EX-10.3



 





EXHIBIT 10.3




INTERCREDITOR AGREEMENT




     INTERCREDITOR AGREEMENT, dated as of November 9, 2007 (as modified, amended, restated or
supplemented from time to time, this “Agreement”), by and among PNC BANK, NATIONAL
ASSOCIATION, in its capacity as Administrator under the Receivables Purchase Agreement (as
hereinafter defined) (the “Administrator”), BANK OF AMERICA, N.A., in its capacity as
Administrative Agent (in such capacity, the “Administrative Agent”) and Collateral Agent
(in such capacity, the “Collateral Agent”, and together with the Administrative Agent, the
“Lender Agent”) under the Loan Agreement (as hereinafter defined), COOPER RECEIVABLES LLC
(the “Transferor”), and COOPER TIRE & RUBBER COMPANY (“Cooper Tire”).



WITNESSETH:




     WHEREAS, Cooper Tire has agreed to sell, contribute, transfer and assign to the Transferor,
and the Transferor has agreed to purchase or otherwise acquire from Cooper Tire, as Originator
under the Purchase and Sale Agreement (in such capacity, the “Originator”), all of the
right, title and interest of the Originator in the Receivables (as hereinafter defined) pursuant to
that certain Purchase and Sale Agreement dated as of August 30, 2006 (as amended, restated,
supplemented or otherwise modified from time to time, the “Purchase and Sale Agreement”);



     WHEREAS, the Transferor, as seller, Cooper Tire, in its capacity as Servicer, the Receivables
Purchasers (each as defined below), and the Administrator, in its capacities as LC Bank (as defined
in the Receivables Purchase Agreement), and as administrator for the Receivables Purchasers, are
parties to an Amended and Restated Receivables Purchase Agreement dated as of September 14, 2007
(as amended, restated, supplemented or otherwise modified from time to time, the “Receivables
Purchase Agreement”), pursuant to which, among other things, (i) the Receivables Purchasers
have agreed, among other things, to purchases from the Transferor from time to time undivided
percentage ownership interests in Receivables purchased by or contributed to the Transferor
pursuant to the Purchase and Sale Agreement and (ii) the Transferor has granted a lien on the
Receivables to the Administrator for the benefit of the Receivables Purchasers;



     WHEREAS, the Purchase and Sale Agreement and the Receivables Purchase Agreement provide for
the filing of UCC financing statements to perfect the ownership and security interest of the
parties thereto with respect to the property covered thereby;



     WHEREAS, Cooper Tire, as a borrower (in such capacity, the “Borrower”), Max-Trac Tire
Co., Inc., (“Max-Trac”), as a borrower, the Lender Agent, PNC, as syndication agent, Banc
of America Securities LLC and PNC Capital Markets LLC, as joint book managers and joint lead
arrangers, and the financial institutions from time to time party thereto as Lenders are parties to
a Loan and Security Agreement dated as of November 9, 2007 (as amended, restated, supplemented or
otherwise modified from time to time, the “Loan Agreement”; capitalized terms used but not
defined herein have the respective meanings ascribed to such terms in the Loan Agreement);



 









 





     WHEREAS, to secure Cooper Tire’s obligations to the Lenders and Lender Agent under the Loan
Agreement and other Loan Documents (as hereinafter defined), Cooper Tire has granted to the Lender
Agent for the benefit of the Lenders a lien over, among other things, inventory, certain accounts
receivable and certain general intangibles, including the Unsold Receivables (as hereinafter
defined), and all proceeds of the foregoing; and



     WHEREAS, the parties hereto wish to set forth certain agreements with respect to the
Receivables Assets (as hereinafter defined) and with respect to the Lender Collateral (as
hereinafter defined);



     NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants contained
herein, and for other good and valuable consideration, receipt of which is hereby acknowledged, it
is hereby agreed as follows:



ARTICLE 1.




DEFINITIONS.




     1.01. Certain Defined Terms. As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):



     “Bankruptcy Code” means the United States Bankruptcy Reform Act of 1978 (11 U.S.C. §
101, et seq.), as amended from time to time.



     “Borrower” is defined in the fourth Recital.



     “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City, New York, Pittsburgh, Pennsylvania, Chicago, Illinois, Wisconsin
or Charlotte, North Carolina are authorized or required by law to remain closed.



     “Claim” means the Lender Claim or the Receivables Claim, as applicable.



     “Collections” means, for any Receivable as of any date, (i) all amounts, whether in
the form of wire transfer, cash, checks, drafts, or other instruments, that are received (or deemed
received) by the Transferor, the Originator, Cooper Tire in its capacity as servicer or the
Administrator, in each case in payment of amounts owed in respect of such Receivable (including
purchase price, finance charges, interest and other charges), or applied to any amount owed by an
Obligor on account of such Receivable, including, without limitation, all amounts received on
account of such Receivable (including insurance payments and net proceeds of the sale or
disposition of repossessed goods or other collateral or property of an Obligor on account of such
Receivable) and all other fees and charges related thereto, (ii) cash proceeds of Returned Goods
with respect to such Receivable and (iii) all amounts paid by Cooper Tire in respect of such
Receivable pursuant to the Purchase and Sale Agreement and/or the Receivables Purchase Agreement,
in each case, whether received or paid on, before, or after the delivery of a Receivables
Termination Notice under Section 2.19 of this Agreement.



     “Commingled Property” is defined in Section 2.03(d).



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     “Contract” has the meaning ascribed to such term in the Receivables Purchase
Agreement.



     “Disposition” means, with respect to any assets of Cooper Tire, any liquidation of
Cooper Tire or its assets, the establishment of any receivership for Cooper Tire or its assets, the
appointment of an administrator, trustee, conservator or other custodian for Cooper Tire or any
part of its assets, a bankruptcy proceeding (or any other proceeding under insolvency, debtor
relief or debt adjustment laws) of Cooper Tire (either voluntary or involuntary), the payment of
any insurance, condemnation, confiscation, seizure or other claim upon any such assets or the
condemnation, confiscation, seizure, loss or destruction thereof, or damage to, or any other sale,
transfer, assignment or other disposition of such assets.



     “Enforcement” means collectively or individually, for (a) any of the Administrator or
the Receivables Purchasers to (i) declare a Facility Termination Date to have occurred under the
Receivables Documents by reason of an occurrence of a Termination Event thereunder (or any Facility
Termination Date shall have occurred automatically by reason of an occurrence of a Termination
Event thereunder) or (ii) commence the judicial or nonjudicial enforcement of any of the default
rights and remedies under the Receivables Documents and/or (b) any of the Lender Agent or the
Lenders during the continuance of a Lender Event of Default (i) to demand payment in full of or
accelerate the indebtedness of Cooper Tire owing to the Lenders and Lender Agent or (ii) to
commence the judicial or nonjudicial enforcement of any of the default rights and remedies under
the Loan Documents.



