Exhibit 10.5


 


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 Partners Management V, LLC, a Delaware limited
liability company (“SCPM”), Sun Capital Partners V, L.P., a Cayman
Islands exempted limited partnership, Sun Capital Advisors V, L.P., a Cayman
Islands exempted limited partnership, and Sun Capital Partners V, 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 SCPM, 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 SCPM 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


 


3

















 


Party has 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 SCPM, 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 OF THE PARTIES IN THE
NEGOTIATION, AUTHORIZATION,


 


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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 Partners
Management V, 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
Partners Management V, 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


 


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(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.


 


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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 PARTNERS

  MANAGEMENT V, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Michael
  J. McConvery

  
	
   

  	
  Name: Michael J. McConvery

  
	
   

  	
  Title: Vice President & Assistant

  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SUN
  CAPITAL PARTNERS V, L.P.

  
	
   

  	
   

  
	
   

  	
  By: Sun Capital Advisors V, L.P.

  
	
   

  	
  Its: General Partner

  
	
   

  	
   

  
	
   

  	
  By: Sun Capital Partners V, Ltd.

  
	
   

  	
  Its: General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Michael
  J. McConvery

  
	
   

  	
  Name: Michael J. McConvery

  
	
   

  	
  Title: Vice President & Assistant

  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SUN CAPITAL ADVISORS V, L.P.

  
	
   

  	
   

  
	
   

  	
  By: Sun Capital Partners V, Ltd.

  
	
   

  	
  Its: General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Michael
  J. McConvery

  
	
   

  	
  Name: Michael J. McConvery

  
	
   

  	
  Title: Vice President & Assistant

  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SUN CAPITAL PARTNERS V,

  LTD.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Michael
  J. McConvery

  
	
   

  	
  Name: Michael J. McConvery

  
	
   

  	
  Title: Vice President & Assistant

  Secretary

  



 


Signature
Page to Indemnification Subordination Agreement