EXECUTION COPY
COMPLETION GUARANTY AGREEMENT
BY AND AMONG
ACCURIDE CORPORATION,
INDUSTRIA AUTOMOTRIZ, S.A. DE C.V.,
ACCURIDE DE MEXICO, S.A. DE C.V.
and
CITIBANK MEXICO, S.A., GRUPO FINANCIERO CITIBANK,
as Lender
Dated as of July 9, 1998
TABLE OF CONTENTS
SECTION PAGE
PARTIES 1
RECITALS 1
ARTICLE I COMPLETION
SECTION 1.01 COMPLETION 1
SECTION 1.02 COMPLETION CERTIFICATES 2
SECTION 1.03 COMPLETION UNDERTAKING 2
SECTION 1.04 WAIVER OF COMPLETION CONDITIONS 2
SECTION 1.05 COMPLETION OF NON-CONFORMING PLANT 2
ARTICLE II FUNDS TO COMPLETE
SECTION 2.01 FUNDS TO COMPLETE 3
SECTION 2.02 NOTICE OF DEFAULT 4
SECTION 2.03 PRO RATA SHARES 4
SECTION 2.04 OBLIGATIONS ABSOLUTE 4
SECTION 2.05 WAIVERS AND ACKNOWLEDGMENTS 6
SECTION 2.06 SEPARATE UNDERTAKING 6
SECTION 2.07 RELEASE UPON PREPAYMENT OF ADVANCES 6
SECTION 2.08. COMPLETION GUARANTY NOT APPLICABLE TO
OBLIGATIONS UNDER THE NOTES 7
ARTICLE III TERMINATION OF OBLIGATIONS
SECTION 3.01 TERMINATION UPON COMPLETION 7
SECTION 3.02 TERMINATION PRIOR TO COMPLETION 7
SECTION 3.03 EFFECT OF TERMINATION 7
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01 REPRESENTATIONS AND WARRANTIES OF EACH SHAREHOLDER 7
ARTICLE V COVENANTS
SECTION 5.01 COVENANTS OF EACH SHAREHOLDER 10
ARTICLE VI COMPLETION DEFAULTS SECTION 6.01 COMPLETION DEFAULTS 12
SECTION 6.02 COMPLETION DEFAULT REMEDIES 13
ARTICLE VII MISCELLANEOUS
SECTION 7.01 AMENDMENTS 13
SECTION 7.02 NOTICES, ETC. 13
SECTION 7.03 NO WAIVER; REMEDIES 14
SECTION 7.04 BINDING EFFECT 14
SECTION 7.05 EXECUTION IN COUNTERPARTS 14
SECTION 7.06 EXECUTION IN TWO LANGUAGES 14
SECTION 7.07 JURISDICTION, ETC. 14
SECTION 7.08 JUDGMENT 16
SECTION 7.09 GOVERNING LAW 16
SECTION 7.10 THIRD PARTY BENEFICIARIES 16
SECTION 7.11 ENTIRE AGREEMENT 16
SECTION 7.12 WAIVER OF JURY TRIAL 17
SIGNATURES 16
COMPLETION GUARANTY AGREEMENT
This Completion Guaranty Agreement (this "AGREEMENT"),
dated as of July 9, 1998, is made by and among ACCURIDE CORPORATION, a
Delaware corporation ("ACCURIDE"), INDUSTRIA AUTOMOTRIZ, S.A. DE C.V., a
corporation organized and existing under the laws of the United Mexican
States ("IASA", and together with Accuride, each a "SHAREHOLDER" and
collectively the "SHAREHOLDERS"), ACCURIDE DE MEXICO, S.A. DE C.V., a
corporation organized and existing under the laws of the United Mexican
States (the "BORROWER"), and CITIBANK MEXICO, S.A., GRUPO FINANCIERO
CITIBANK, as Lender (the "LENDER") party to the Credit Agreement (as defined
below).
PRELIMINARY STATEMENTS:
(1) The Borrower and the Lender have entered into that
certain Credit Agreement dated as of the date hereof (such Credit Agreement,
as it hereafter may be amended, supplemented or otherwise modified from time
to time, being referred to herein as the "CREDIT AGREEMENT"; capitalized
terms defined in the Credit Agreement and not otherwise defined herein will
be used herein as defined in the Credit Agreement.
(2) It is a condition precedent to the making of Advances
by the Lender under the Credit Agreement that the Shareholders shall have
executed and delivered this Agreement.
NOW, THEREFORE, in consideration of the premises, the
Shareholders, the Borrower and the Lender hereby agree as follows:
ARTICLE I
COMPLETION
SECTION 1.01 COMPLETION. Subject to Section 1.05 hereof,
completion of the Plant (the "COMPLETION") shall occur on the first date (the
"COMPLETION DATE") on which the Lender receives from the Borrower all of the
certificates contemplated by Section 1.02 hereof. The Completion Certificates
required by Section 1.02 may be delivered together or separately in any order
and at any time and from time to time on or prior to the Completion Date,
PROVIDED THAT the Legal Conditions Certificate referred to in clause (c) of
Section 1.02 and the Insurance Certificate referred to in clause (d) of
Section 1.02 shall be dated as of a date not earlier than the latest of the
dates of the Physical Facilities Certificate referred to in clause (a) of
Section 1.02 and the Operations Certificate referred to in clause (b) of
Section 1.02.
SECTION 1.02 COMPLETION CERTIFICATES. Completion shall
occur on the first date on which the Lender receives from the Borrower all of
the following certificates:
(a) PHYSICAL FACILITIES CERTIFICATE. A certificate of the
Borrower, executed by a Senior Officer and acknowledged by the
Independent Engineer, substantially in the form set forth in Appendix
A-1.
(b) OPERATIONS CERTIFICATE. A certificate of the Borrower,
executed by a Senior Officer and acknowledged by the Independent
Engineer, substantially in the form set forth in Appendix A-2.
(c) LEGAL CONDITIONS CERTIFICATE. A certificate of the
Borrower, executed by a Senior Officer, substantially in the form set
forth in Appendix A-3.
(d) INSURANCE CERTIFICATE. A certificate of the Borrower,
executed by a Senior Officer and acknowledged by the Insurance
Consultant, substantially in the form set forth in Appendix A-4.
SECTION 1.03 COMPLETION UNDERTAKING. Each Shareholder
severally undertakes to use its best efforts to cause the Completion Date to
occur by March 31, 2000.
SECTION 1.04 WAIVER OF COMPLETION CONDITIONS. Completion
shall be deemed to have occurred, even if the conditions set forth in Section
1.01 have not been satisfied, if the Lender delivers a notice to the Borrower
and the Shareholders stating that Completion has occurred.