     “Enforcement Notice” means a written notice delivered in accordance with Section 2.05,
which notice shall (i) if delivered by the Administrator, state that a Facility Termination Date
has been declared or deemed declared by reason of an occurrence of a Termination Event and state
that an Enforcement Period has commenced and (ii) if delivered by the Lender Agent, state that a
Lender Event of Default has occurred and that the payment in full of the Lender Claim has been
demanded or the indebtedness of Cooper Tire to the Lenders has been accelerated or Lender Agent has
otherwise commenced the judicial or nonjudicial enforcement of any default rights and remedies
under the Loan Documents, and state that an Enforcement Period has commenced.



     “Enforcement Period” means the period of time following the receipt by either the
Lender Agent, on the one hand, or the Administrator, on the other, of an Enforcement Notice
delivered by the other until the earliest of the following: (i) the Receivables Claim has been
satisfied in full, none of the Receivables Purchasers have any further obligations under the
Receivables Documents and the Receivables Documents have been terminated; (ii) the Lender Claim has
been satisfied in full, the Lenders have no further obligations under the Loan Documents and the
Loan Documents have been terminated; and (iii) the parties hereto agree in writing to terminate the
Enforcement Period.



     “Facility Termination Date” has the meaning ascribed to such term in the Receivables
Purchase Agreement.



     “Inventory” has the meaning ascribed to such term in the UCC, including all goods
intended for sale, lease, display or demonstration; all work in process; and all raw materials, and
other materials and supplies of any kind that are or could be used in connection with the
manufacture, printing, packing, shipping, advertising, sale, lease or furnishing of such goods, or



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otherwise used or consumed in the Originator’s business (but excluding equipment (as such term
is defined in the UCC) and Returned Goods).



     “Lender Claim” means all of the indebtedness, obligations and other liabilities of
Cooper Tire and its subsidiaries now or hereafter arising under, or in connection with, the Loan
Documents including, but not limited to, all sums now or hereafter lent or advanced to or for the
benefit of Cooper Tire, all reimbursement obligations of Cooper Tire with respect to letters of
credit, any interest thereon (including, without limitation, interest accruing after the
commencement of a bankruptcy, insolvency or similar proceeding relating to Cooper Tire, whether or
not such interest is an allowed claim in any such proceeding), any reimbursement obligations, fees
or expenses due thereunder, any costs of collection or enforcement, and all other “Obligations”
under and as defined in the Loan Agreement.



     “Lender Collateral” means all property and interests in property, now owned or
hereafter acquired or created, of Cooper Tire in or upon which a Lender Interest is granted or
purported to be granted by Cooper Tire to the Lender Agent for the benefit of the Lenders under any
of the Loan Documents, and includes, without limitation,



     (a) all of the interests in property described in the first proviso of Section 2.01(a) hereof;



     (b) all Unsold Receivables;



     (c) all rights to, but not the obligations of, the Originator under all Related Security with
respect to any of the Unsold Receivables;



     (d) all monies due or to become due to the Originator with respect to any of the foregoing;



     (e) all books and records of the Originator to the extent related to any of the foregoing;



     (f) all Collections and other products and proceeds (as defined in the applicable UCC) of any
of the foregoing, including, without limitation, all funds which either are received by the
Originator in its individual capacity or as servicer or the Transferor from or on behalf of the
Obligors in payment of any amounts owed (including, without limitation, invoice price, finance
charges, interest and all other charges) in respect of any of the Unsold Receivables or are applied
to such amounts owed by the Obligors (including, without limitation, any insurance payments that
Cooper Tire, in its individual capacity or as servicer or the Transferor applies in the ordinary
course of its business to amounts owed in respect of any of the Unsold Receivables, and the net
proceeds of the sale or other disposition of repossessed goods or other collateral or property of
the Obligors in respect of any of the Unsold Receivables or any other parties directly or
indirectly liable for payment of such Unsold Receivables); and



     (g) all proceeds of the foregoing.



     In no event shall the Lender Collateral include any property released from the Lender Interest
pursuant to Section 2.01(a).



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     “Lender Deposit Account Control Agreement” means a “Deposit Account Control Agreement”
as such term is defined in the Loan Agreement.



     “Lender Event of Default” has the meaning ascribed to the term “Event of Default” in
the Loan Agreement.



     “Lender Interest” means, with respect to any property or interest in property, now
owned or hereafter acquired or created, of Cooper Tire, any lien, claim, encumbrance, security
interest or other interest of the Lender Agent or the Lenders in such property or interests in
property.



     “Lenders” means the “Lenders” and “Secured Parties” under and as defined in the Loan
Agreement, the Lender Agent, the Syndication Agent, the Joint Lead Arrangers and the Joint Book
Managers (each as defined in the Loan Agreement).



     “Loan Agreement” is defined in the fourth Recital.



     “Loan Documents” has the meaning ascribed to such term in the Loan Agreement.



     “Lock-Box Account” has the meaning ascribed to such term in the Receivables Purchase
Agreement.



     “Obligor” has the meaning ascribed to such term in the Receivables Purchase Agreement.



     “Originator” is defined in the first Recital.



     “Outstanding Balance” has the meaning ascribed to such term in the Receivables
Purchase Agreement.



     “Person” means any individual, partnership, corporation (including a business trust),
joint stock company, trust, unincorporated association, joint venture, limited liability company or
other entity or a governmental body or any political subdivision thereof.



     “Pledged Collateral” means (a) the Transferor Stock, (b) the Subordinated Note, (c)
all payments of principal and interest or dividends or other distributions on, and other rights to
payment under, any of the foregoing, and (d) all proceeds of any of the foregoing.



     “Proceeds” has the meaning ascribed to such term in the UCC.



     “Purchase and Sale Agreement” is defined in the first Recital.



     “Purchased Receivables” means now owned or hereafter existing Receivables sold,
transferred or contributed, or purported to be sold, transferred or contributed by the Originator
to the Transferor under the Purchase and Sale Agreement, but does not include any Receivable (or
interest therein or Receivables Assets related thereto) that is sold, transferred or contributed,
or purported to be sold, transferred or contributed, by the Originator to the Transferor after the
Sale Termination Date.



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     “Receivable” means any indebtedness and other obligations owed to the Originator or
the Transferor or any right of the Transferor or the Originator to payment from or on behalf of an
Obligor or any right to reimbursement for funds paid or advanced by the Transferor or the
Originator on behalf of an Obligor, whether constituting an account, chattel paper, payment
intangible, instrument or general intangible, however arising (whether or not earned by
performance), and includes, without limitation, the obligation to pay any finance charges, fees and
other charges with respect thereto.



