Attached files
| file | filename |
|---|---|
| 8-K - FORM 8-K - COOPER TIRE & RUBBER CO | l42870e8vk.htm |
Exhibit 10.1
EXECUTION COPY
THIRD AMENDMENT TO
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this
“Amendment”), dated as of June 2, 2011, is entered into among COOPER RECEIVABLES LLC (the
“Seller”), COOPER TIRE & RUBBER COMPANY (the “Servicer”), MARKET STREET FUNDING LLC
(“Market Street”), as Related Committed Purchaser and as Conduit Purchaser and PNC BANK,
NATIONAL ASSOCIATION (“PNC”), as Administrator, as LC Participant, as LC Bank and as
Purchaser Agent.
RECITALS
1. The parties hereto are parties to the Amended and Restated Receivables Purchase Agreement,
dated as of September 14, 2007 (as amended, restated, supplemented or otherwise modified through
the date hereof, the “Agreement”); and
2. The parties hereto desire to amend the Agreement as hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
SECTION 1. Certain Defined Terms. Capitalized terms that are used but not defined
herein shall have the meanings set forth in the Agreement.
SECTION 2. Amendments to the Agreement. The Agreement is hereby amended as follows:
2.1 Section 6.7 of the Agreement is amended by adding the following phrase “to any
nationally recognized statistical rating organization or” to the beginning of clause (iii)
thereof immediately prior to the phrase “if applicable to” therein.
2.2 The definition of “Facility Termination Date” set forth in Exhibit I to
the Agreement is amended by replacing each reference to the date “August 4, 2011” where it appears
therein with “June 2, 2014”.
2.3 Clause (j)(i) of Exhibit V to the Agreement is amended by replacing the
phrase “the Seller, Cooper Tire or any of its Subsidiaries shall fail to pay” where it appears
therein with “the Seller or Cooper Tire shall fail to pay”.
SECTION 3. Agreement to Increase Commitments. If, on or prior to August 25, 2011, (i)
the Commitment Increase Condition (as defined below) has been satisfied, (ii) the Seller has so
requested (in its discretion) by written notice to the Administrator, (iii) no Termination Event or
Unmatured Termination Event shall have occurred and then be continuing and (iv) the applicable
“Additional Structuring Fee,” if any, payable pursuant to the Purchaser Group Fee
Letter described
in Section 6(b) below has been paid in full, then Market Street and PNC (in all their
capacities under the Agreement) agree to increase each of the following to an amount not exceeding
$175,000,000 (from $125,000,000): (A) the Group Commitment of Market Street’s Purchaser Group, (B)
Market Street’s Commitment as a Related Committed Purchaser, (C) PNC’s Commitment as the LC Bank
and as an LC Participant and (D) the Purchase Limit. In the event of any such increase, the
parties hereto agree to use commercially reasonable efforts to enter into such amendments and/or
agreements reasonably deemed necessary by the Administrator to give effect thereto within two (2)
Business Days following the Administrator’s receipt of the foregoing notice.
For purposes of the foregoing:
(1) the “Commitment Increase Condition” shall be deemed to have been satisfied if the
Revolving Credit Agreement (including the negative covenants regarding indebtedness set forth in
Section 10.2.1 thereof) shall have been amended in accordance with its terms to permit the
Purchase Limit, commitments and outstanding Capital under the Agreement to be increased to
$175,000,000 as contemplated by this Section 3; and
(2) “Revolving Credit Agreement” means the Loan and Security Agreement, dated as of
November 9, 2007, among Cooper Tire & Rubber Company and Max-Trac Tire Co., Inc., as borrowers, the
lenders from time to time party thereto, PNC, as syndication agent, the other parties from time to
time and JPMorgan Chase Bank, N.A., as co-documentation agents, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
SECTION 4. Representations and Warranties. Each of the Seller and the Servicer hereby
represents and warrants to the Administrator, each Purchaser and the Purchaser Agent as follows:
(a) Representations and Warranties. The representations and warranties made by
it in the Transaction Documents are true and correct as of the date hereof (unless stated to
relate solely to an earlier date, in which case such representations or warranties were true
and correct as of such earlier date).