SECTION 1.05 COMPLETION OF NON-CONFORMING PLANT. If the
Lender shall receive from the Borrower all the certificates required in
Section 1.02 hereof other than the certificate required by Section 1.02(b),
Completion shall nonetheless be deemed to have occurred if the following
conditions are met:
(a) The Lender shall have received a certificate of the
Borrower, executed by a Senior Officer and acknowledged by the
Independent Engineer, substantially in the form set forth in Appendix
A-2 except that the "90%" in paragraph (e) thereof shall be replaced by
such other percentage as shall apply (such other percentage being the
"ACTUAL CAPACITY").
(b) The Commitments under the Credit Agreement shall have been
reduced ratably by an aggregate amount equal to the following formula:
amount = C TIMES { 90-P(100) } OVER 100 TIMES 1.25 where AMOUNT is the
aggregate amount by which the Commitments should be ratably reduced, C
is the aggregate amount of the Commitments immediately prior to such
reduction and P is the Actual Capacity expressed as a fraction (E.G.,
80% would be "0.80").
(c) If, in giving effect to the reduction of the Commitments
pursuant to subsection (b) above, the aggregate principal amount of the
outstanding Term Advances exceeds the reduced Term Commitment or the
aggregate principal amount of the outstanding Working Capital Advances
exceed the Working Capital Commitment, then
the Shareholders shall have made a prepayment of the Term Advances
and/or the Working Capital Advances, as the case may be, in an
amount of principal equal to such excess, together with accrued and
unpaid interest thereon and all other amounts due and payable under
the Credit Agreement with respect to such amount of principal.
ARTICLE II
FUNDS TO COMPLETE
SECTION 2.01 FUNDS TO COMPLETE. (a) Prior to Completion,
each Shareholder shall provide (or cause to be provided) Shareholder funding,
in proportion to such Shareholder's Pro Rata Share (as defined in Section
2.03), at such times and in such amounts as may be necessary (taking into
account all Advances made and those to be made to the Borrower under the
Credit Agreement in accordance with the terms thereof) in order to pay when
required or due all costs and expenses incurred by or on behalf of the
Borrower in connection with the construction, development, design,
engineering, acquisition, financing, outfitting, testing, start-up and
completion of the Plant, including the cost of Plant equipment and each of
the following (such funding being the "FUNDS TO COMPLETE"): (i) all amounts
payable by the Borrower to its contractors, suppliers and subcontractors
pursuant to the Construction Documents; (ii) the costs and expenses of all
engineering, legal, accounting and other professional advisers properly
incurred by the Borrower in connection with and attributable to the Plant;
(iii) costs of Required Insurance; (iv) administration and maintenance costs
incurred during the construction period; and (vi) value-added tax, other
taxes and customs charges payable in respect of any of the above.
(b) The Funds To Complete shall be paid by the Shareholders
in the form of either (i) the subscription to additional shares of common
stock of the Borrower or other additional contributions to the owners' equity
of the Borrower or (ii) the lending of such funds to the Borrower, PROVIDED
that (A) on the date of such lending no event shall have occurred and shall
be continuing, or would result from such lending, that constitutes a Default
and (B) the obligation of the Borrower to repay such funds (and interest
thereon) is duly subordinated in right of payment, in writing and upon terms
(including, without limitation, terms regarding maturity) satisfactory to the
Lender, to the obligations of the Borrower under the Credit Agreement and the
Notes.
(c) Each Shareholder agrees punctually to pay its Pro Rata
Share of all Funds To Complete.
SECTION 2.02 NOTICE OF DEFAULT. The Borrower or any
Shareholder, as the case may be, shall notify the Lender, promptly, but in
any event within three Business Days, of the failure of any Shareholder to
make a timely payment in respect of Funds To Complete which such Shareholder
is obligated to pay, and of the subsequent payment thereof.
SECTION 2.03 PRO RATA SHARES. The obligations of the
Shareholders under this Agreement are several, and not joint and several, in
the following pro rata shares (the "PRO RATA SHARES"):
Accuride 51%
IASA 49%
Accordingly, notwithstanding any other provisions of this Agreement, neither
the Completion Default (as defined in Section 6.01) of a Shareholder nor the
failure of a Shareholder to meet any of its other obligations hereunder shall
increase the Pro Rata Share of the other Shareholder. The Pro Rata Share of a
Shareholder shall not be affected by any transfer of a Shareholder's interest
in the Borrower or by subscription of additional shares of the Borrower,
unless the Shareholder acquiring the additional interest expressly agrees to
assume the corresponding obligation of the transferring Shareholder and the
Lender shall have consented to such adjustment.
SECTION 2.04 OBLIGATIONS ABSOLUTE. Each Shareholder will
perform its obligations under this Agreement regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting
any of the terms of the Loan Documents or Construction Documents or any other
document related thereto or the rights of the Lender with respect thereto.
The obligations of each Shareholder under this Agreement are independent of
the Loan Documents and Construction Documents, and a separate action or
actions may be brought and prosecuted against each Shareholder to enforce
this Agreement, irrespective of whether any action is brought against the
other Shareholder, the Borrower or whether the Borrower or the other
Shareholder is joined in any such action or actions. The obligations of each
Shareholder under this Agreement shall be absolute and unconditional
irrespective of:
(i) any lack of validity or enforceability of any Loan
Document, any Construction Document or any other agreement or instrument
relating thereto or any collateral therefor;
(ii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Obligations of any Loan Party
under the Loan Documents or Construction Documents, or any other amendment or
waiver of or any consent to departure from the Loan Documents or Construction
Documents, including, without limitation, any increase in the Notes or the
obligations of the Borrower under the Credit Agreement resulting from the
extension of additional credit to the Borrower or any of its subsidiaries or
otherwise;
(iii) any taking, exchange, release or non-perfection of
any collateral, or any taking, release or amendment or waiver of or consent
to departure from any guaranty, whether for payment, collection or
performance, for the Loan Documents or Construction Documents;
(iv) any manner of application of collateral, or proceeds
thereof, to all or any of the obligations evidenced by the Loan Documents or
Construction Documents, or any manner of sale or other disposition of any
collateral for all or any of the obligations evidenced
by the Loan Documents or Construction Documents or any other assets
of the Borrower or any of its subsidiaries;
(v) any change, restructuring or termination of the
corporate structure or existence of the Borrower or any of its subsidiaries;
or
(vi) any other circumstance (including, without limitation,
any statute of limitations) which might otherwise constitute a defense
available to, or a discharge of, the Borrower or a surety.
This Agreement shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Obligations of the Borrower
under the Loan Documents or Construction Documents is rescinded or must
otherwise be returned by the Lender or any other Person upon the insolvency,
bankruptcy or reorganization of the Borrower or any other Loan Party or
otherwise, all as though such payment had not been made.
SECTION 2.05 WAIVERS AND ACKNOWLEDGMENTS. (a) Each
Shareholder hereby waives promptness, diligence, notice of acceptance and any
other notice with respect to the Loan Documents or Construction Documents and
any requirement that the Lender protect, secure, perfect or insure any Lien
or any property subject thereto or exhaust any right to take any action
against the Borrower or any other Person or any collateral.