     “Receivables Assets” means



     (a) each Purchased Receivable;



     (b) all rights to, but not the obligations of, the Originator under all Related Security with
respect to any of the foregoing Receivables;



     (c) all monies due or to become due to the Originator with respect to any of the foregoing;



     (d) all books and records of the Originator to the extent related to any of the foregoing;



     (e) all Collections and other products and proceeds (as defined in the applicable UCC) of any
of the foregoing, including, without limitation, all funds which either are received by the
Originator in its individual capacity or as servicer or the Transferor from or on behalf of the
Obligors in payment of any amounts owed (including, without limitation, invoice price, finance
charges, interest and all other charges) in respect of any of the above Receivables or are applied
to such amounts owed by the Obligors (including, without limitation, any insurance payments that
Cooper Tire, in its individual capacity or as servicer or the Transferor applies in the ordinary
course of its business to amounts owed in respect of any of the above Receivables, and the net
proceeds of the sale or other disposition of repossessed goods or other collateral or property of
the Obligors in respect of any of the above Receivables or any other parties directly or indirectly
liable for payment of such Receivables);



     (f) all right, title and interest (but not obligations) of the Transferor in and to each
lock-box account into which any Collections or other products or proceeds (as defined in the
applicable UCC) with respect to such Receivables may be deposited, and any related investment
property acquired with any such Collections or other products or proceeds (as such term is defined
in the applicable UCC);



     (g) all rights, powers and privileges (but not any obligations) of the Transferor under the
Purchase and Sale Agreement; and



     (h) all proceeds of the foregoing.



     “Receivables Claim” means all indebtedness, obligations (monetary or otherwise) and
other liabilities of the Originator to the Transferor and of the Originator and the Transferor to
the Receivables Purchasers and/or the Administrator now or hereafter arising under, or in
connection with, the Receivables Documents, including, but not limited to, all sums or increases
now or



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hereafter advanced or made to or for the benefit of the Transferor thereunder as the purchase
price paid for Purchased Receivables (or interests therein), all reimbursement obligations of the
Transferor with respect to letters of credit, any interest or yield thereon (including, without
limitation, interest or yield accruing after the commencement of a bankruptcy, insolvency or
similar proceeding relating to Cooper Tire or the Transferor, whether or not such interest or yield
is an allowed claim in any such proceeding), any repayment or reimbursement obligations, fees or
expenses due thereunder, and any costs of collection or enforcement.



     “Receivables Documents” means the Purchase and Sale Agreement, the Receivables
Purchase Agreement and any other agreements, instruments or documents (i) executed by the
Originator and delivered to the Transferor, the Administrator or the Receivables Purchasers or (ii)
executed by the Transferor and delivered to the Administrator or the Receivables Purchasers.



     “Receivables Interest” means, with respect to any property or interests in property,
now owned or hereafter acquired or created, of the Originator (regardless of whether sold or
contributed by the Originator to the Transferor), any lien, claim, encumbrance, security interest
or other interest of the Transferor and/or the Administrator or any Receivables Purchaser in such
property or interests in property.



     “Receivables Purchase Agreement” is defined in the second Recital.



     “Receivables Purchaser” means each Person from time to time party to the Receivables
Purchase Agreement in the capacity of a “Purchaser” or “Administrator” (each as defined in the
Receivables Purchase Agreement).



     “Receivables Termination Notice” means a written notice from the Lender Agent to the
Administrator stating that a Lender Event of Default has occurred and that the payment in full of
the Lender Claim has been demanded or the indebtedness of Cooper Tire to the Lenders has been
accelerated.



     “Records” means all Contracts and other documents, books, records and other
information (including computer programs, tapes, disks, data processing software and related
property and rights) maintained with respect to Receivables, the Obligors thereunder and the
Receivables Assets.



     “Related Security” means, with respect to any Receivable:



     (a) all of the Originator’s and the Transferor’s interest in any Returned Goods and
documentation of title evidencing the shipment or storage of any Returned Goods, the sale of which
gave rise to such Receivable,



     (b) all instruments and chattel paper that may evidence such Receivable,



     (c) all other security interests or liens and property subject thereto from time to time
purporting to secure payment of such Receivable, whether pursuant to the Contract related to such
Receivable or otherwise, together with all UCC financing statements or similar filings relating
thereto,



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     (d) solely to the extent applicable to such Receivable, all of the Originator’s and the
Transferor’s rights, interests and claims under the Contracts relating to such Receivable, and all
guaranties, indemnities, insurance and other agreements (including the related Contract) or
arrangements of whatever character from time to time supporting or securing payment of such
Receivable or otherwise relating to such Receivable, whether pursuant to the Contract related to
such Receivable or otherwise, and



     (e) all of the Originator’s and the Transferor’s rights, interests and claims under the
Purchase and Sale Agreement and the other Transaction Documents (as such term is defined in the
Receivables Purchase Agreement).



     “Returned Goods” means returned, repossessed or foreclosed goods and/or merchandise
the sale of which gave rise to a Receivable.



     “Sale Termination Date” means the earliest to occur of (a) the date the Facility
Termination Date occurs with respect to all Purchasers (as such term is defined in the Receivables
Purchase Agreement), (b) the date on which an Event of Bankruptcy occurs with respect to the
Originator and (c) the Business Day immediately following the date on which the Administrator
receives a Receivables Termination Notice; provided however, the occurrence of the
Sale Termination Date and the cessation of the sale and transfer of Receivables from the Originator
to the Transferor shall be subject to applicable bankruptcy laws and any orders of any bankruptcy
court.



     “Servicer” has the meaning ascribed to such term in the Receivables Purchase
Agreement.



     “Subordinated Note” means the “Company Note” as such term is defined in Section 3.1 of
the Purchase and Sale Agreement.



     “UCC” means the Uniform Commercial Code as in effect from time to time in the State of
New York.



     “Unsold Receivables” means any Receivables other than Purchased Receivables.



     “Termination Event” has the meaning ascribed to such term in the Receivables Purchase
Agreement.



     “Transferor Stock” means (a) all of the issued and outstanding membership interests of
the Transferor, (b) all additional membership interests of the Transferor issued from time to time,
(c) all options, warrants and other rights with respect to the foregoing and (d) all dividends and
other distributions on account of such membership interests.



     1.02. References to Terms Defined in the Receivables Documents and the Loan Documents.
Whenever in Section 1.01 a term is defined by reference to the meaning ascribed to such term in
any of the Receivables Documents or in any of the Loan Documents, then, unless otherwise specified
herein, such term shall have the meaning ascribed to such term in the Receivables Documents or Loan
Documents, respectively, as in existence on the date hereof, without giving effect to any
amendments of such term (or any amendment of terms used in such



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term) as may hereafter be agreed to by the parties to such documents, unless such amendments
have been consented to in writing by all of the parties hereto.



ARTICLE 2.




INTERCREDITOR PROVISIONS.