(b) Enforceability. The execution and delivery by such Person of this
Amendment, and the performance of each of its obligations under this Amendment and the
Agreement, as amended hereby, are within each of its organizational powers and have been
duly authorized by all necessary organizational action on its part. This Amendment and the
Agreement, as amended hereby, are such Person’s valid and legally binding obligations,
enforceable in accordance with its terms.
(c) No Termination Event. Both before and immediately after giving effect to
this Amendment and the transactions contemplated hereby, no Termination Event or Unmatured
Termination Event exists or shall exist.
SECTION 5. Effect of Amendment. All provisions of the Agreement, as expressly amended
and modified by this Amendment, shall remain in full force and effect. After this Amendment becomes
effective, all references in the Agreement (or in any other Transaction Document) to “this
Agreement”, “hereof”, “herein” or words of similar effect referring to the
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Agreement shall be
deemed to be references to the Agreement as amended by this Amendment. This Amendment shall not be
deemed, either expressly or impliedly, to waive, amend or supplement any provision of the Agreement
other than as set forth herein.
SECTION 6. Effectiveness. This Amendment shall become effective as of the date hereof
upon receipt by the Administrator of each of the following, each in form and substance satisfactory
to the Administrator:
(a) duly executed counterparts of this Amendment; and
(b) duly executed counterparts of that certain Purchaser Group Fee Letter, dated as of the
date hereof, by and among the Administrator, Market Street Funding LLC, the Seller and the Servicer
(including receipt of the “Structuring Fee” referred to therein).
SECTION 7. Counterparts. This Amendment may be executed in any number of counterparts
and by different parties on separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute but one and the same
instrument. Delivery by facsimile or email of an executed signature page of this Amendment shall be
effective as delivery of an originally executed counterpart hereof.
SECTION 8. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
SECTION 9. Section Headings. The various headings of this Amendment are included for
convenience only and shall not affect the meaning or interpretation of this Amendment, the
Agreement or any provision hereof or thereof.
[Signatures begin on next page]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first
written above.
| COOPER RECEIVABLES LLC, as Seller |
||||
| By: | /s/ Charles F. Nagy | |||
| Name: | Charles F. Nagy | |||
| Title: | Assistant Treasurer | |||
| By: | /s/ Stephen O. Schroeder | |||
| Name: | Stephen O. Schroeder | |||
| Title: | President and Treasurer | |||
| COOPER TIRE & RUBBER COMPANY, as Servicer |
||||
| By: | /s/ Bradley E. Hughes | |||
| Name: | Bradley E. Hughes | |||
| Title: | Vice President and Chief Financial Officer | |||
| By: | /s/ Stephen O. Schroeder | |||
| Name: | Stephen O. Schroeder | |||
| Title: | Vice President and Treasurer | |||
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| PNC BANK, NATIONAL ASSOCIATION, as Administrator |
||||
| By: | /s/ William P. Falcon | |||
| Name: | William P. Falcon | |||
| Title: | Vice President | |||
| PNC BANK, NATIONAL ASSOCIATION, as Purchaser Agent |
||||
| By: | /s/ William P. Falcon | |||
| Name: | William P. Falcon | |||
| Title: | Vice President | |||
| PNC BANK, NATIONAL ASSOCIATION, as the LC Bank and as an LC Participant |
||||
| By: | /s/ Joseph G. Moran | |||
| Name: | Joseph G. Moran | |||
| Title: | Senior Vice President | |||
S-2
| MARKET STREET FUNDING LLC, as a Related Committed Purchaser and as Conduit Purchaser |
||||
| By: | /s/ Doris J. Hearn | |||
| Name: | Doris J. Hearn | |||
| Title: | Vice President | |||
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