UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): August 5, 2010
COOPER TIRE & RUBBER COMPANY
(Exact Name of Registrant as Specified in Charter)
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Delaware
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1-04329
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34-4297750
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(State or Other Jurisdiction
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(Commission
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(IRS Employer
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of Incorporation)
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File Number)
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Identification No.)
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701 Lima Avenue, Findlay, Ohio
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45840
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrant’s telephone number, including area code:
(419) 423-1321
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (
see
General Instruction
A.2.):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01. Entry into to a Material Definitive Agreement.
On August 5, 2010, under a Second Amendment to Amended and Restated Receivables Purchase Agreement,
Cooper Tire & Rubber Company, a Delaware corporation (the “
Company
”), Cooper Receivables LLC,
a Delaware limited liability company and wholly-owned subsidiary of the Company (
“
CRLLC”
), Market
Street Funding LLC and PNC Bank, National Association amended the Company’s accounts receivable
securitization facility to provide the following:
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Make modifications to the calculations for certain reserves;
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Extend the maturity date of the accounts receivable securitization facility to August 4, 2011;
and
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Establish a minimum usage amount of $30,000,000.00.
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The summary of the amendment to the accounts receivable securitization facility described above is
qualified in its entirety by reference to the Second Amendment to Amended and Restated Receivables
Purchase Agreement attached hereto as Exhibit 10.1 and incorporated herein by reference.
As
reported in the Current Report on Form 8-K filed on August 31, 2006, the accounts receivable
securitization facility was established by a Purchase and Sale Agreement, dated as of August 30,
2006 (the
“Purchase and Sale Agreement
”), by and among the Company, Oliver Rubber Company, at the
time, a California corporation and wholly-owned subsidiary of the Company, and CRLLC, under which
the Company agreed to sell certain of its and Oliver’s domestic trade receivables, on a continuous
basis, to CRLLC in exchange for cash or a short-term note. In turn, CRLLC agreed to sell from time
to time senior undivided ownership interests in the purchased trade receivables, without recourse,
to PNC Bank, National Association pursuant to a Receivables Purchase Agreement, dated as of August
30, 2006 (the “
Receivables Purchase Agreement
”), for the benefit of the purchasers named in the
Receivables Purchase Agreement. The transaction was amended several times prior to the current
amendment as reported in other Current Reports on Form 8-K filed on August 31, 2006, December 1,
2006, March 9, 2007, and September 14, 2007.
Item 9.01.
Financial Statements and Exhibits.
(d) Exhibits
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10.1
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Second Amendment to Amended and Restated Receivables Purchase Agreement dated as of August 5,
2010, by and among Cooper Receivables LLC, Cooper Tire & Rubber Company, Market Street Funding
LLC and PNC Bank, National Association.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned hereunto duly authorized.
COOPER TIRE & RUBBER COMPANY
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By:
Name:
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/s/ Jack Jay McCracken
Jack Jay McCracken
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Title:
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Assistant Secretary
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Date: August 9, 2010
4
EXHIBIT INDEX
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Exhibit
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Number
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Description
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10.1
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Second Amendment to Amended and Restated Receivables Purchase Agreement dated as of August
5, 2010, by and among Cooper Receivables LLC, Cooper Tire & Rubber Company, Market Street
Funding LLC and PNC Bank, National Association.