     2.01. Priorities with Respect to Receivables Assets.



     (a) Notwithstanding any provision of the UCC, any applicable law or decision or any of the
Loan Documents or the Receivables Documents, the Lender Agent (for itself and on behalf of each
Lender) hereby agrees that, at all times prior to the Sale Termination Date, upon the sale or other
transfer or any purported sale or transfer (including, without limitation, by way of capital
contribution) (to the extent recharacterized as a financing) of any Receivable (or interest
therein) by the Originator to the Transferor pursuant to the Purchase and Sale Agreement, any
Lender Interest of the Lenders or the Lender Agent in such Receivables and all Receivables Assets
with respect thereto shall automatically and without further action cease and be forever released
and discharged and the Lender Agent and the Lenders shall have no right, title or interest therein;
provided, however, that nothing in this Section 2.01 or in the definition of
“Receivables Assets” shall be deemed to constitute a release or subordination by the Lender Agent
or any of the Lenders of: (i) any Lender Interest in the proceeds received by Cooper Tire from the
Transferor for the sale of Receivables pursuant to the Purchase and Sale Agreement (including,
without limitation, cash payments made by the Transferor under the Subordinated Note (as the
outstanding principal balance under the Subordinated Note may increase or decrease from time to
time)); (ii) any Lender Interest or right of the Lender Agent or any of the Lenders in any
interests that Cooper Tire may acquire from the Transferor or the Administrator in Returned Goods
or that Cooper Tire has in Returned Goods; or (iii) any Lender Interest or right that any of the
Lenders or the Lender Agent has in any Unsold Receivables and the proceeds thereof, or (iv) any
Lender Interest or right that the Lender Agent or any of the Lenders has in any deposit or other
bank account subject to any Lender Deposit Account Control Agreement; provided
further, however, that any Lender Interest in such Returned Goods shall be junior
and subject and subordinate to the Receivables Interest therein unless and until each of Cooper
Tire and the Transferor shall have made all payments or adjustments required to be made by it under
the Receivables Documents on account of the reduction of the Outstanding Balance of any Purchased
Receivable related to such Returned Goods. If any goods or merchandise, the sale of which has given
rise to a Purchased Receivable, are returned to or repossessed by Cooper Tire, on behalf of the
Transferor, then, upon payment by Cooper Tire or the Transferor of all adjustments required on
account thereof under the Receivables Purchase Agreement, the Receivables Interest in such Returned
Goods shall automatically and without further action cease to exist and be released and
extinguished and such Returned Goods shall thereafter not constitute Receivables Assets for
purposes of this Agreement unless and until such Returned Goods have been resold so as to give rise
to a Receivable and such Receivable has been sold, contributed, or otherwise transferred to the
Transferor.



     (b) The Lender Agent further acknowledges and agrees that to the extent that, notwithstanding
Section 2.01(a) above, the Lender Agent or any Lenders are deemed to have any interest, claim or
benefit in or from the Receivables Assets whether by operation of law, legal



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process, pursuant to applicable provisions of the Bankruptcy Code or otherwise (including
without limitation by virtue of Section 1111(b) of the Bankruptcy Code or any successor provision
having similar effect under the Bankruptcy Code), then any such interest, claim or benefit in or
from the Receivables Assets is and shall be expressly subordinated to the indefeasible payment in
full of the Receivables Claim (whether or not any such claim is legally perfected or otherwise
entitled to a priority of distribution or application under applicable law, including the
Bankruptcy Code) including, without limitation, the payment of post-petition interest on such other
obligations and liabilities.



     2.02. Respective Interests in Lender Collateral; Transferor Distributions to
Originator.



          (a) Except for all rights to access to and use of Records granted to the Transferor, the
Administrator, and the Receivables Purchasers pursuant to the Receivables Documents and except for
the Receivables Interest of the Administrator (for the benefit of the Receivables Purchasers) in
Returned Goods, which interest is senior in all respects to any Lender Interest therein subject to
Section 2.01(a), each of the Transferor and the Administrator (for itself and on behalf of each
Receivables Purchaser) agrees that it does not have and shall not have any Receivables Interest in
the Lender Collateral, and that it consents to the creation, attachment, perfection, and continued
existence of the Lender Interest in the Lender Collateral and the filing of UCC financing
statements in favor of the Lender Agent covering Lender Collateral but excluding any Receivables
Assets. Notwithstanding any provision of the UCC, any applicable law or decision or any of the
Loan Documents or the Receivables Documents, the Transferor, the Administrator and the Receivables
Purchasers hereby agree that, at all times on and after the Sale Termination Date, upon the sale or
other transfer or any purported sale or transfer (including, without limitation, by way of capital
contribution) (to the extent recharacterized as a financing) of any Receivable (or interest
therein) on or after the Sale Termination Date by the Originator to the Transferor, any Receivables
Interest in such Receivables and all Lender Collateral with respect thereto shall automatically and
without further action cease and be forever released and discharged and the Administrator and the
Receivables Purchasers shall have no right, title or interest therein.




          (b) Each of the Transferor and the Administrator (for itself and on behalf of each Receivables
Purchaser) acknowledges and agrees that to the extent that, notwithstanding Section 2.02(a) above,
the Transferor, the Administrator or any Receivables Purchaser is deemed to have any interest,
claim or benefit in or from the Lender Collateral whether by operation of law, legal process,
pursuant to applicable provisions of the Bankruptcy Code or otherwise (including without limitation
by virtue of Section 1111(b) of the Bankruptcy Code or any successor provision having similar
effect under the Bankruptcy Code), then any such interest, claim or benefit in or from the Lender
Collateral is and shall be expressly subordinated to the indefeasible payment in full of the Lender
Claim (whether or not any such claim is legally perfected or otherwise entitled to a priority of
distribution or application under applicable law, including the Bankruptcy Code) including, without
limitation, the payment of post-petition interest on such other obligations and liabilities.




          (c) Transferor shall distribute all payments made by Transferor to Originator in accordance
with the Purchase and Sale Agreement into a bank account of Originator that is subject to a Lender
Deposit Account Control Agreement.





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     2.03. Distribution of Proceeds. At all times, all proceeds of Lender Collateral and
Receivables Assets shall be distributed in accordance with the following procedure:



          (a) (i) Subject to the subordination provisions of Section 2.01(a), all proceeds of the Lender
Collateral shall be paid to the Lender Agent for application on the Lender Claim and other
obligations and liabilities owing under the Loan Agreement and other Loan Documents until the
Lender Claim and such other obligations and liabilities have been paid and satisfied in full in
cash and the Loan Agreement is terminated; and (ii) any remaining proceeds shall be paid to Cooper
Tire or as otherwise required by applicable law, and the Transferor and the Administrator (for
itself and on behalf of each Receivables Purchaser) agrees that none of the Transferor, the
Administrator or the Receivables Purchasers have, nor shall they have, any Receivables Interest in
such remaining proceeds. The foregoing shall not, however, impair any claim or any right or remedy
that the Transferor, the Administrator or the Receivables Purchasers may have against Cooper Tire
under the Receivables Documents or otherwise.




          (b) Subject to the subordination provisions of Section 2.02(a), all proceeds of the
Receivables Assets shall be paid to the Administrator for application against the Receivables Claim
in accordance with the Receivables Documents until the Receivables Claim has been paid and
satisfied in full in cash and the Receivables Documents have terminated; and (ii) subject to
Section 2.01 hereof, any remaining proceeds shall be paid to the Transferor or as otherwise
required by applicable law. The Lender Agent (for itself and on behalf of each Lender) agrees that,
except as set forth in Section 2.01 hereof, neither the Lender Agent nor the Lenders have, nor
shall they have, any Lender Interest in such remaining proceeds. The foregoing shall not, however,
impair any claim or any right or remedy that the Lender Agent or the Lenders may have against
Cooper Tire under the Loan Documents or otherwise.




