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Exhibit 10.1
THIRD AMENDMENT AND WAIVER TO CREDIT
AGREEMENT
THIRD AMENDMENT AND WAIVER, dated as of December 18, 2008
(this " Third Amendment "), among COOPER-STANDARD HOLDINGS
INC., a Delaware corporation (f/k/a CSA Acquisition Corp.) ("
Holdings "), COOPER-STANDARD AUTOMOTIVE INC., an Ohio
corporation (the " U.S. Borrower "), COOPER-STANDARD
AUTOMOTIVE CANADA LIMITED, a corporation organized under the laws
of Ontario (the " Canadian Borrower "), COOPER-STANDARD
AUTOMOTIVE INTERNATIONAL HOLDINGS B.V. (f/k/a STEFFENS BEHEER BV),
a company incorporated under the laws of The Netherlands (the "
Dutch Borrower "), various Lenders party to the Credit
Agreement referred to below, and DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Administrative Agent (in such capacity, the "
Administrative Agent ").
WITNESSETH:
WHEREAS, Holdings, the U.S. Borrower, the Canadian Borrower, the
Dutch Borrower, various Lenders, the Administrative Agent and
certain other Agents have entered into a Credit Agreement, dated as
of December 23, 2004 (as amended, modified and/or supplemented
to, but not including, the date hereof, the " Credit
Agreement ");
WHEREAS, pursuant to the Credit Agreement, the Lenders have
extended credit to the Borrowers on the terms and conditions set
forth in the Credit Agreement;
WHEREAS, Holdings and the Borrowers have requested certain
amendments, consents and waivers to the Credit Agreement in
connection with the prepayment of Tender Term Loans (as defined
below) pursuant to the Discounted Voluntary Prepayment Transaction
(as defined below);
WHEREAS, Deutsche Bank Trust Company Americas has agreed to act
as prepayment agent for the Discounted Voluntary Prepayment
Transaction (in such capacity, the " Prepayment Agent ");
and
WHEREAS, Holdings, the Borrowers and the Lenders have agreed to
amend, and the Lenders have agreed to waive, certain provisions of
the Credit Agreement on the terms and conditions contained
herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE 1
Definitions
Section 1.1 Defined Terms . (a) Terms defined
in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement, unless otherwise defined
herein or the context otherwise requires.
(b) In addition, the following terms shall have the following
meanings as used herein:
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" Equity Contribution " shall mean,
collectively, (i) a cash contribution to the equity of
Holdings made on or after the Third Amendment Effective Date by one
or more shareholders of Holdings in exchange for common stock of
Holdings, (ii) a cash contribution by Holdings to the equity
of the U.S. Borrower with the proceeds of a contribution described
in preceding clause (i) in exchange for common stock of the
U.S. Borrower and (iii) in the case of a Discounted Voluntary
Prepayment by the Canadian Borrower, a cash contribution by the
U.S. Borrower, directly or indirectly through one or more
Wholly-Owned Subsidiaries, to the equity of the Canadian Borrower
with the proceeds of a contribution described in preceding clause
(ii).
" Tendering Borrower " shall mean (x) with respect
to Discounted Voluntary Prepayments of Tranche B Term Loans, the
Canadian Borrower and (y) with respect to Discounted Voluntary
Prepayments of Tranche C Term Loans, Tranche D Term Loans and/or
Tranche E Term Loans, the U.S. Borrower.
" Tender Term Loans " shall mean, collectively, the
Tranche B Term Loans, the Tranche C Term Loans, the Tranche D Term
Loans and the Tranche E Term Loans.
" Tender TL Lender " shall mean, with respect to any
Discounted Voluntary Prepayment of any Tranche of Tender Term
Loans, each Lender with outstanding Tender Term Loans under such
Tranche.
