORIZATION, EXECUTION, DELIVERY, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT HEREOF.


 


17.   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 Sun shall be sent to the addresses indicated below.


 


(a)   If to Sun:


 


Sun Capital Securities
Management, 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


 


Sun Capital
Securities Management, 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


 


5

















 


(b)   If to the Company:


 


Accuride Corporation

7140 Officer Circle

Evansville, Indiana 47715

Attention: David K. Armstrong

Facsimile: (812) 962-5246

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


 


18.   Entire Agreement.  This Agreement sets 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.


 


19.   Assignment; Successors and Assigns.  This Agreement and the rights, duties and
obligations of the Company hereunder may not be assigned or delegated by the
Company without the prior written consent of Sun.  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. 
The Company acknowledges and agrees this Agreement is intended to bind
all future direct and indirect parents and subsidiaries of the Company.


 


20.   Severability.  If any provision of this Agreement, 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.


 


21.   Further Assurances. Each party hereto
agrees to use all reasonable efforts to obtain all consents and approvals, and
to do all other things, necessary for the transactions contemplated by this
Agreement.  The parties agree to take
such further action and to deliver or cause to be delivered any additional
agreements or instruments as any of them may reasonably request for the purpose
of carrying out this Agreement and the agreements and transactions contemplated
hereby.


 


6

















 


22.   Attorneys’ Fees.  In the event that any action is instituted by
Sun under this Agreement to enforce or interpret any of the terms hereof, Sun
shall be entitled to be paid all court costs and expenses, including the
reasonable and documented fees of one counsel, incurred by Sun with respect to
such action, unless as a part of such action, the court of competent
jurisdiction determines that each of the material assertions made by Sun as a
basis for such action were not made in good faith or were frivolous.  In the event of an action instituted by the
Company under this Agreement or to enforce or interpret any of the terms of
this Agreement, Sun shall be entitled to be paid all court costs and expenses,
including the reasonable and documented fees of one counsel, incurred by Sun in
defense of such action (including with respect to Sun’s counterclaims and cross-claims
made in such action), unless as apart of such action the court determines that
each of Sun’s material defenses to such action were made in bad faith or were
frivolous.


 


23.   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.


 


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IN WITNESS WHEREOF, the parties have executed this
Indemnification Subordination Agreement as of the date first written above.


 


 


	
   

  	
   

  	
  ACCURIDE
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ David K Armstrong

  
	
   

  	
   

  	
  Name: David K.
  Armstrong 

  
	
   

  	
   

  	
  Title: Senior Vice
  President/Chief Financial

  Officer

  



 


 


	
   

  	
   

  	
  AKW
  GENERAL PARTNER, L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: Accuride
  Corporation, as Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ David K Armstrong

  
	
   

  	
   

  	
  Name: David K.
  Armstrong 

  
	
   

  	
   

  	
  Title: Senior Vice
  President/Chief Financial

  Officer

  



 


 


	
   

  	
   

  	
  AOT,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ David K Armstrong

  
	
   

  	
   

  	
  Name: David K.
  Armstrong 

  
	
   

  	
   

  	
  Title: Vice President

  



 


 


	
   

  	
   

  	
  TRANSPORTATION
  TECHNOLOGIES,

  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ David K Armstrong

  
	
   

  	
   

  	
  Name: David K.
  Armstrong 

  
	
   

  	
   

  	
  Title: Vice President

  



 


 


	
   

  	
   

  	
  ACCURIDE
  CUYAHOGA FALLS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ David K Armstrong

  
	
   

  	
   

  	
  Name: David K.
  Armstrong 

  
	
   

  	
   

  	
  Title: Vice President

  



 


Signature
Page to Indemnification Subordination Agreement


 

















 


	
   

  	
   

  	
  ACCURIDE
  ERIE, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: AKW General Partner
  LLC, as General

  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: Accuride Corporation,
  as Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
         /s/
  David K Armstrong

  
	
   

  	
   

  	
  Name: David K.
  Armstrong 

  
	
   

  	
   

  	
  Title: Senior Vice
  President/Chief Financial

  Officer

  



 


 


	
   

  	
   

  	
  ACCURIDE
  HENDERSON LIMITED

  LIABILITY
  COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: Accuride
  Corporation, as Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
         /s/
  David K Armstrong

  
	
   

  	
   

  	
  Name: David K.
  Armstrong 

  
	
   

  	
   

  	
  Title: Senior Vice
  President/Chief Financial

  Officer

  



 


 


	
   

  	
   

  	
  ACCURIDE
  EMI, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
         /s/
  William M. Lasky

  
	
   

  	
   

  	
  Name: William M. Lasky

  
	
   

  	
   

  	
  Title: Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
         /s/
  David K Armstrong

  
	
   

  	
   

  	
  Name: David K.
  Armstrong

  
	
   

  	
   

  	
  Title: Manager

  



 


Signature
Page to Indemnification Subordination Agreement


 

















 


	
   

  	
   

  	
  SUN
  CAPITAL SECURITIES FUND, LP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: Sun Capital Securities
  Advisors, LP

  
	
   

  	
   

  	
  Title: General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: Sun Capital Securities,
  LLC

  
	
   

  	
   

  	
  Title: General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
         /s/
  Michael J. McConvery

  
	
   

  	
   

  	
  Name: Michael J. McConvery

  
	
   

  	
   

  	
  Title: Vice President & Assistant
  Secretary

  



 


 


	
   

  	
   

  	
  SUN
  CAPITAL SECURITIES

  ADVISORS, LP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: Sun Capital
  Securities, LLC

  
	
   

  	
   

  	
  Its: General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
         /s/
  Michael J. McConvery

  
	
   

  	
   

  	
  Name: Michael J. McConvery

  
	
   

  	
   

  	
  Title: Vice President & Assistant
  Secretary

  



 


 


	
   

  	
   

  	
  SUN
  CAPITAL SECURITIES, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
         /s/
  Michael J. McConvery

  
	
   

  	
   

  	
  Name: Michael J. McConvery

  
	
   

  	
   

  	
  Title: Vice President & Assistant
  Secretary

  



 


Signature
Page to Indemnification Subordination Agreement


 

















 


	
   

  	
   

  	
  SUN
  CAPITAL SECURITIES

  OFFSHORE FUND, LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: Sun Capital Securities Management,

  LLC

  
	
   

  	
   

  	
  Title: Investment Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
         /s/ Michael
  J. McConvery

  
	
   

  	
   

  	
  Name: Michael J. McConvery

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
         /s/
  Melissa Klafter

  
	
   

  	
   

  	
  Name: Melissa Klafter

  
	
   

  	
   

  	
  Title: Vice President

  



 


 


	
   

  	
   

  	
  SUN
  CAPITAL SECURITIES

  MANAGEMENT, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
         /s/
  Michael J. McConvery

  
	
   

  	
   

  	
  Name: Michael J. McConvery

  
	
   

  	
   

  	
  Title: Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
         /s/
  Melissa Klafter

  
	
   

  	
   

  	
  Name: Melissa Klafter

  
	
   

  	
   

  	
  Title: Vice President

  



 


Signature
Page to Indemnification Subordination Agreement