          (c) The Administrator agrees that, to the extent collections with respect to any Lender
Collateral are on deposit in any Lock-Box Account, each of the Administrator and the Servicer shall
use its commercially reasonable efforts to identify such collections, and when so identified, will
cause such collections to be paid to an account of the Originator controlled by the Lender Agent so
long as the forwarding of such collections would not violate any law, governmental rule, regulation
or court order. The Lender Agent agrees that, to the extent collections of the Receivables Assets
are on deposit in an account controlled by the Lender Agent, each of the Lender Agent and any
applicable servicer under the Loan Documents will use its commercially reasonable efforts to
identify such collections, and when so identified, cause such collections to be paid to the
Lock-Box Account identified by the Administrator so long as the forwarding of such collections
would not violate any law, governmental rule, regulation or court order.




          (d) If any Inventory of Cooper Tire has been commingled with Returned Goods in which the
Receivables Interest continues as provided in Section 2.01(a) above (such Returned Goods and
commingled Inventory, to the extent consisting of the same type and quality as such Returned Goods,
collectively, the “Commingled Property”), and the Lender Agent or any Lender receives any proceeds
on account of such Commingled Property (whether by reason of sale or by reason of insurance
payments on account thereof) prior to release of the Receivables Interest in the Returned Goods
included in such Commingled Property, then: (i) all proceeds of such Commingled Property shall be
paid to the Lender Agent, and the Lender Agent shall,



11









 






immediately upon receipt of such proceeds, pay to the Administrator for application against
the Receivables Claim a share of such proceeds equal to the dollar amount of such proceeds
multiplied by a fraction, the numerator of which equals the book value of such commingled Returned
Goods and the denominator of which equals the book value of all of such Commingled Property; and
(ii) any remaining proceeds shall be paid to the Lender Agent for application against the Lender
Claim.




     2.04. Unsold Receivables.



          (a) The Transferor and the Administrator (for itself and on behalf of each Receivables
Purchaser) hereby acknowledge that the Lender Agent on behalf of the Lenders and itself shall be
entitled to Collections of Unsold Receivables.




          (b) The Lender Agent agrees that it shall not exercise any rights it may have under the Loan
Documents to send any notices to Obligors informing them of the Lenders’ interest (if any) in the
Receivables or directing such Obligors to make payments in any particular manner of any amounts due
under the Receivables prior to the later of payment in full of the Receivables Claim and the
termination of the Receivables Documents, except that from and after the earlier of (i) the date
that is 45 days after the Sale Termination Date and (ii) the first date on which the Receivables
Claim is less than $5,000,000, the Lender Agent may inform any Obligors of Unsold Receivables that
such Unsold Receivables have been assigned to the Lender Agent and direct them as to where and how
to make payments on account of Unsold Receivables.




          (c) Cooper Tire shall maintain a system of accounting that enables it to determine, for all
Collections, the identity of the Receivables to which such Collections relate, including, without
limitation, whether such Receivables are Purchased Receivables or Unsold Receivables. All of the
parties hereto agree to cooperate with one another in good faith in making such determinations. In
the event that Collections are received after the Sale Termination Date and the Receivable to which
such Collections relate cannot be determined with reasonable certainty by the parties hereto after
commercially reasonable inquiry, such Collections shall, for purposes of this Agreement, be applied
first to the Receivables owed by such Obligor that have not been written off in accordance with
GAAP in chronological order beginning with the oldest such Receivable, and then to the Receivables
owed by such Obligor that have been written off in accordance with GAAP in chronological order
beginning with the oldest such Receivable. In the event that Collections are received after the
Sale Termination Date and the Obligor from whom such Collections were received cannot be determined
with reasonable certainty by the parties hereto after commercially reasonable inquiry, such
Collections shall, for purposes of this Agreement, be applied (to the extent that the parties
hereto are entitled under applicable law to retain such Collections) first to the Receivables Claim
and the Lender Claim on a pro rata basis, and second to the Transferor. Once identified, all
proceeds of Unsold Receivables shall be transferred from the applicable Lock-Box Account to such
other deposit accounts as the Lender Agent may specify from time to time.




     2.05. Enforcement Actions. Each of the Lender Agent and the Administrator agrees to
use reasonable efforts to give an Enforcement Notice to the other prior to commencement of
Enforcement (but failure to do so shall not prevent such Person from commencing Enforcement or



12









 




affect its rights hereunder nor create any cause of action or liability against such Person).
Subject to the foregoing, each of the parties hereto agrees that during an Enforcement Period:




          (a) Subject to any applicable restrictions in the Receivables Documents, the Administrator may
at its option and without the prior consent of the other parties hereto, take any action to (i)
accelerate payment of the Receivables Claim or any other obligations and liabilities under any of
the Receivables Documents and (ii) liquidate the Receivables Assets or foreclose or realize upon or
enforce any of its rights with respect to the Receivables Assets; provided,
however, that the Administrator shall not take any action to foreclose or realize upon or
to enforce any rights it may have with respect to any Receivables Assets constituting Returned
Goods that have been commingled with the Lender Collateral without the prior written consent of the
Lender Agent unless the Lender Agent has provided a written notice to the Administrator stating
that the Loan Documents have been terminated and all monetary obligations under the Loan Documents
have been satisfied in full.




          (b) Subject to any applicable restrictions in the Loan Documents, the Lender Agent or the
Lenders may, at their option and without the prior consent of the other parties hereto, take any
action to accelerate payment of the Lender Claim or any other obligation or liability arising under
any of the Loan Documents, foreclose or realize upon or enforce any of their rights with respect to
the Lender Collateral, including, except as otherwise provided in Section 2.03(d), with respect to
any Receivables Assets constituting Returned Goods that have been commingled with the Lender
Collateral, and take any other actions as they deem appropriate; provided, however,
that the Lender Agent shall not otherwise take any action to foreclose or realize upon or to
enforce any rights that either of them may have with respect to uncommingled Returned Goods without
the Administrator’s prior written consent unless the Administrator has provided a written notice to
the Lender Agent stating that the Receivables Documents have been terminated and all monetary
obligations under the Receivables Documents have been satisfied in full.




          (c) If Returned Goods are commingled with Inventory, the parties agree to cooperate in the
disposition of Commingled Property and the application of the proceeds thereof as provided in
Section 2.03(d).




     2.06. Access to Records. (a) Subject to any applicable restrictions in the
Receivables Documents (but without limiting any rights under the Receivables Documents), each of
the Receivables Purchasers and the Administrator may enter one or more premises of Cooper Tire, the
Transferor or their respective affiliates, whether leased or owned, at any time during reasonable
business hours, without force or process of law and without obligation to pay rent or compensation
to Cooper Tire, the Transferor, such affiliates, the Lenders or the Lender Agent, whether before,
during or after an Enforcement Period, and may have access to and use of all Records located
thereon and may have access to and use of any other property to which such access and use are
granted under the Receivables Documents, in each case provided that such use is for the purpose of
enforcing or exercising the Administrator’s and/or the Receivables Purchasers’ rights with respect
to the Receivables Assets.