(b) Each Shareholder hereby waives any right to revoke this
Agreement, and acknowledges that this Agreement is continuing in nature and
relates to all Obligations under the Loan Documents and Construction
Documents, whether existing now or in the future.
(c) Each Shareholder acknowledges that it will receive
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in this
Section 2.05 are knowingly made in contemplation of such benefits.
SECTION 2.06 SEPARATE UNDERTAKING. Without limiting the
generality of any of the foregoing provisions of this Agreement, each
Shareholder irrevocably waives, to the full extent permitted by applicable
law and for the benefit of, and as a separate undertaking with, the Lender,
any defense to the performance of this Agreement which may be available to a
Shareholder as a consequence of this Agreement being rejected or otherwise
not assumed by the Borrower or any trustee or other similar official for the
Borrower or for any substantial part of the property of the Borrower, or as a
consequence of this Agreement being otherwise terminated or modified, in any
proceeding seeking to adjudicate the Borrower a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of the Borrower or the debts of the
Borrower under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, whether such rejection, non-assumption, termination or
modification be by reason of this Agreement being held to be an executory
contract or by reason of any other circumstance. If a Shareholder is
prevented from performing its Obligations under this Agreement to or for the
benefit of the
Borrower because this Agreement shall be so rejected or otherwise not
assumed, or so terminated or modified, each Shareholder agrees for the
benefit of, and as a separate undertaking with, the Lender that it will be
unconditionally liable to pay to the Lender an amount equal to each payment
which would otherwise be payable by a Shareholder under or in connection with
this Agreement if this Agreement were not so rejected or otherwise not
assumed or were otherwise not so terminated or modified.
SECTION 2.07 RELEASE UPON PREPAYMENT OF ADVANCES.
Notwithstanding anything to the contrary herein, the Shareholders shall be
released of their obligations under Section 2.01 hereof upon (a) payment or
prepayment in full of all Advances then outstanding under the Credit
Agreement, together with all accrued and unpaid interest thereon and all
other amounts due and payable under the Credit Agreement and (b) termination
of all the Lender's obligations under the Credit Agreement, including without
limitation the Lender's obligation to make Advances thereunder.
SECTION 2.08. COMPLETION GUARANTY NOT APPLICABLE TO
OBLIGATIONS UNDER THE CREDIT AGREEMENT OR THE NOTES. Neither Shareholder
(whether as guarantor or otherwise) shall be required pursuant to this
Agreement to pay or otherwise discharge any Obligation of the Borrower
arising under the Credit Agreement or any of the Notes, and no provision in
this Agreement shall be interpreted as imposing any such requirement on
either of the Shareholders.
ARTICLE III
TERMINATION OF OBLIGATIONS
SECTION 3.01 TERMINATION UPON COMPLETION. This Agreement
shall terminate upon Completion. Promptly, but in any case within three
Business Days after such termination, the Lender shall notify the
Shareholders and the Borrower of such termination; provided, however, that no
failure on the part of the Lender to so notify the Shareholders and the
Borrower will extend or otherwise delay the date of such termination.
SECTION 3.02 TERMINATION PRIOR TO COMPLETION. The Borrower
may arrange at any time for insurance, a guaranty or another comparable
arrangement in form and substance, and from a Person or Persons, acceptable
to the Lender as a replacement for the Obligations of each of the
Shareholders under this Agreement. This Agreement shall terminate upon
acceptance in writing by the Lender of any such replacement arrangement.
SECTION 3.03 EFFECT OF TERMINATION Upon any termination of
this Agreement, all Obligations of the Borrower and of each Shareholder under
this Agreement shall terminate.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 REPRESENTATIONS AND WARRANTIES OF EACH
SHAREHOLDER. Each of the Shareholders hereby represents and warrants with
respect to itself as follows:
(a) Such Shareholder (i) is a corporation duly organized,
validly existing and, as to Accuride, in good standing under the laws
of the jurisdiction of its incorporation, and (ii) has all requisite
corporate power and authority (including, without limitation, all
material governmental licenses, permits and other approvals) to own its
shares of stock of the Borrower and to enter into this Agreement.
(b) The execution, delivery and performance of this Agreement
and each Related Document to which such Shareholder is or is to be a
party have been duly authorized by all necessary corporate action on
the part of such Shareholder, and do not (i) contravene such
Shareholder's charter or bylaws, (ii) violate any applicable provision
of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award applicable to such Stockholder, (iii)
result in the breach of, or constitute a default under, any loan
agreement, indenture, mortgage, deed of trust or other financial
instrument, or any other material contract or agreement, binding on or
affecting such Shareholder or any of its properties or (iv) except for
the Liens created under the Loan Documents, result in or require the
creation or imposition of any Lien upon or with respect to any of the
properties of such Shareholder.
(c) Other than those that have already been obtained and as
set forth in Schedule 4.01(c) and are in full force and effect, no
authorization or approval (including, in the case of the IASA, exchange
control approval) or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other third party
is required for the due execution, delivery or performance by such
Shareholder of this Agreement or any Related Document to which it is or
is to be a party.
(d) Each of this Agreement and the Related Documents to which
such Shareholder is a party has been duly executed and delivered by
such Shareholder and is the legal, valid and binding obligation of such
Shareholder, enforceable against such Shareholder in accordance with
its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar law affecting creditor's rights
generally or by general principles of equity.
(e) In the case of Accuride, the Consolidated balance sheet of
each of Accuride and its respective Subsidiaries as at December 31,
1997, and the related Consolidated statements of income and cash flow
of Accuride and its Subsidiaries for the fiscal year then ended,
accompanied by an opinion of Deloitte & Touche LLP, independent public
accountants, copies of which have been furnished to the Lender,
fairly present in all material respects the Consolidated financial
condition of Accuride and its respective Subsidiaries as at such
date and the Consolidated results of the operations of Accuride and
its Subsidiaries for the fiscal year ended on such date, all in
accordance with generally accepted accounting principles applied on
a consistent basis (unless otherwise expressly noted therein), and
since December 31, 1997, there has been no Material Adverse Change
other than as a result of the Acquisition as defined in, and the
transactions contemplated by, the Credit Agreement dated as of
January 21, 1998 among Accuride, Accuride Canada, Inc., the
financial institutions party thereto as Lenders, the Issuing Bank
and the Swing Line Bank, Citicorp USA, Inc. as Administrative
Agent, Citicorp Securities, Inc. as Arranger, Bankers Trust Company
as Syndication Agent, and Xxxxx Fargo Bank N.A. as Documentation
Agent, and the issuance of $200,000,000 aggregate principal amount
of Accuride's 9 1/4% Senior Subordinated Notes Due 2008, issued
January 21, 1998.