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Exhibit 10.1
EXECUTION VERSION
[COOPER]
SECOND AMENDMENT TO
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT (this
“
Amendment
”), dated as of August 5, 2010, is entered into among COOPER RECEIVABLES LLC (the
“
Seller
”), COOPER TIRE & RUBBER COMPANY (the “
Servicer
”), MARKET STREET FUNDING
LLC, as Related Committed Purchaser and as Conduit Purchaser and PNC BANK, NATIONAL ASSOCIATION, 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
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2.1
Clause (A)
of the proviso to
Section 1.4(f)
of the Agreement is hereby
amended and restated in its entirety as follows:
(A) the amount of any such reduction shall be not less than $100,000 for each
Purchaser Group and shall be an integral multiple of $100,000, and the sum of the
Aggregate Capital and the LC Participation Amount after giving effect to such
reduction shall be not less than the Minimum Usage Amount; and
2.2
Clause (a)
of
Section 1.13
of the Agreement is hereby amended and restated
in its entirety as follows:
(a) The Seller may request the LC Bank, upon two (2) Business Days’ prior written
notice submitted on or before 11:00 a.m., Pennsylvania time, to issue a Letter of Credit by
delivering to the Administrator a Letter of Credit Application (the “Letter of Credit
Application”), substantially in the form of
Annex F
hereto and a Purchase Notice, in
the form of
Annex B
hereto, in each case completed to the satisfaction of the
Administrator and the LC Bank, and such other certificates, documents and other papers and
information as the Administrator may reasonably request. The Seller also has the
right to give instructions and make agreements with respect to any Letter of Credit
Application and the disposition of documents, and to agree with the Administrator upon any
amendment, extension or renewal of any Letter of Credit.
2.3
Clause (b)
of
Section 1.13
of the Agreement is hereby amended and restated
in its entirety as follows:
(b) Each Letter of Credit shall, among other things, (i) provide for the payment of
sight drafts or other written demands for payment when presented for honor thereunder in
accordance with the terms thereof and when accompanied by the documents described therein,
(ii) have an expiry date not later than twelve (12) months after such Letter of Credit’s
date of issuance, extension or renewal, as the case may be, and in no event later than the
date that is twelve (12) months after the Facility Termination Date. Each Letter of Credit
shall be subject either to the Uniform Customs and Practice for Documentary Credits (2007
Revision), International Chamber of Commerce Publication No. 600, and any amendments or
revisions thereof adhered to by the LC Bank (the “
UCP Rules
”) or the International
Standby Practices (ISP98-International Chamber of Commerce Publication Number 590), and any
amendments or revisions thereof adhered to by the LC Bank (the “
ISP98 Rules
”), as
determined by the LC Bank.
2.4
Clause (c)
of
Section 1.13
of the Agreement is hereby amended by deleting
the reference to the words “paragraph (a)” therein and substituting a reference to the words
“Section 1.13(a)” therefor.
2.5 The Agreement is hereby amended by inserting, in the appropriate numerical order, the
following new
Section 1.23:
Section 1.23
Minimum Usage Amount Computation
. The Minimum Usage Amount shall
be initially computed on August 5, 2010. Thereafter, until the Facility Termination Date,
such Minimum Usage Amount shall be automatically recomputed (or deemed to be recomputed) on
each Business Day.
2.6 The address for notice for the Servicer for purposes of
Section 6.4
of the
Agreement is hereby amended to be as set forth on
Exhibit A
hereto.
2.7
Exhibit I
to the Agreement is hereby amended by inserting, in the appropriate
alphabetical order, the following new definitions:
“
Adjusted LC Participation Amount
” means, at any time, the LC Participation
Amount minus the amount on deposit in the LC Collateral Account.
“
Minimum Usage Amount
” means, at any time, an amount greater than or equal to
the lesser of (A) $30,000,000 and (B) an amount determined as the sum of the Aggregate
Capital plus the LC Participation Amount necessary to cause the Purchased Interest to equal
100%.
2.8 The definition of “Alternate Rate” set forth in
Exhibit I
to the Agreement is
hereby amended and restated in its entirety as follows:
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“
Alternate Rate
” for any Yield Period for any Portion of Capital funded by any
Purchaser other than through the issuance of Notes, means an interest rate
per
annum
equal to the greater of: (a) 4.00%
per
annum
above the
Euro-Rate for such Yield Period, or (b) the Base Rate for such Yield Period;
provided
, that the “Alternate Rate” for any day while a Termination Event or an
Unmatured Termination Event exists shall be an interest rate equal to the greater of (i)
2.0%
per
annum
above the Base Rate in effect on such day and (ii) the
“Alternate Rate” as calculated in
clause (a)
above.
2.9 The definition of “Canadian Currency Volatility Reserve” set forth in
Exhibit I
to
the Agreement is hereby amended by deleting the reference to the percentage “6.77%” therein and
substituting a reference to the percentage “12.65%” therefor.