     (b) Subject to any contractual restrictions regarding confidentiality, (i) each of the
Receivables Purchasers and the Administrator agrees to provide Lender Agent with access to and use
of all Records in its possession; provided such access and use is for the purpose of
enforcing



13









 




or exercising the Lender Agent’s and Lenders’ rights with respect to the Lender Collateral and
(ii) each of the Lender Agent and the Lenders agrees to provide the Administrator with access to
and use of all books and records related to the Lender Collateral in its possession;
provided such access and use is for the purpose of enforcing or exercising the
Administrator’s and the Receivables Purchasers’ rights with respect to the Receivables Assets.




     2.07. Accountings. Cooper Tire agrees to render statements to the Administrator upon
request, which statements shall identify in reasonable detail the Unsold Receivables, the Returned
Goods and the Receivables to which the Returned Goods may relate. The Lender Agent agrees to
inform the Administrator, upon reasonable request, as to the Lender Agent’s then current estimate
of the outstanding amount of the Lender Claim, giving effect to the application of proceeds of
Lender Collateral as hereinbefore provided. Cooper Tire agrees to render statements to the Lender
Agent upon the request of the Lender Agent, which statements shall identify in reasonable detail
the Purchased Receivables and shall render an account of the Receivables Claim, giving effect to
the application of proceeds of Receivables Assets and Lender Collateral as hereinbefore provided;
provided that the Administrator agrees to inform the Lender Agent as to the Administrator’s
then current estimate of the outstanding amount of the Receivables Claim upon the reasonable
request of the Lender Agent from and after the date (if any) on which Cooper Tire has ceased to be
the Servicer under the Receivables Purchase Agreement. The Administrator agrees to provide written
notice to the Lender Agent, upon reasonable request, as to the outstanding amount of the
Receivables Interest of the Administrator (for the benefit of the Receivables Purchasers) in
Returned Goods, subject to receipt by the Administrator of a statement from Cooper Tire identifying
such Returned Goods. Cooper Tire and the Transferor hereby authorize the Lender Agent and the
Administrator to provide the statements described in this section. None of the Lender Agent, Cooper
Tire or the Administrator shall bear any liability if their respective accounts are incorrect.



     2.08. Agency for Perfection. The Administrator and the Lender Agent hereby appoint
each other as agent for purposes of perfecting by possession their respective security interests
and ownership interests and liens on the Lender Collateral and Receivables Assets, as applicable,
described hereunder. In the event that the Administrator obtains possession of any item that it
believes with reasonable certainty to be part of the Lender Collateral, the Administrator shall
notify the Lender Agent of such fact, shall hold such Lender Collateral and shall deliver such
Lender Collateral to the Lender Agent upon request. In the event that the Lender Agent obtains
possession of any item that it believes with reasonable certainty to be part of the Receivables
Assets, the Lender Agent shall notify the Administrator of such fact, shall hold such Receivables
Assets and shall deliver such Receivables Assets to the Administrator upon request. The
Administrator shall notify the Lender Agent with reasonable promptness whenever the Receivables
Documents are amended to expand the scope of the property owned by or owed to the Receivables
Purchasers thereunder; provided, however, that no such amendment shall be deemed to
affect the meaning of terms defined in this Agreement unless the parties hereto consent in writing
in accordance with Section 1.02 of this Agreement. The Lender Agent shall notify the Administrator
with reasonable promptness whenever the Loan Documents are amended to expand the scope of the
collateral securing the obligations thereunder; provided, however, that no such
amendment shall be deemed to affect the meaning of terms defined in this Agreement unless the
parties hereto consent in writing in accordance with Section 1.02 of this Agreement. No party to
this Agreement shall be



14









 




liable under this Agreement to any other party to this Agreement by reason of its having, in
good faith, relinquished possession of Lender Collateral or Receivables Assets.




     2.09. UCC Notices. In the event that any party hereto shall be required by the UCC or
any other applicable law to give notice to the other of intended disposition of Receivables Assets
or Lender Collateral, respectively, such notice shall be given in accordance with Section 3.01
hereof and ten (10) days’ notice shall be deemed to be commercially reasonable.



     2.10. Independent Credit Investigations. Neither the Receivables Purchasers, the
Administrator, the Lender Agent nor the Lenders, nor any of their respective directors, officers,
agents or employees, shall be responsible to the other or to any other Person for the solvency,
financial condition or ability of Cooper Tire or the Transferor to repay the Receivables Claim or
the Lender Claim, or for the worth of the Receivables Assets or the Lender Collateral, or for
statements of Cooper Tire or the Transferor, oral or written, or for the validity, sufficiency or
enforceability of the Receivables Claim, the Lender Claim, the Receivables Documents, the Loan
Documents, the Administrator’s or any Receivables Purchaser’s interest in the Receivables Assets or
the Lenders’ or the Lender Agent’s interest in the Lender Collateral. The Lenders and the
Receivables Purchasers have entered into their respective agreements with Cooper Tire or the
Transferor, as applicable, based upon their own independent investigations. None of the Lender
Agent, the Lenders, the Administrator or the Receivables Purchasers makes any warranty or
representation to the other nor does it rely upon any representation of the other with respect to
matters identified or referred to in this Section 2.10.



     2.11. Limitation on Liability of Parties to Each Other. Except with respect to
liability for breach of express obligations under this Agreement, no party shall have any liability
to any other party except for liability arising from the gross negligence or willful misconduct of
such party or its representatives as determined by a court of competent jurisdiction. No fiduciary
duties on the part of the Administrator or the Lender Agent are intended to be created under this
Agreement, notwithstanding the use of the terms “agent” or “agency.” Each of the Administrator, on
the one hand, and the Lender Agent, on the other hand, are independent contractors with respect to
the other and neither of them shall be regarded as the agent, trustee or other fiduciary of the
other by virtue of this Agreement. The obligations and rights under this Agreement of each of the
Administrator and the Lender Agent apply to each such party solely in its capacity as Administrator
and Lender Agent, and not in any other capacity.



     2.12. Amendments to Loan Arrangements or to this Agreement. Each party hereto shall,
upon reasonable request of any other party hereto, provide copies of all modifications or
amendments and copies of all other documentation relevant to the Receivables Assets or the Lender
Collateral. All modifications or amendments of this Agreement must be in writing and duly executed
by an authorized officer of each party hereto to be binding and enforceable.



     2.13. Marshalling of Assets. Nothing in this Agreement will be deemed to require
either the Administrator or the Lender Agent (i) to proceed against certain property securing the
Lender Claim (or any other obligation or liability under the Loan Agreement or any other Loan
Document) or the Receivables Claim (or any other obligation or liability under any other
Receivables Document), as applicable, prior to proceeding against other property securing such
Claim or obligations or liabilities or against certain persons guaranteeing any such obligations or



15









 




(ii) to marshal the Lender Collateral (or any other collateral) or the Receivables Assets (as
applicable) upon the enforcement of the Lender Agent’s or the Administrator’s remedies under the
Loan Documents or Receivables Documents, as applicable.