(f) In the case of IASA, the Consolidated balance sheet of
each of IASA and its respective Subsidiaries as at December 31, 1997,
and the related Consolidated statements of income and cash flow of IASA
and its Subsidiaries for the fiscal year then ended, accompanied by an
opinion of Xxxxxxxx y Asociados, independent public accountants, copies
of which have been furnished to the Lender fairly present in all
material respects the Consolidated financial condition of IASA and its
respective Subsidiaries as at such date and the Consolidated results of
the operations of IASA and its Subsidiaries for the fiscal year ended
on such date, all in accordance with generally accepted accounting
principles in Mexico, applied on a consistent basis (unless otherwise
expressly noted therein), and since December 31, 1997, there has been
no Material Adverse Change.
(g) No information, exhibit or report furnished by such
Shareholder to the Lender in writing in connection with the negotiation
of this Agreement or the other Loan Documents or pursuant to the terms
of this Agreement contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements made
herein and therein, taken as a whole, not misleading at such time in
light of the circumstances in which the same were made, it being
understood that for purposes of this Section 4.01(g), such factual
information does not include projections and pro forma financial
information.
(h) There is no action, suit, investigation, litigation or
proceeding affecting such Shareholder pending or, to the knowledge of
such Shareholder, threatened before any court, governmental agency or
arbitrator that (i) could reasonably be expected to have a Material
Adverse Effect or (ii) purports to affect the legality, validity or
enforceability of this Agreement, any other Loan Document or any
Related Document or the consummation of the transactions contemplated
hereby.
(i) There are no conditions precedent to the effectiveness of
this Agreement that have not been satisfied or waived.
(j) Each Shareholder has, independently and without reliance
upon the Lender and based on documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into
this Agreement.
ARTICLE V
COVENANTS
SECTION 5.01 COVENANTS OF EACH SHAREHOLDER. So long as any
Advance shall remain unpaid or the Lender shall have any Commitment, each
Shareholder will:
(a) PRESERVATION OF CORPORATE EXISTENCE, ETC. Preserve and
maintain its existence, legal structure, legal name, rights (charter
and statutory), permits, licenses, approvals, privileges and
franchises, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; PROVIDED,
HOWEVER, that such Shareholder shall not be required to preserve any
right, permit, license, approval, privilege or franchise if the Board
of Directors of such Shareholder shall determine that the preservation
thereof is no longer desirable in the conduct of the business of such
Shareholder and that the loss thereof is not disadvantageous in any
material respect to such Shareholder or the Lender.
(b) CONDUCT OF BUSINESS. In the case of Accuride, engage
primarily in the vehicle component business and any activity or
business incidental, directly related or similar thereto, and any other
lines of business carried on by such Shareholder on the date hereof or
utilizing such Shareholder's manufacturing capabilities on the date
hereof, and/or such other businesses or activities that constitute a
reasonable extension, development or expansion thereof or that are
ancillary or reasonably related thereto; in the case of IASA, engage
primarily in the autoparts business.
(c) VISITATION RIGHTS. At any reasonable time and from time to
time, upon reasonable notice and during normal business hours, permit
any authorized representatives designated by the Lender to examine and
make abstracts from the records and books of account of, and visit the
properties of, such Shareholder and to discuss the affairs, finances
and accounts of such Shareholder with any of its officers or directors
and with their independent certified public accountants, PROVIDED that
such Shareholder may, if it so chooses, be present at or participate in
any such discussion.
(d) KEEPING OF BOOKS. Keep proper books of record and account,
in which full and correct entries shall be made of all financial
transactions and the assets and business of such Shareholder in
accordance with, in the case of Accuride, GAAP and, in the case of
IASA, Mexican GAAP, as in effect from time to time.
(e) REPORTING REQUIREMENTS. Furnish to the Lender:
(i) DEFAULT OR LITIGATION NOTICE. Promptly upon any
Senior Officer of such Shareholder obtaining knowledge
thereof, notice of (i) the occurrence of any event that
constitutes a Completion Default, which notice shall specify
the nature thereof, the period of existence thereof and what
action such Shareholder proposes to take with respect thereto,
and (ii) any litigation or governmental proceeding pending
against such Shareholder that could reasonably be expected to
result in a Material Adverse Effect.
(ii) QUARTERLY FINANCIALS. As soon as available and
in any event within 60 days after the end of each of the first
three fiscal quarters of each fiscal year of such Shareholder,
(A) in the case of Accuride, a Consolidated balance sheet of
Accuride and its Subsidiaries as of the end of such fiscal
quarter and the related Consolidated statements of income and
cash flow for the period commencing at the end of the previous
fiscal quarter and ending with the end of such fiscal quarter
and for the period commencing at the end of the previous
fiscal year and ending with the end of such fiscal quarter,
setting forth in each case in comparative form the
corresponding figures for the corresponding period of the
preceding fiscal year of such Shareholder, all in reasonable
detail and duly certified (subject to year-end audit
adjustments) by the chief financial officer of Accuride as
having been prepared in accordance with GAAP, and (B) in the
case of IASA, a Consolidated balance sheet of IASA and its
Subsidiaries as of the end of such fiscal quarter and the
related Consolidated statements of income and cash flow for
the period commencing at the end of the previous fiscal
quarter and ending with the end of such fiscal quarter and for
the period commencing at the end of the previous fiscal year
and ending with the end of such fiscal quarter, in the form
required to be provided to the Mexican Bolsa de Valores,
together with such other financial information as shall be
provided by IASA with respect to such fiscal quarter to the
Mexican Bolsa de Valores, and in the case of either (A) or
(B), a certificate of an officer of such Shareholder stating
that no Completion Default has occurred and is continuing or,
if a Completion Default has occurred and is continuing, a
statement as to the nature thereof and the action that such
Shareholder has taken and proposes to take with respect
thereto.
(iii) ANNUAL FINANCIALS. As soon as available and in
any event within 120 days after the end of each fiscal year of
such Shareholder, a Consolidated balance sheet of such
Shareholder and its Subsidiaries as of the end of such fiscal
year and the related Consolidated statements of income and
cash flow for such fiscal year setting forth in each case in
comparative form the corresponding figures for the previous
fiscal year of such Shareholder, accompanied by an opinion
which shall be unqualified as to the scope of the audit and as
to the going concern status of such Shareholder and its
Subsidiaries taken as a whole, of independent public
accountants of recognized standing, together with a
certificate of such accounting firm to the Lender stating that
in the course of the regular audit of the business of such
Shareholder and its Subsidiaries, which
audit was conducted by such accounting firm in accordance with
applicable generally accepted auditing standards, such
accounting firm has obtained no knowledge that a Completion
Default has occurred and is continuing, or if, in the opinion
of such accounting firm, a Completion Default has occurred
and is continuing, a statement as to the nature thereof.
(iv) Promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and
reports that such Shareholder sends to its stockholders, and
copies of all regular, periodic and special reports, and all
registration statements, that such Shareholder files with the
Securities and Exchange Commission or any governmental
authority that may be substituted therefor or any equivalent
governmental authority in Mexico, or with any national
securities exchange in the United States or Mexico (in each
case to the extent not theretofore delivered to the Lender
pursuant to this Agreement), and with reasonable promptness
such other information (financial or otherwise) as the Lender
may reasonably request in writing from time to time.