2.10 The definition of “Concentration Percentage” set forth in
Exhibit I
to the
Agreement is hereby amended and restated in its entirety as set forth below:
“
Concentration Percentage
” means, at any time: (a) for any Group A Obligor,
20.0%, (b) for any Group B Obligor, 20.0%, (c) for any Group C Obligor, 13.3% and (d) for
any Group D Obligor, 8.0%;
provided
,
however
, that the Administrator (with
the prior written consent of the Majority Purchaser Agents ) may (to the extent the Rating
Agency Condition has been satisfied with respect thereto if required by the securitization
program of any Conduit Purchaser) approve higher Concentration Percentages for selected
Obligors.
2.11 The definition of “Concentration Reserve Percentage” set forth in
Exhibit I
to
the Agreement is hereby amended and restated in its entirety as follows:
“
Concentration Reserve Percentage
” means, at any time, the (a) largest of the
following: (i) the sum of the five (5) largest Group D Obligor Receivables balances (up to
the Concentration Percentage for each Obligor), (ii) the sum of the three (3) largest Group
C Obligor Receivables balances (up to the Concentration Percentage for each Obligor), (iii)
the sum of the two (2) largest Group B Obligor Receivables balances (up to the Concentration
Percentage for each Obligor), and (iv) the largest Group A Obligor Receivables balance (up
to the Concentration Percentage for such Obligor), divided by (b) the sum of the outstanding
balances of all Eligible Receivables.
2.12 The last sentence of the definition of “CP Rate” set forth in
Exhibit I
to the
Agreement is hereby amended and restated in its entirety as follows:
The “
CP Rate
” for any day while a Termination Event or an Unmatured Termination Event
exists shall be an interest rate equal to the greater of (a) 2.0%
per
annum
above
the Base Rate as in effect on such day and (b) the Alternate Rate as calculated in the definition
thereof.
2.13 The definition of “Dilution Reserve Percentage” set forth in
Exhibit I
to the
Agreement is hereby amended and restated in its entirety as follows:
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“
Dilution Reserve Percentage
” means, on any date, the product of (a) the
Dilution Horizon multiplied by (b) the sum of (i) 2.5 times the average of the Dilution
Ratios for the twelve most recent calendar months and (ii) the Dilution Spike Factor.
2.14 The definition of “Excess Concentration” set forth in
Exhibit I
to the Agreement
is hereby amended by (a) deleting clause (ii) thereof in its entirety and, after deleting such
clause (ii), (b) renumbering clauses (iii) through (vi) thereof as clauses (ii) through (v).
2.15 The definition of “Facility Termination Date” set forth in
Exhibit I
to the
Agreement is hereby amended by deleting each reference to the date “September 14, 2010” therein and
substituting a reference to the date “August 4, 2011” therefor.
2.16 Clause (a)(i) of the definition of “Loss Reserve Percentage” set forth in
Exhibit
I
to the Agreement is hereby amended by deleting the reference to the number “two” therein and
substituting a reference to the number “2.5” therefor.
2.17 The definition of “Minimum Dilution Reserve” set forth in
Exhibit I
to the
Agreement is hereby amended and restated in its entirety as follows:
“
Minimum Dilution Reserve
” means at any time, the product of (a) the Aggregate
Capital plus the LC Participation Amount at the close of business of the Servicer on such
date multiplied by (b)(i) the Minimum Dilution Reserve Percentage divided by (ii) 1 minus
the Minimum Dilution Reserve Percentage.
2.18 The second sentence of the definition of “Purchased Interest” set forth in
Exhibit
I
to the Agreement is hereby amended by deleting the reference to the term “LC Participation
Amount” therein and substituting a reference to the term “Adjusted LC Participation Amount”
therefor.
2.19 The proviso to the definition of “Termination Day” set forth in
Exhibit I
to the
Agreement is hereby deleted in its entirety.