     2.14. Relative Rights.



          (a) The relative rights of the Lenders, each as against the other, shall be determined by
agreement among such parties in accordance with the terms of the Loan Documents. The Administrator
and the Receivables Purchasers shall be entitled to rely on the power and authority of the Lender
Agent to act on behalf of all of the Lenders to the extent that the provisions of this Agreement
have the Lender Agent so act.




          (b) The Lender Agent and the Lenders shall be entitled to rely on the power and authority of
the Administrator to act on behalf of the Receivables Purchasers to the extent that the provisions
of this Agreement have the Administrator so act.




     2.15. Effect Upon Loan Documents and Receivables Documents. By executing this
Agreement, Cooper Tire and the Transferor agree to be bound by the provisions hereof (i) as they
relate to the relative rights of the Lenders and the Lender Agent with respect to the property of
Cooper Tire, and (ii) as they relate to the relative rights of Cooper Tire, the Transferor, the
Receivables Purchasers and/or the Administrator as creditors of (or purchasers from) Cooper Tire or
the Transferor, as the case may be. Cooper Tire acknowledges that the provisions of this Agreement
shall not give it any substantive rights as against the Lender Agent or the Lenders and that
nothing in this Agreement shall (except as expressly provided herein) amend, modify, change or
supersede the terms of the Loan Documents as among Cooper Tire, the Lender Agent and the Lenders.
The Transferor and Cooper Tire acknowledge that the provisions of this Agreement shall not give the
Transferor or Cooper Tire any substantive rights as against the Administrator or the Receivables
Purchasers and that nothing in this Agreement shall (except as expressly provided herein) amend,
modify, change or supersede the terms of the Receivables Documents as among the Transferor, Cooper
Tire, the Administrator and the Receivables Purchasers. Cooper Tire and the Transferor further
acknowledge that the provisions of this Agreement shall not give either such party any substantive
rights as against the other and that nothing in this Agreement shall amend, modify, change or
supersede the terms of the Receivables Documents as between Cooper Tire and the Transferor.
Notwithstanding the foregoing, each of the Administrator (for itself and on behalf of each
Receivables Purchaser), and the Lender Agent (for itself and on behalf of each Lender) agrees,
that, as between themselves, to the extent that the terms and provisions of the other Loan
Documents or the Receivables Documents are inconsistent with the terms and provisions of this
Agreement, the terms and provisions of this Agreement shall control.



     2.16. Nature of the Lender Claim and Modification of Loan Documents. Each of the
Transferor and the Administrator (for itself and on behalf of each Receivables Purchaser)
acknowledge that the Lender Claim and other obligations and liabilities owing under the Loan
Documents are, in part, revolving in nature and that the amount of such revolving indebtedness that
may be outstanding at any time or from time to time may be increased or reduced and subsequently
reborrowed. Except as expressly set forth herein, the terms of the Loan Documents may be modified,
extended or amended from time to time, and the amount thereof may be



16









 




increased or reduced, all without notice to or consent by any of the Transferor, the
Administrator or the Receivables Purchasers and without affecting the provisions of this Agreement;
provided that nothing in this Section 2.16 (including, without limitation, the next
succeeding sentence) shall be construed to relieve Cooper Tire or the Transferor of its obligation
to comply with the covenants under the Receivables Purchase Agreement and the Purchase and Sale
Agreement. Without in any way limiting the foregoing, each of the Transferor and the Administrator
(for itself and on behalf of each Receivables Purchaser) hereby agrees that the maximum amount of
the Lender Claim and other obligations and liabilities owing under the Loan Documents may be
increased at any time and from time to time to any amount.




     2.17. Nature of the Receivables Claim and Modification of Receivables Documents.
Cooper Tire and the Lender Agent (for itself and on behalf of each Lender) acknowledges that the
Receivables Claim and other obligations and liabilities owing under the Receivables Documents are,
in part, revolving in nature and that the amount of such revolving obligations that may be
outstanding at any time or from time to time may be increased or reduced and subsequently
reincurred. Except as expressly set forth herein, the terms of the Receivables Documents may be
modified, extended or amended from time to time, and the amount thereof may be increased or
reduced, all without notice to or consent by any of Cooper Tire, the Lenders or the Lender Agent
and without affecting the provisions of this Agreement; provided that nothing in this
Section 2.17 (including, without limitation, the next succeeding sentence) shall be construed to
relieve Cooper Tire of its obligation to comply with the covenants under the Loan Agreement.
Without in any way limiting the foregoing, each of Cooper Tire and the Lender Agent (for itself and
on behalf of each Lender) hereby agrees that the maximum amount of the Receivables Claim and other
obligations and liabilities owing under the Receivables Documents and the amount of Receivables
that may be purchased or otherwise financed pursuant to the Receivables Documents may, in each
case, be increased at any time and from time to time to any amount.



     2.18. Further Assurances. Each of the parties agrees to take such actions as may be
reasonably requested by any other party, whether before, during or after an Enforcement Period, in
order to effect the rules of distribution and allocation set forth above in this Article 2 and
otherwise to effectuate the agreements made in this Article; provided that any such actions
shall not violate any law, governmental rule, regulation or court order.



     2.19. Termination and Cessation of Transfer of Receivables. From and after the Sale
Termination Date, Cooper Tire shall terminate and cease all transfers of Receivables to the
Transferor. Subject to applicable bankruptcy law, nothing contained in this Section shall affect
the rights of the Transferor, Administrator or Receivables Purchasers with respect to Receivables
Assets transferred prior to the Sale Termination Date; provided, however, that such
termination and cessation shall be subject to applicable bankruptcy laws and any orders of any
bankruptcy court. Subject to the foregoing proviso, the parties hereto acknowledge and agree that,
notwithstanding anything to the contrary in the Receivables Purchase Agreement or the Purchase and
Sale Agreement, delivery of a Receivables Termination Notice hereunder shall constitute a Facility
Termination Date under (and as defined in) the Receivables Purchase Agreement and a Purchase and
Sale Termination Event under (and as defined in) the Purchase and Sale Agreement. Neither the
Lender Agent nor Required Lenders shall deliver a Receivables Termination Notice



17









 




on any date during the continuance of any Lender Event of Default if on such date the total
utilization of the Revolver Commitment under (and as defined in) the Loan Agreement is zero.