(f) Within 30 days after the date hereof, provide to the
Lender a Spanish translation of this Agreement, duly executed and
delivered by such Shareholder and in form and substance satisfactory to
the Lender.
ARTICLE VI
COMPLETION DEFAULTS
SECTION 6.01 COMPLETION DEFAULTS. Each of the following events
shall be a default of a Shareholder (each a "COMPLETION DEFAULT") insofar as it
relates to such Shareholder:
(a) PAYMENT DEFAULT. Such Shareholder fails to pay or cause to
be paid, or to have paid on its behalf, on the date on which the same
is due and payable, any amount due pursuant to this Agreement and such
default is not remedied within 30 days.
(b) BREACH OF REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT.
A representation or warranty made by such Shareholder in this Agreement
proves to have been false in any material respect as and when made and
the condition causing such falsity has a material adverse effect on the
ability of such Shareholder to meet its obligations under this
Agreement.
(c) BREACH OF COVENANT, ETC. Such Shareholder fails to perform
or observe in any material respect any other term, covenant or
agreement contained herein to be performed or observed by it and such
failure continues unremedied for 30 days after notice thereof is given
by the Lender to such Shareholder.
(d) BANKRUPTCY EVENT. The Bankruptcy of a Shareholder.
(e) AGREEMENT UNENFORCEABLE. This Agreement is declared in a
final, non-appealable judgment of a court of competent jurisdiction to
be unenforceable against such Shareholder or such Shareholder shall
have repudiated its obligations hereunder. For this purposes a
statement or a dispute regarding the scope or nature of the parties'
rights and obligations under this Agreement or a failure to perform any
particular obligation as a result of such statement or dispute shall
not by itself be deemed to be a repudiation thereof other than a
failure that would otherwise constitute a Completion Default.
SECTION 6.02 COMPLETION DEFAULT REMEDIES. Upon the occurrence
and during the continuance of a Completion Default, the Lender shall be entitled
to the remedies afforded to it as set forth in the Credit Agreement.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01 AMENDMENTS. This Agreement may be amended only by
an agreement in writing signed by each party hereto.
SECTION 7.02 NOTICES, ETC. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) in the English language (or
accompanied by an accurate English language translation upon which any recipient
shall have the right to rely for all purposes) and mailed, telegraphed,
telecopied, telexed or delivered, if to a party hereto, at its address indicated
on the signature pages hereto, or at such other address as shall be designated
by such party in a written notice to the other parties. All such notices and
communications shall, when mailed, telegraphed, telecopied or telexed, be
effective when deposited in the mails, delivered to the telegraph company,
transmitted by telecopier or confirmed by telex answerback, respectively.
Delivery by telecopier of an executed counterpart of any amendment or waiver of
any provision of this Agreement or of any Exhibit hereto to be executed and
delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
SECTION 7.03 NO WAIVER; REMEDIES. No failure on the part of
the Lender to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 7.04 BINDING EFFECT. This Agreement shall become
effective when the conditions set forth in Section 3.01 of the Credit Agreement
shall have been either fulfilled
or waived and shall thereafter be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
SECTION 7.05 EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 7.06 EXECUTION IN TWO LANGUAGES. This Agreement shall
be executed in both the English and Spanish languages, both of which bind the
parties hereto and constitute but one agreement; PROVIDED, HOWEVER, that in case
of doubt as to the proper interpretation or construction of this Agreement, the
English text shall be controlling in all cases except with respect to any action
brought in the courts of Mexico, in which case the Spanish text shall be
controlling.
SECTION 7.07 JURISDICTION, ETC. (a) Each of the parties hereto
irrevocably agrees that any legal action, suit or proceeding arising out of or
relating to this Agreement may be brought in the courts of the State of New York
or of the United States of America located in the Southern District of New York
or in the courts of the Federal District of Mexico, at the election of the
plaintiff (except that the Lender shall not commence legal proceedings against
Accuride in Mexico). Final judgment against the Borrower or any Shareholder in
any such action, suit or proceeding shall be conclusive and may be enforced in
any other jurisdiction, including Mexico, by suit on the judgment, a certified
or exemplified copy of which shall be conclusive evidence of the judgment, or in
any other manner provided by law.
(b) By the execution and delivery of this Agreement, the each
of the parties irrevocably submits to the non-exclusive jurisdiction of the
courts of the State of New York and of the United States of America located in
the Southern District of New York in any such action, suit or proceeding and
designates, appoints and empowers CT Corporation Systems, at 0000 Xxxxxxxx, Xxx
Xxxx, XX 00000 as its authorized agent to receive for and on its behalf service
of any summons, complaint or other legal process in any such action, suit or
proceeding in the State of New York for so long as any obligation of the
Borrower or any Shareholder shall remain outstanding hereunder. The Borrower and
each Shareholder shall grant an irrevocable power of attorney to CT Corporation
Systems in respect of such appointment and shall maintain such power of attorney
in full force and effect for so long as any obligation of the Borrower or any
Shareholder shall remain outstanding hereunder.
(c) Nothing in this Agreement shall affect the right of the
Lender to commence legal proceedings or otherwise xxx the Borrower or any
Shareholder in Mexico or any other appropriate jurisdiction (except that the
Lender shall not commence legal proceedings against Accuride in Mexico), or to
serve process, pleadings and other legal papers upon the Borrower or any
Shareholder in any manner authorized by the laws of any such jurisdiction.
(d) As long as this Agreement remains in force, the Borrower
and each Shareholder shall maintain a duly appointed agent for the service of
summons, complaint and other legal process in New York, New York, United States,
for purposes of any legal action, suit or proceeding the Lender may bring in
respect of this Agreement. The Borrower shall keep the Lender advised of the
identity and location of such agent.
(e) The Borrower and each Shareholder also irrevocably
consent, if for any reason its authorized agent for service of process of
summons, complaint and other legal process in any such action, suit or
proceeding is not present in New York, New York, service of such papers may be
made out of those courts by mailing copies of the papers by registered United
States air mail, postage prepaid, to the Borrower and each Shareholder at its
address specified on the signature pages hereto. In such a case, the Lender
shall also send by telex or facsimile, or have sent by telex or facsimile, a
copy of the papers to the Borrower and each Shareholder.
(f) Service in the manner provided in subsection (e) above in
any such action, suit or proceeding will be deemed personal service, will be
accepted by the Borrower and each Shareholder as such and will be valid and
binding upon the Borrower and each Shareholder for all purposes of any such
action, suit or proceeding.
(g) The Borrower and each Shareholder hereby irrevocably
waive: (i) any objection which it may have now or in the future to the laying of
the venue of any such action, suit or proceedings in any court referred to in
this Section; and (ii) any claim that any such action, suit or proceedings has
been brought in an inconvenient forum.