2.20
Clause (a)
of
Section 2
of
Exhibit II
to the Agreement is hereby
amended and restated in its entirety as follows:
(a) in the case of each Funded Purchase and the issuance of any Letters of Credit, the
Servicer shall have delivered to the Administrator and each Purchaser Agent on or before
such purchase or issuance, as the case may be, in form and substance satisfactory to the
Administrator and each Purchaser Agent, a completed pro forma Information Package to reflect
the level of the Aggregate Capital, the LC Participation Amount and related reserves and the
calculation of the Purchased Interest after such subsequent purchase or issuance, as the
case may be, and a completed Purchase Notice in the form of
Annex B
(in the case of
such purchase) and a completed Letter of Credit Application in the form of
Annex F
(in the case of such issuance); and
2.21
Clause (g)
of
Exhibit V
to the Agreement is hereby amended and restated
in its entirety as follows:
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(g) (i) the (A) Default Ratio shall exceed 2.0%, (B) Delinquency Ratio shall exceed
4.0%, (ii) the average for three consecutive calendar months of: (A) the Default Ratio shall
exceed 1.5%, (B) the Delinquency Ratio shall exceed 3.0%, or (C) the Dilution Ratio shall
exceed 10.0% or (iii) Days’ Sales Outstanding exceeds 68 days;
2.22
Exhibit V
to the Agreement is hereby amended by (a) deleting the word “or” at the
end of
clause (k)
thereof, (b) deleting the period at the end of
clause (l)
thereof
and substituting therefor the following text “; or” and (c) inserting, in the appropriate
alphabetical order, the following new
clause (m)
:
(m) the sum of the Aggregate Capital plus the LC Participation Amount shall be less
than the Minimum Usage Amount for two (2) Business Days after the earlier of the Seller’s or
Servicer’s knowledge or notice thereof.
SECTION
3.
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 Default
. 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 4.
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 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 5.
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
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(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 6.
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 7.
Governing Law
. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
SECTION 8.
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.
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COOPER RECEIVABLES LLC, as Seller
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By:
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/s/ C. F. Nagy
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Name:
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Charles F. Nagy
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Title:
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Assistant Treasurer
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By:
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/s/ S. O. Schroeder
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Name:
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Stephen O. Schroeder
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Title:
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President and Treasurer
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COOPER TIRE & RUBBER COMPANY, as Servicer
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By:
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/s/ Bradley E. Hughes
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Name:
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Bradley E. Hughes
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Title:
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Vice President and Chief Financial Officer
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By:
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/s/ S. O. Schroeder
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Name:
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Stephen O. Schroeder
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Title:
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Vice President and Treasurer
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Second Amendment to A&R RPA (Cooper)
S-1
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PNC BANK, NATIONAL ASSOCIATION,
as Administrator
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By:
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/s/ Robyn A. Reeher
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Name:
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Robyn A. Reeher
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Title:
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Vice President
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PNC BANK, NATIONAL ASSOCIATION,
as Purchaser Agent
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By:
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/s/ Robyn A. Reeher
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Name:
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Robyn A. Reeher
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Title:
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Vice President
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PNC BANK, NATIONAL ASSOCIATION,
as the LC Bank and as an LC Participant
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By:
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/s/ Joseph G. Moran
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Name:
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Joseph G. Moran
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Title:
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Senior Vice President
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MARKET STREET FUNDING LLC,
as a Related Committed Purchaser and as Conduit
Purchaser
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By:
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/s/ Doris J. Hearn
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Name:
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Doris J. Hearn
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Title:
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Vice President
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Second Amendment to A&R RPA (Cooper)
S-2
EXHIBIT A
ADDRESS FOR NOTICES
Cooper Tire & Rubber Company
701 Lima Avenue
Findlay, OH 45840
Attention: Bradley E. Hughes, Vice President and Chief Financial Officer
Telephone: (419) 424-4320
Facsimile: (419) 424-4212
Copy to:
James E. Kline, General Counsel
Cooper Tire & Rubber Company
701 Lima Avenue
Findlay, OH 45840
Telephone: (419) 427-4757
Facsimile: (419) 831-6876
Second Amendment to A&R RPA (Cooper)
S-3