     2.20. No Petition; Subordinated Note; Stock. The Lender Agent (for itself and on
behalf of each Lender) hereby agrees, notwithstanding any provision of the Loan Documents, that



          (a) in connection with its rights as pledgee of the Subordinated Note and the Transferor
Stock, (i) it will comply with the subordination provisions of the Subordinated Note and (ii) it
will not (A) unless and until it has delivered a Receivables Termination Notice, assume ownership
of the Subordinated Note or the Transferor Stock, (B) exercise any voting rights under the
Transferor Stock, (C) institute, or cause or require the Originator to institute, any action or
suit or exercise, or cause or require the Originator to exercise, any rights or remedies of the
Originator upon or with respect to any breach or default by the Transferor under any Subordinated
Note or by the Transferor or any other Person under any of the Receivables Documents, or (D)
exercise any other remedies on default by Cooper Tire under the Loan Documents with respect to the
Pledged Collateral or any other rights or interests of the Originator under the Receivables
Documents, in each case until receiving notice from the Administrator that all Receivables Claims
have been paid in full and the obligations of the Originator and the Transferor under the
Receivables Purchase Agreement and the other Receivables Documents have been terminated;
provided, however, that, to the extent provided in the Loan Documents or under
applicable law, the Lender Agent may take, or require Cooper Tire to take, reasonable actions to
assure the validity, perfection and priority of the Lender Agent’s security interest in the Pledged
Collateral and proceeds thereof;




          (b) prior to the date that is one year and one day after the date upon which the Receivables
Claim is paid in full, it will not institute against, or join any other Person in instituting
against, the Transferor any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding or other similar proceeding under any bankruptcy or similar law of the United States or
any state of the United States;




          (c) it shall not contest or challenge, or join any other Person in contesting or challenging,
the transfers of Receivables Assets from the Originator to the Transferor (except to the extent in
violation of the terms of this Agreement), whether on the grounds that such transfers were
disguised financings, preferential transfers, fraudulent conveyances or otherwise or a transfer
other than a “true sale” or a “true contribution.” Without limiting the foregoing, it shall not
contest or challenge, or join any other Person in contesting or challenging, the validity,
enforceability, priority or perfection of the interest of the Transferor in any of the Receivables
Assets, or the validity, enforceability, priority or perfection of the interest of any assignee of
the Transferor (including any Receivables Purchaser) in any of the Receivables Assets. In
addition, it shall not (x) assert that any Person and the Transferor should be substantively
consolidated or that the Transferor is not or was not a limited liability company separate and
distinct from the Originator or any other Person, or (y) challenge the valuation of any Receivables
Assets which any Receivables Purchaser, any assignee of such Receivables Purchaser or the
Administrator may elect to liquidate as permitted under the Receivables Documents, or otherwise
assert that any such liquidation was illegal, not done in a commercially reasonable manner, or
otherwise invalid or improper; and




18









 








          (d) neither the Administrator nor any Receivables Purchaser has a fiduciary duty to any Lender
based on the pledge of the Subordinated Note or Transferor Stock.




ARTICLE 3.




MISCELLANEOUS.




     3.01. Notices. All notices and other communications provided for hereunder shall,
unless otherwise stated herein, be in writing (including by facsimile copy) and delivered by hand
or overnight courier service, mailed by certified or registered mail or sent by telecopy or
facsimile as to each party hereto, at its address set forth under its name on Schedule 3.01 hereto
or at such other address as shall be designated by such party in a written notice to the other
parties hereto. All such notices and communications shall be effective upon receipt or, in the case
of notice by telex, when telexed against receipt of the answerback, or in the case of notice by
facsimile copy, when verbal confirmation of receipt is obtained, in each case addressed as
aforesaid.



     3.02. Agreement Absolute. This Agreement may not be modified or amended, except in
accordance with Section 2.12. This Agreement shall be applicable both before and after the filing
of any petition under the Bankruptcy Code by or against Cooper Tire or the Transferor and all
references herein to Cooper Tire or the Transferor shall be deemed to apply to a
debtor-in-possession for such party and all allocations of payments between the Lenders and the
Receivables Purchasers shall, subject to any court order to the contrary, continue to be made after
the filing of such petition on the same basis that the payments were to be applied prior to the
date of the petition.



     3.03. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and assigns. The successors
and assigns for Cooper Tire and the Transferor shall include a debtor-in-possession or trustee of
or for such party. The successors and assigns for the Lenders, the Receivables Purchasers, the
Lender Agent and the Administrator, as the case may be, shall include any successor Lenders,
Receivables Purchasers, Lender Agent and Administrator, as the case may be, appointed under the
terms of the Loan Documents or the Receivables Documents, as applicable. Each of the Lender Agent
(for itself and on behalf of each Lender) and the Administrator (for itself and on behalf of each
Receivables Purchaser), as the case may be, agrees not to transfer any interest it may have in, to
or under the Loan Documents, the Receivables Documents, the Lender Collateral, the Receivables
Assets, the Lender Claim or the Receivables Claim unless such transferee has been notified of the
existence of this Agreement and has agreed to be bound hereby. Any reference in this Agreement to
the Lender Agent shall include each successor Lender Agent that may be appointed from time to time
pursuant to the Loan Agreement, and each such successor Lender Agent shall automatically and
without further action become, and be deemed to have become, a party hereto by its acceptance of
its appointment as a successor Lender Agent.



     3.04. Beneficiaries. The terms and provisions of this Agreement shall be for the sole
benefit of the parties hereto, the Lenders and the Receivables Purchasers and their respective
successors and assigns, and no other Person shall have any right, benefit or priority by reason of
this Agreement.



19









 





     3.05. GOVERNING LAW. (A) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO ANY OTHERWISE APPLICABLE
CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK).



     (B) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS
OF NEW YORK COUNTY, NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK; AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE PARTIES
HERETO IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, THAT IT MAY NOW
OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF
THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH OF THE PARTIES HERETO WAIVES PERSONAL SERVICE
OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH SERVICE MAY BE MADE BY ANY OTHER MEANS PERMITTED
BY NEW YORK LAW.



     3.06. Section Titles. The article and section headings contained in this Agreement
are and shall be without substantive meaning or content of any kind whatsoever and are not a part
of the agreement among the parties hereto.



     3.07. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof or
thereof or affecting the validity or enforceability of such provision in any other jurisdiction.



     3.08. 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 when taken together shall constitute
one and the same agreement.



* * * * *





20











 





     IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective
officers thereunto duly authorized, as of the date first written above.



	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION,

as Administrator

 	 
	 	By:  	/s/ William
P. Falcon	 
	 	 	Name:  	William
P. Falcon 	 
	 	 	Title:  	Vice
President 	 
	 
	 	BANK OF AMERICA, N.A.,

as Lender Agent

 	 
	 	By:  	/s/ Thomas
H. Herron	 
	 	 	Name:  	Thomas
H. Herron 	 
	 	 	Title:  	Senior
Vice President 	 




	 	 	 
	 
	 	S-1	Intercreditor Agreement













 






	 	 	 	 	 



	 	 	 	 	 
	 	COOPER RECEIVABLES LLC,

as Transferor

 	 
	 	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 Originator, as Servicer and as Borrower

 	 
	 	By:  	/s/ Charles
F. Nagy	 
	 	 	Name:  	Charles
F. Nagy 	 
	 	 	Title:  	Assistant
Treasurer 	 
	 
	 	 	 
	 	By:  	/s/ Philip
G. Weaver	 
	 	 	Name:  	Philip
G. Weaver 	 
	 	 	Title:  	Vice
President & CFO	 


	 	 	 
	 
	 	S-2	Intercreditor Agreement