SECTION 7.08 JUDGMENT. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder in Dollars
into another currency, the parties hereto agree, to the fullest extent that they
may effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Lender could purchase Dollars with
such other currency at Citibank in New York, New York on the Business Day
preceding that on which final judgment is given.
(b) The obligations of the Borrower and each Shareholder in
respect of any sum due from it to the Lender hereunder held by the Lender shall,
notwithstanding any judgment in a currency other than Dollars be discharged only
to the extent that on the Business Day of receipt by the Lender of any sum
adjudged to be so due in such other currency the Lender may in accordance with
normal banking procedures purchase Dollars with such other currency; if the
Dollars so purchased are less than the sum originally due by the Borrower or any
Shareholder to the Lender in Dollars, the Borrower and each Shareholder agrees,
as a separate obligation and notwithstanding any such judgment, to indemnify the
Lender against such loss, and if the Dollars so purchased exceed the sum
originally due by the Borrower or any Shareholder to the Lender in Dollars, the
Lender agrees to remit to the relevant party such excess.
SECTION 7.09 GOVERNING LAW. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York, United
States of America; PROVIDED, HOWEVER, that in connection with any legal action
or proceeding (other than an action to enforce a judgment obtained in another
jurisdiction) brought by the Lender in respect of this Agreement in the courts
of Mexico or any political subdivision thereof, this Agreement shall be deemed
to be an instrument made under the laws of Mexico and for such purposes shall be
governed by, and construed in accordance with, the laws of Mexico.
SECTION 7.10 THIRD PARTY BENEFICIARIES. This Agreement is for
the benefit of the parties hereto and their successors and permitted assigns and
nothing herein expressed or implied shall give or be construed to give any
person or entity, other than the parties hereto and such successors and assigns,
any legal or equitable rights hereunder, except that the parties hereto agree
that each Participant is a third party beneficiary to this Agreement, entitled
to all the rights accruing thereto.
SECTION 7.11 ENTIRE AGREEMENT. This Agreement and the Exhibits
and Schedules hereto constitute the entire agreement between the parties with
respect to the subject matter hereof and supersede all prior and contemporaneous
agreements, understandings, negotiations, correspondence, undertakings and
communications, both oral and written, between the parties with respect to the
subject matter hereof, including, without limitation, those provisions of the
Accuride de Mexico, S.A. de C.V. Summary of Terms and Conditions (finally
negotiated by the parties in May 1998) that deal with the subject of a
"Completion Guaranty". There are no restrictions, promises, representations,
warranties, covenants or undertakings by or between the parties with respect to
the subject matter hereof other than those expressly set forth or referred to
herein.
SECTION 7.12 WAIVER OF JURY TRIAL. The Borrower, each
Shareholder and the Lender irrevocably waive all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the actions of the
Lender in the negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the date first above written.
ACCURIDE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
Address: 0000 Xxxxx Xxxx
X.X. Xxx 00
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Attn: Xxxxxxx Xxxxxx
with a copy to:
Kohlberg Kravis Xxxxxxx & Co., L.P.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
INDUSTRIA AUTOMOTRIZ, S.A. DE C.V.
By: /s/ Xxxxxxxx Xxxxxxx Xxxxxxxx
-----------------------------------------
Name: Ing. Xxxxxxxx Xxxxxxx Xxxxxxxx
Title: Chairman of the Board
Address: Avenida Universidad 1011 Norte,
Planta Baja
San Nicolas de los Xxxxx
Xxxxx Xxxx
X.X. 00000 Xxxxxx
CITIBANK MEXICO, S.A.,
GRUPO FINANCIERO CITIBANK
By: /s/ Xxxxxx Libuic
-----------------------------------------
Name: Xxxxxx Libuic
Title: Attorney-in-Fact
Address: Reforma 000
Xxxxxx Xxxx, X.X. 00000
Xxxxxx
Accepted and agreed to as of the
date first written above:
ACCURIDE DE MEXICO, S.A. DE C.V.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Director General
Address: Avenida Universidad 1011 Norte,
Planta Baja
San Xxxxxxx xx xxx Xxxxx
Xxxxx Xxxx
X.X. 00000 Xxxxxx
Appendix A-1
to Completion Guaranty
FORM OF PHYSICAL FACILITIES CERTIFICATE
CITIBANK MEXICO, S.A.,
GRUPO FINANCIERO CITIBANK, as Lender
Grupo Financiero Xxxxxxxx
Xxxxxxx 000,
Xxxxxx Xxxx, Xxxxxx, D.F. 06695
Attention: Xxxx Xxxxxxx
Re: ACCURIDE DE MEXICO, S.A. DE C.V.
Ladies and Gentlemen:
This is the certificate referred to in clause (a) of Section 1.02 of the
Completion Guaranty Agreement, dated as of July 9, 1998 among the Borrower,
ACCURIDE CORPORATION, a Delaware corporation, INDUSTRIA AUTOMOTRIZ, S.A. DE
C.V., a corporation organized and existing under the laws of the United Mexican
States, and CITIBANK, S.A., GRUPO FINANCIERO CITIBANK, as the same may be
amended, supplemented or otherwise modified from time to time (the "COMPLETION
GUARANTY"). Capitalized terms herein and in the appendices hereto, except as
otherwise defined herein, shall have the meanings assigned to them in the
Completion Guaranty.
I, [Name of Senior Officer], as [_______________________] of the Borrower,
hereby certify after due inquiry that:
(a) As of the date hereof, the physical facilities and utilities of the
Plant as described in Appendix A-1-A (the "PHYSICAL FACILITIES") have been
installed substantially in accordance with the design documents, as amended in
accordance with the provisions of Appendix A-1-A, are substantially complete and
have become operational.
(b) As of the date hereof, each of the Physical Facilities has been
substantially completed, and each has been accepted by the Borrower from the
contractors or sub-contractors in accordance with the contracts or sub-contracts
for the construction or installation of each such facility.
(c) Attached to this Physical Facilities Certificate is a true and complete
copy of the Acknowledgment of the Independent Engineer in connection with this
Physical Facilities Certificate.
The Borrower hereby certifies, after due inquiry, that the facts stated by
the Borrower in this Certificate are true and complete.
IN WITNESS WHEREOF, I, [name of Senior Officer], have caused this
certificate to be duly executed.
Dated:
ACCURIDE DE MEXICO, S.A. DE C.V.
By:
Name:
Title: [Senior Officer]
ACKNOWLEDGMENT
This Acknowledgment is being delivered by the undersigned, [Name of
Independent Engineer], a [________________] duly organized and validly existing
under the laws of the [State] of [_______________], in connection with the
Completion Guaranty Agreement, dated as of July 9, 1998, among the Borrower,
ACCURIDE CORPORATION, a Delaware corporation, INDUSTRIA AUTOMOTRIZ, S.A. DE
C.V., a corporation organized and existing under the laws of the United Mexican
States, and CITIBANK MEXICO, S.A., GRUPO FINANCIERO CITIBANK, as the same may be
amended, supplemented or otherwise modified from time to time.