" Tranche D Term Loans " shall mean the Incremental Term
Loans in an initial aggregate principal amount of U.S.$190,000,000
incurred by the U.S. Borrower (and designated as "D" Term Loans)
pursuant to Section 2.01(d) of the Credit Agreement and that
certain Incremental Term Loan Commitment Agreement, dated as of
dated as of February 6, 2006, among Deutsche Bank AG New York
Branch, as Incremental Term Loan Lender thereunder, Holdings, the
U.S. Borrower, each U.S. Subsidiary Guarantor and the
Administrative Agent.
" Tranche E Term Loans " shall mean (i) the
Incremental Term Loans in an initial aggregate principal amount of
€20,725,000 incurred by the U.S. Borrower (and designated as
"E" Term Loans) pursuant to Section 2.01(d) of the Credit
Agreement and that certain Incremental Term Loan Commitment
Agreement, dated as of February 6, 2006, among Deutsche Bank
AG New York Branch, as Incremental Term Loan Lender, Holdings, the
U.S. Borrower, each U.S. Subsidiary Guarantor and the
Administrative Agent and (ii) the Incremental Term Loans in
the initial aggregate principal amount of €44,000,000
incurred by the U.S. Borrower in Euros (and initially designated as
"E-1" Term Loans) pursuant to Section 2.01(d) of the Credit
Agreement and that certain Incremental Term Loan Commitment
Agreement, dated as of August 15, 2007, among Export
Development Canada, ING Capital LLC, Citibank, N.A., General
Electric Capital Corporation, Deutsche Bank AG New York Branch, and
Goldman Sachs Credit Partners L.P., as Incremental Term Loan
Lenders, Holdings, the U.S. Borrower, each U.S. Subsidiary
Guarantor and the Administrative Agent.
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ARTICLE 2
Discounted Voluntary Prepayment
Transaction
Section 2.1 Discounted Voluntary Prepayment .
(a) Each of the U.S. Borrower and the Canadian Borrower has
notified the Lenders that it may wish to make voluntary prepayments
of one or more Tranches of its Tender Term Loans (each, a "
Discounted Voluntary Prepayment ") during the period
commencing on the Third Amendment Effective Date (as hereinafter
defined) and ending on the date that is eighteen months following
the Third Amendment Effective Date (the " Discounted Voluntary
Prepayment Period ") pursuant to the procedures and limitations
described in this Section 2.1 (the transactions described in
this Section 2.1, collectively, the " Discounted Voluntary
Prepayment Transaction "). In connection with any Discounted
Voluntary Prepayment of a given Tranche of Tender Term Loans, the
relevant Tendering Borrower will notify each Lender with such
Tender Term Loans in writing (the " Prepayment Notice ")
that such Tendering Borrower desires to prepay such Tender Term
Loans with proceeds in an aggregate amount specified by such
Tendering Borrower (which amount shall be not less than the amount
necessary to prepay U.S.$25,000,000 (or, €20,000,000, in the
case of Tranche E Term Loans) of par principal amount of Tender
Term Loans in the aggregate in each case, determined using the
lowest Discount (as defined below) in the range specified by such
Tendering Borrower below) (each, a " Prepayment Amount ") at
a discount (which is expected to be within a range to be specified
by such Tendering Borrower with respect to each Discounted
Voluntary Prepayment; the " Discount ") equal to a
percentage of par of the principal amount of such Tender Term Loans
being prepaid; provided that (i) the aggregate
Prepayment Amounts for all Discounted Voluntary Prepayments
undertaken by the Tendering Borrowers of all Tender Term Loans
prepaid during the Discounted Voluntary Prepayment Period shall not
exceed U.S.$150,000,000 in the aggregate (for such purpose, taking
the U.S. Dollar Equivalent of the Prepayment Amount with
respect to any Tranche E Term Loans subject to a Discounted
Voluntary Prepayment (determined as of the date of such Discounted
Voluntary Prepayment, and excluding any voluntary prepayments of
any Tender Term Loans made in accordance with the Credit Agreement
as in effect prior to the Third Amendment Effective Date), and
(ii) the Tendering Borrowers may issue no more than four
Prepayment Notices that result in a Discounted Voluntary Prepayment
(and make no more than four Discounted Voluntary Prepayments) in
any twelve month period. Each Discounted Voluntary Prepayment shall
be financed exclusively with either (x) internally generated
cash of the U.S. Borrower and its Subsidiaries ( i.e. , cash
not representing proceeds of Indebtedness, asset sales,
insurance recovery events or sales or issuances of Equity Interests
of, or equity contributions to, Holdings or any of its
Subsidiaries), provided , however , that (I) no
such internally generated cash of the U.S. Borrower and its
Subsidiaries may be used to finance a Discounted Voluntary
Prepayment, unless (and only to the extent that) (1) after
giving effect to the respective Discounted Voluntary Prepayment
(and the application of all internally generated cash and the cash
proceeds of all Equity Contributions actually used to finance the
same) the sum of (A) the Unrestricted cash and Permitted
Investments of the U.S. Borrower and its Subsidiaries plus
(B) the Total Unutilized Revolving Loan Commitment at such
time shall equal or exceed U.S.$125,000,000 and (2) the U.S.
Borrower shall have delivered an officer’s certificate to the
Prepayment Agent on the date of such Discounted Voluntary
Prepayment demonstrating compliance with preceding subclause
(1) and/or (y) cash proceeds of Equity Contributions.
Notwithstanding anything to the contrary contained herein, and for
avoidance of doubt, any such internally generated cash of the
U.S.
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Borrower and its Domestic Subsidiaries used to
finance a Discounted Voluntary Prepayment by the Canadian Borrower
shall be permitted only to the extent such cash is otherwise
permitted to be invested in the Canadian Borrower pursuant to
Section 10.04 of the Credit Agreement.
(b) In connection with a Discounted Voluntary Prepayment of a
given Tranche of Tender Term Loans, the relevant Tendering Borrower
will allow each applicable Tender TL Lender to specify (a "
Prepayment Offer ") a discount to par (the " Acceptable
Discount ") for a principal amount (subject to rounding
requirements specified by the Prepayment Agent) of such Tender Term
Loans at which such Tender TL Lender is willing to permit such
Discounted Voluntary Prepayment (and which shall be within any
range specified by such Tendering Borrower with respect to such
Discounted Voluntary Prepayment). Each Tendering Borrower will
accept Prepayment Offers in the order of lowest to highest
prepayment price specified by the respective Tender TL Lenders in
the Prepayment Offers so as to enable such Tendering Borrower to
complete the Discounted Voluntary Prepayment for the Prepayment
Amount. Based on the Acceptable Discounts and principal amounts of
such Tender Term Loans specified by the Tender TL Lenders, the
applicable discount (the " Applicable Discount ") for the
Discounted Voluntary Prepayment will be the highest Acceptable
Discount ( i.e. , the lowest prepayment price) at which the
relevant Tendering Borrower can complete the Discounted Voluntary
Prepayment for the full Prepayment Amount and which is within the
range for the Discount specified by such Tendering Borrower. Each
Tendering Borrower shall prepay such Tranche of Tender Term Loans
(or the respective portions thereof) offered by Tender TL Lenders
at the Acceptable Discounts specified by each such Tender TL Lender
that are equal to or greater than the Applicable Discount ("
Qualifying Tender Term Loans ") at the Applicable Discount;
provided that if the aggregate proceeds required to prepay
Qualifying Tender Term Loans (disregarding any interest payable
under Section 2.1(c) hereof) would exceed the Prepayment
Amount for such Discounted Voluntary Prepayment, the relevant
Tendering Borrower shall prepay such Qualifying Tender Term Loans
at the Applicable Discount ratably based on the respective
principal amounts of such Qualifying Tender Term Loans (subject to
rounding requirements specified by the Prepayment Agent).
(c) All Tender Term Loans prepaid by the Tendering Borrowers
pursuant to this Section 2.1 shall be accompanied by payment
of accrued and unpaid interest on the par principal amount so
prepaid to, but not including, the date of prepayment.
(d) The par principal amount of Tender Term Loans of a given
Tranche prepaid pursuant to this Section 2.1 shall be applied
to reduce the remaining Scheduled Repayments of such Tranche of
Tender Term Loans in indirect order of maturity.
(e) Each Discounted Voluntary Prepayment shall be consummated
pursuant to procedures (including as to timing, settlement,
irrevocability of Prepayment Notices and acceptances of Prepayment
Offers, rounding and minimum amounts, applicable Borrowings of
accepted Tender Term Loans and other notices by the Tendering
Borrowers and Tender TL Lenders and determination of Applicable
Discount) established by the Prepayment Agent in consultation with
the Tendering Borrowers; it being understood and agreed that
(x) each Tendering Borrower shall have the right to revoke its
offer for a Discounted Voluntary Prepayment and rescind its
Prepayment Notice therefor at its discretion at any time prior to
such Tendering Borrower’s delivery of a final notice of
acceptance of the related Prepayment Offers,
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(y) the settlement date for payment of accepted
Prepayment Offers shall not be later than 30 days after the
applicable Tendering Borrower’s delivery of a final notice of
acceptance therefor, and (z) unless otherwise determined by
the Prepayment Agent, all Discounted Voluntary Prepayments of a
given Tranche of Tender Term Loans shall be applied to all then
outstanding Borrowings of such Tender Term Loans on a pro
rata basis (based on the relative sizes of the various
outstanding Borrowings of such Tranche of Tender Term Loans), so
that all Lenders with outstanding Tender Term Loans under the
applicable Tranche will continue to participate in each then
outstanding Borrowing of such Tranche of Tender Term Loans on a
pro rata basis (based upon the then outstanding
principal amount of all Tender Term Loans under such Tranche after
giving effect to such Discounted Voluntary Prepayment as if made at
par). The Lenders hereby further agree that, following a Discounted
Voluntary Prepayment of a given Tranche of Tender Term Loans and
notwithstanding anything to the contrary contained in the Credit
Agreement, (i) interest in respect of such Tender Term Loans
may be made on a non- pro rata basis among the
Lenders holding such Tender Term Loans to reflect the payment of
accrued interest to certain Tender TL Lenders as provided in
Section 2.1(c) hereof and (ii) all subsequent prepayments
and repayments of such Tender Term Loans (other than a Discounted
Voluntary Prepayment) shall be made on a pro rata
basis among the Lenders holding such Tender Term Loans (based upon
the then outstanding principal amounts of such Tender Term Loans of
such Lenders after giving effect to any Discounted Voluntary
Prepayment as if made at par).
(f) Except (i) for purposes of the definition of "Adjusted
Excess Cash Flow" appearing in Section 1 of the Credit
Agreement (as to which a Discounted Voluntary Prepayment shall be
treated as specified in such definition as amended hereby) and
(ii) as otherwise expressly provided herein, each Discounted
Voluntary Prepayment of a given Tranche of Tender Term Loans shall
constitute a voluntary prepayment of such Tranche of Tender Term
Loans for all purposes under the Credit Agreement (including clause
(f)(ii) of the definition of "Excess Cash Flow" appearing in
Section 1 of the Credit Agreement and Sections 5.01(ii) and
(iii) of the Credit Agreement).
(g) The Lenders hereby (i) consent to the transactions
described in this Section 2.1 notwithstanding anything to the
contrary in the Credit Agreement, (ii) waive the requirements
of any provision of the Credit Agreement (including, without
limitation, Sections 5.01(iv) and 13.06) that might otherwise
prohibit the Discounted Vol
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