[Name of Independent Engineer] hereby certifies that it has reviewed the
Physical Facilities Certificate dated ______________ and has performed such
inspections which we have, in our reasonable judgment, deemed necessary for
purposes of this acknowledgment. Such inspections, including the names of our
employees or agents who performed them, are described in Appendix A-1-B to this
acknowledgment. Based on such inspections, we hereby certify that, to the best
of our knowledge, each of the certifications of the Borrower set forth in the
Physical Facilities Certificates is true and correct in all material respects as
of the date hereof.
IN WITNESS WHEREOF, [Name of Independent Engineer] has caused this
acknowledgment to be duly executed.
Dated:
[Name of Independent Engineer]
By:
Name:
Title:
Appendix A-1-A
to Completion Guaranty
PLANT PHYSICAL FACILITIES
The Plant's physical facilities shall comprise at a minimum those
facilities described hereafter. Physical facilities shall include facilities
installed by the Plant to connect to third parties. Design modifications and
improvements, as may be approved by the Borrower from time to time, will be
accommodated within this appendix provided that these amendments are documented,
transmitted to the Independent Engineer, approved by the Independent Engineer,
if required, and a final complete listing of these changes is provided to the
Independent Engineer prior to Completion.
Approval of the Independent Engineer is required for:
(i) Modifications to the physical facilities including
but not limited to changes in:
- Manufacturing equipment
- Environmental facilities
- Product lines
provided that only such modifications which
individually or in the aggregate materially impair
the Plant's performance shall require the
Independent Engineer's approval.
(ii) Those modifications which could materially impair the
expected operating or maintenance costs or expected
ongoing capital expenditures.
(iii) Modifications which could impair environmental
compliance or any permit or license (in place or
required).
(iv) Modifications or contractor change orders which are
estimated to cost in aggregate more than $500,000
for changes to the facilities or which could affect
schedule sequencing by more than 20 days.
Required Physical Facilities
1. New Spinner #1
2. New Truing Machine
3. Line A-8
4. Washer
5. Waste Water Treatment Facility
6. E-Coat System
7. Line 427
8. Line 468 or equivalent
9. Raw Material Crane
10. Emergency Electrical Plant to Protect E-Coat System
11. 600 T Press or equivalent
12. Decoiler
13. New Spinner #2
14. New Spinner #3
15. XXXX Line with Decoiler
16. Light Disc Press Line (L-4)
17. Line A-11 with New Truing Machine and Washer
Appendix A-2
to Completion Guaranty
FORM OF OPERATIONS CERTIFICATE
CITIBANK MEXICO, S.A.,
GRUPO FINANCIERO CITIBANK, as Lender
Grupo Financiero Xxxxxxxx
Xxxxxxx 000,
Xxxxxx Xxxx, Xxxxxx, D.F. 06695
Attention: Xxxx Xxxxxxx
Re: ACCURIDE DE MEXICO, S.A. DE C.V.
Ladies and Gentlemen:
This is the certificate referred to in clause (b) of Section 1.02 of the
Completion Guaranty Agreement, dated as of July 9, 1998, among the Borrower,
ACCURIDE CORPORATION, a Delaware corporation, INDUSTRIA AUTOMOTRIZ, S.A. DE
C.V., a corporation organized and existing under the laws of the United Mexican
States, and CITIBANK MEXICO, S.A., GRUPO FINANCIERO CITIBANK, as the same may be
amended, supplemented or otherwise modified from time to time (the "COMPLETION
GUARANTY"). Capitalized terms herein and in the appendices hereto, except as
otherwise defined herein, shall have the meanings assigned to them in the
Completion Guaranty.
I, [Name of Senior Officer], as [________________] of the Borrower, hereby
certify after due inquiry that:
(a) Attached to this certificate as Appendix B-2-A are copies of operating
records, test results, inspection reports and other documentation relating to
production by the Plant during the periods referred to in clause (c) below. Such
documentation accurately reflects, in all material respects, the production of
the Plant during the period to which it relates.
(b) All sampling procedures relevant to the matters covered by this
certificate were conducted by Borrower in accordance with Prudent Industry
Practices.
(c) For purposes of this Operations Certificate, the first test period (the
"FIRST TEST PERIOD") began on [date] and ended on [date] and was comprised of 5
consecutive Business Days [or such shorter period reasonably acceptable to the
Independent Engineer, to the extent reasonably justified based upon the
Borrower's current sales volume and other relevant factors], each of which days
was a scheduled operating day, and the second test period (the"SECOND TEST
PERIOD", and together with the First Test Period, the "TEST Periods") began on
[date] and ended on [date] and was comprised of 5 consecutive Business Days [or
such shorter period reasonably acceptable to the Independent Engineer, to the
extent reasonably justified based upon the Borrower's current sales volume and
other relevant factors], each of
which days was a scheduled operating day. Approximately one month elapsed
between the first day of the First Test Period and the last day of the Second
Test Period.
(d) All product units manufactured during the Test Periods completed
required qualification testing, and processes were verified to insure that parts
met dimensional requirements.
(e) Hourly production rates during the Test Periods were determined by the
total number of good parts that were completed on the specific lines for the
hours scheduled for the production run during the Test Period. Total hours
included set-up and required maintenance completed during the Test Period
("TOTAL HOURS"). The average hourly rates of production, expressed in units
produced per hour, for the Total Hours, for each of the lines or operations
listed below, were each within 90% of the hourly rate listed after such line or
operation:
Line/Operation Hour Rate (Units)
-------------- -----------------
Line 427 150
Spinners 52 light discs (each Spinner)
E-Coat 570 (Wheels and Rims)
[Line A-8 138]
XXXX 225
All the foregoing tests, except as specifically otherwise provided herein,
in this Section (e) have been performed during each of the Test Periods.
(f) During the First Test Period the actual quantities were:
Scheduled Actual Production
Scheduled Quantities Actual Quantities Production Hours Hours
-------------------- ----------------- ---------------- -----
(g) During the Second Test Period the actual quantities were:
Scheduled Actual Production
Scheduled Quantities Actual Quantities Production Hours Hours
-------------------- ----------------- ---------------- -----
(h) Attached to this Operations Certificate is a true and complete copy of
an Acknowledgment of the Independent Engineer in connection with this Operations
Certificate.
(i) The Plant is being operated by the Borrower in accordance with Prudent
Industry Practices.
The Borrower hereby certifies, after due inquiry, that the facts stated by
the Borrower in this Certificate are true and complete.
IN WITNESS WHEREOF, I, [name of Senior Officer], have caused this
certificate to be duly executed.
Dated:
ACCURIDE DE MEXICO, S.A. DE C.V.
By: ___________________________
Name:
Title: [Senior Officer]
ACKNOWLEDGMENT
This Acknowledgment is being delivered by the undersigned, [Name of
Independent Engineer], a [________________] duly organized and validly existing
under the laws of the [State] of [_______________], in connection with the
Completion Guaranty Agreement, dated as of July 9, 1998, among the Borrower,
ACCURIDE CORPORATION, a Delaware corporation, INDUSTRIA AUTOMOTRIZ, S.A. DE
C.V., a corporation organized and existing under the laws of the United Mexican
States, and CITIBANK MEXICO, S.A., GRUPO FINANCIERO CITIBANK, as the same may be
amended, supplemented or otherwise modified from time to time.
[Name of Independent Engineer] hereby certifies that it has reviewed the
Operations Certificate dated [___________] and has performed such inspections,
observations, analyses and other procedures which we have, in our reasonable
judgment, deemed necessary for purposes of this acknowledgment. Such procedures,
including the names of our employees or agents who performed them, are described
in Appending B-2-B to this acknowledgment. Based on such procedures described
above, we hereby certify that, to the best of our knowledge, each of the
certifications of the Borrower set forth in the Operations Certificate is true
and correct in all material respects as of the date hereof.
IN WITNESS WHEREOF, [name of Independent Engineer] has caused this
acknowledgment to be duly executed.
Dated:
[Name of Independent Engineer]
By: ___________________________
Name:
Title:
Appendix A-3
to Completion Guaranty
FORM OF LEGAL CONDITIONS CERTIFICATE
CITIBANK MEXICO, S.A.
GRUPO FINANCIERO CITIBANK, as Lender
Grupo Financiero Xxxxxxxx
Xxxxxxx 000,
Xxxxxx Xxxx, Xxxxxx, D.F. 06695
Attention: Xxxx Xxxxxxx
Re: ACCURIDE DE MEXICO, S.A. DE C.V.
Ladies and Gentlemen:
This is the certificate referred to in clause (c) of Section 1.02 of the
Completion Guaranty Agreement, dated as of July 9, 1998, among the Borrower,
ACCURIDE CORPORATION, a Delaware corporation, INDUSTRIA AUTOMOTRIZ, S.A. DE
C.V., a corporation organized and existing under the laws of the United Mexican
States, and CITIBANK MEXICO, S.A., GRUPO FINANCIERO CITIBANK, as the same may be
amended, supplemented or otherwise modified from time to time (the "COMPLETION
GUARANTY"). Capitalized terms herein and in the appendices hereto, except as
otherwise defined herein, shall have the meanings assigned to them in the
Completion Guaranty.
I, [Name], as _________________________ of the Borrower, hereby certify
after due inquiry that, to the best of my knowledge, as of the date hereof:
(a) Each of the Construction Documents remains in full force and effect.
(b) The authorizations, approvals and consents from governmental
authorities in the United Mexican States listed in Schedule 4.01(d)(ii) to the
Credit Agreement that are still required as of the date hereof, any others that
as of the date hereof have become required for, and in each case are material
to, operation of the Plant substantially as it was operated during the Test
Period referred to in the Operations Certificate, and those which are necessary
for the current stage of development of the Plant are in full force and effect
and not subject to appeal.
(c) The security interests required to be created by or pursuant to the
Collateral Documents are in full force and effect.
(d) No Default has occurred and is continuing.
(e) There are no contractors' liens (other than Permitted Liens as such
term is defined in the Credit Agreement) under Mexican law or under any
Construction Documents on any of the Physical Facilities of the Borrower.
The Borrower hereby certifies, after due inquiry, that the facts stated by
the Borrower in this Certificate are true and complete.
IN WITNESS WHEREOF, I, [name] have caused this certificate to be duly
executed.
Dated:
ACCURIDE DE MEXICO, S.A. DE C.V.
By: ___________________________
Name:
Title:
Appendix A-4
to Completion Guaranty
FORM OF INSURANCE CERTIFICATE
CITIBANK MEXICO, S.A.
GRUPO FINANCIERO CITIBANK, as Lender
Grupo Financiero Xxxxxxxx
Xxxxxxx 000,
Xxxxxx Xxxx, Xxxxxx, D.F. 06695
Attention: Xxxx Xxxxxxx
Re: ACCURIDE DE MEXICO, S.A. DE C.V.
Ladies and Gentlemen:
This is the certificate referred to in clause (d) of Section 1.02 of the
Completion Guaranty Agreement, dated as of July 9, 1998, among the Borrower,
ACCURIDE CORPORATION, a Delaware corporation, INDUSTRIA AUTOMOTRIZ, S.A. DE
C.V., a corporation organized and existing under the laws of the United Mexican
States, and CITIBANK MEXICO, S.A., GRUPO FINANCIERO CITIBANK, as the same may be
amended, supplemented or otherwise modified from time to time (the "COMPLETION
GUARANTY"). Capitalized terms herein and in the appendices hereto, except as
otherwise defined herein, shall have the meanings assigned to them in the
Completion Guaranty.
I, [Name], as _________________________ of the Borrower, hereby certify
after due inquiry that, as of the date hereof all minimum insurance coverage
required to be now in effect pursuant to Section 5.01(d) of the Credit Agreement
is in full force and effect.
Attached to this Insurance Certificate is a true and complete copy of the
Acknowledgment of the Insurance Consultant in connection with this Insurance
Certificate.
The Borrower hereby certifies, after due inquiry, that the facts stated by
the Borrower in this Certificate are true and complete.
IN WITNESS WHEREOF, I, [name] have caused this certificate to be duly
executed.
Dated:
ACCURIDE DE MEXICO, S.A. DE C.V.
By: ___________________________
Name:
Title:
ACKNOWLEDGMENT
This Acknowledgment is being delivered by the undersigned, [Name of
Insurance Consultant], a [________________] duly organized and validly existing
under the laws of the [State] of [_______________], in connection with the
Completion Guaranty Agreement, dated as of July 9, 1998 among the Borrower,
ACCURIDE CORPORATION, a Delaware corporation, INDUSTRIA AUTOMOTRIZ, S.A. DE
C.V., a corporation organized and existing under the laws of the United Mexican
States, and CITIBANK MEXICO, S.A., GRUPO FINANCIERO CITIBANK, as the same may be
amended, supplemented or otherwise modified from time to time.
[Name of Insurance Consultant], hereby certifies that it has reviewed the
Insurance Certificate dated [___________] and has performed such reviews and
other procedures which we have, in our reasonable judgment, deemed necessary for
purposes of this acknowledgment. Such procedures, including the names of our
employees or agents who performed them, are described in Appendix A-4-A to this
acknowledgment. Based on such procedures, we hereby certify that, to the best of
our knowledge, each of the certifications of the Borrower set forth in the
Insurance Certificate is true and correct in all material respects as of the
date hereof.
IN WITNESS WHEREOF, [name of Insurance Consultant] has caused this
acknowledgment to be duly executed.
Dated:
[Name of Insurance Consultant]
By: ___________________________
Name:
Title:
