EXHIBIT 10.23
CONTRIBUTION AGREEMENT
HUNTSMAN INTERNATIONAL LLC,
as Contributor and Originator
and
HUNTSMAN RECEIVABLES FINANCE LLC,
as the Company
Dated as of December 20, 2000
TABLE OF CONTENTS
Page
1. DEFINITIONS..................................................................... 2
1.01 Defined Terms............................................................. 2
1.02 Other Definitional Provisions............................................. 2
2. CONTRIBUTION OF RECEIVABLES..................................................... 2
2.01 Contribution of Receivables............................................... 2
2.02 Contribution Value........................................................ 6
2.03 [intentionally omitted]................................................... 6
2.04 No Repurchase............................................................. 6
2.05 Rebates, Adjustments, Returns, Reductions and Modifications............... 7
2.06 Payments in Respect of Ineligible Receivables and Originator
Indemnification Payments.................................................. 7
2.07 Certain Charges........................................................... 9
2.08 Certain Allocations....................................................... 9
2.09 Collection Accounts and Master Collection Accounts........................ 9
3. CONDITIONS TO CONTRIBUTIONS..................................................... 9
3.01 Conditions Precedent to the Initial Contribution.......................... 9
3.02 Conditions Precedent to all Contributions of Receivables.................. 12
3.03 Conditions Precedent to the Contributor's Obligations on the Initial
Contribution Date and each Contribution Date thereafter................... 13
4. REPRESENTATIONS AND WARRANTIES.................................................. 13
4.01 Representations and Warranties of the Contributor......................... 13
4.02 Representations and Warranties of the Contributor Relating to the
Receivables............................................................... 18
4.03 Representations and Warranties of the Company............................. 20
5. AFFIRMATIVE COVENANTS........................................................... 21
5.01 Financial Statements, Reports, etc........................................ 21
5.02 Compliance with Law and Policies.......................................... 22
5.03 Preservation of Company Existence......................................... 22
5.04 Separate Company Existence................................................ 22
5.05 Inspection of Property; Books and Records; Discussions.................... 23
5.06 Location of Records....................................................... 23
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TABLE OF CONTENTS
(continued)
Page
5.07 Computer Files and other Documents........................................ 24
5.08 Obligations............................................................... 24
5.09 Collections............................................................... 24
5.10 Furnishing Copies, Etc.................................................... 24
5.11 Responsibilities of the Contributor as Local Servicer..................... 25
5.12 Assessments............................................................... 25
5.13 Purchase of Receivables................................................... 25
5.14 Notices................................................................... 25
5.15 Bankruptcy................................................................ 25
5.16 /Further Action........................................................... 26
5.17 Marking of Records........................................................ 26
5.18 Stamp Duty................................................................ 27
5.19 Enforcement of Agreements................................................. 28
6. NEGATIVE COVENANTS.............................................................. 28
6.01 Limitations on Transfers of Receivables, Etc.............................. 28
6.02 Extension or Amendment of Receivables..................................... 28
6.03 Change in Payment Instructions to Obligors................................ 29
6.04 Change in Name............................................................ 29
6.05 Policies.................................................................. 29
6.06 Modification of Legend.................................................... 29
6.07 Accounting for Contributions.............................................. 29
6.08 Instruments............................................................... 29
6.09 Ineligible Receivables.................................................... 29
6.10 Business of the Contributor............................................... 30
6.11 Limitation on Fundamental Changes......................................... 30
6.12 Offices................................................................... 30
6.13 Constitutive Documents.................................................... 31
6.14 Amendment of Transaction Documents or Other Material
Documents................................................................. 31
6.15 Additional Equity......................................................... 31
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TABLE OF CONTENTS
(continued)
Page
6.16 Receivables Purchase Agreements........................................... 31
7. TERMINATION EVENTS.............................................................. 31
7.01 Originator Termination Events............................................. 31
7.02 Program Termination Events................................................ 32
7.03 Remedies.................................................................. 33
8. MISCELLANEOUS................................................................... 35
8.01 Payments.................................................................. 35
8.02 Costs and Expenses........................................................ 35
8.03 Successors and Assigns.................................................... 35
8.06 Governing Law............................................................. 36
8.07 No Waiver; Cumulative Remedies............................................ 36
8.08 Amendments and Waivers.................................................... 36
8.09 Severability.............................................................. 36
8.10 Notices................................................................... 36
8.11 Counterparts.............................................................. 37
8.12 Submission to Jurisdiction; Service of Process............................ 38
8.13 No Bankruptcy Petition.................................................... 38
8.14 Termination............................................................... 39
8.15 Responsible Officer Certificates; No Recourse............................. 39
8.16 Confidential Information.................................................. 39
SCHEDULES
Schedule 1 Form of Daily Report
Schedule 2 Form of Monthly Settlement Report
Schedule 3 Identification of (A) Collection Accounts and (B) Master
Collection Accounts
Schedule 4 Form of Solvency Certificate
Schedule 5 Location of Books and Records
Schedule 6 Chief Executive Office
Schedule 7 Legal and Other Business Names
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CONTRIBUTION AGREEMENT dated as of December 20, 2000 (this
"Agreement"), between Huntsman International LLC, a limited liability company
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organized under the laws of the State of Delaware, as contributor (the
"Contributor") and Huntsman Receivables Finance LLC, a limited liability company
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organized under the laws of the State of Delaware, as the Company (the
"Company").
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W I T N E S S E T H:
WHEREAS, the parties are entering into this Agreement under which the
Contributor may, with effect from a time chosen by the Contributor transfer,
contribute, convey and assign all of its right, title and interest in, to and
under all Receivables originated by the Contributor, existing and hereafter
arising from time to time and all other Receivable Assets related to such
Receivables to the Company as a capital contribution to the Company;
WHEREAS, the Contributor may purchase additional Receivables and all
other Receivable Assets related to such Receivables pursuant to certain
Receivables Purchase Agreements between the Contributor and one or more
Originators, and, if it purchases the same, may contribute such purchased
Receivables, together with Receivables originated by the Contributor, to the
Company;
WHEREAS, Huntsman (Europe) BVBA, as the Master Servicer (the "Master
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Servicer"), the Company, Huntsman International LLC, as Servicer Guarantor (the
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"Servicer Guarantor"), and Chase Manhattan Bank (Ireland) plc, not in its
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individual capacity but solely as trustee, as Trustee (the "Trustee"), have
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entered into a Pooling Agreement dated as of the date hereof (such agreement, as
it may be amended, modified or otherwise supplemented from time to time
hereafter, being the "Pooling Agreement") in order to create a master trust into
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which the Company desires to grant to the Trustee on behalf of the Trust (as
defined therein) a Participation in and to all proceeds of, or payments in
respect of, the Receivables and a security interest in relation to all of its
right, title and interest in, to and under the Receivables and certain other
assets now or hereafter owned by the Company in consideration for which the
Trustee will make certain payments to the Company as specified therein; and
WHEREAS, the Master Servicer, the Company, the Servicer Guarantor, the
Liquidation Servicer, the Local Servicers and the Trustee have entered into a
Servicing Agreement dated as of the date hereof (such agreement, as it may be
amended, modified or otherwise supplemented from time to time hereafter, being
the "Servicing Agreement") pursuant to which the Master Servicer will agree to
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service and administer or cause to be serviced or administered the Receivables
on behalf of the Company.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
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1. DEFINITIONS
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1.01 Defined Terms. Capitalized terms used herein shall, unless otherwise
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defined or referenced herein, have the meanings assigned to such terms in Annex
X attached to the Pooling Agreement which Annex X is incorporated by reference
herein.
1.02 Other Definitional Provisions.
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(a) The words "hereof", "herein", "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and article,
section, subsection, schedule and exhibit references are to this Agreement
unless otherwise specified.
(b) As used herein and in any certificate or other document made
or delivered pursuant hereto, accounting terms relating to the Contributor and
the Company, unless otherwise defined or incorporated by reference herein, shall
have the respective meanings given to them under GAAP.
(c) The meanings given to terms defined or incorporated by
reference herein shall be equally applicable to both the singular and plural
forms of such terms.
(d) Any reference herein to a Schedule or Exhibit to this
Agreement shall be deemed to be a reference to such Schedule or Exhibit as it
may be amended, modified or supplemented from time to time to the extent that
such Schedule or Exhibit may be amended, modified or supplemented (or any term
or provision of any Transaction Document may be amended that would have the
effect of amending, modifying or supplementing information contained in such
Schedule or Exhibit) in compliance with the terms of the Transaction Documents.
(e) Any reference in this Agreement to any representation,
warranty or covenant "deemed" to have been made is intended to encompass only
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representations, warranties or covenants that are expressly stated to be
repeated on or as of dates following the execution and delivery of this
Agreement, and no such reference shall be interpreted as a reference to any
implicit, inferred, tacit or otherwise unexpressed representation, warranty or
covenant.
(f) The words "include", "includes" or "including" shall be
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interpreted as if followed, in each case, by the phrase "without limitation".
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(g) Any reference herein to a provision of the Bankruptcy Code,
Code, ERISA, 1940 Act or the UCC shall be deemed a reference to any successor
provision thereto.
2. CONTRIBUTION OF RECEIVABLES
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2.01 Contribution of Receivables.
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(a) On the Execution Date, the Contributor shall pay to the
Company U.S. $100.00 in consideration for the option to exercise its rights
under this Agreement, which option shall, if not exercised, expire 30 days after
the Execution Date. The Contributor may exercise its rights hereunder, subject
to the terms and conditions of this Agreement, by paying an additional U.S.
$100.00 to the Company on the Closing Date or any day thereafter (the date on
which such additional US $100 is paid being the "Initial Contribution Date"). On
the Initial Contribution Date and on any Business Day thereafter, the
Contributor shall contribute, transfer, assign, and convey, without recourse
(except as expressly provided herein), to the Company as a capital contribution
to the Company (which the Company shall accept), all of its present and future
right, title and interest in, to and under:
(i) all Eligible Receivables originated by the
Contributor from time to time prior to but not including the date
on which an Early Program Termination occurs, or an Early
Originator Termination occurs with respect to the Contributor,
pursuant to and as indicated in the Originator Daily Report
(substantially in the form of Schedule 1 to this Agreement) and
transmitted to the Master Servicer and included in the Daily
Report generated by the Master Servicer and transmitted in
accordance with the Transaction Documents electronically, or if
electronic means are not immediately available, by telecopier, on
the applicable date of contribution, (any such date a
"Contribution Date") in which event such electronic copy to be
provided as soon as possible thereafter;
(ii) all Eligible Receivables purchased by the Contributor
from an Originator on the Contribution Date pursuant to the terms
of an Origination Agreement from time to time prior to but not
including the date on which an Early Originator Termination
occurs pursuant to the related Origination Agreement, or an Early
Program Termination occurs, and as indicated, for purposes of the
relevant Receivables Purchase Agreement, in the Originator Daily
Report prepared and/or transmitted in accordance with the terms
of the relevant Receivables Purchase Agreement;
(iii) the Related Property;
(iv) all collections in respect of the Receivables;
(v) all rights (including rescission, replevin or
reclamation) of the Contributor relating to any Receivable or
arising therefrom; and
(vi) all rights of the Contributor under each of the
Receivables Purchase Agreements including, in respect of each
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such agreement, (A) all rights of the Contributor to receive
monies due and to become due under or pursuant to such agreement,
whether payable as fees, expenses, costs or otherwise, (B) all
rights of the Contributor to receive proceeds of any insurance,
indemnity, warranty or guaranty with respect to such agreement,
(C) claims of the Contributor for damages arising out of or for
breach of or default under such agreement, (D) the right of the
Contributor to amend, waive or terminate such agreement, to
perform thereunder and to compel performance and otherwise
exercise all remedies thereunder and (E) all other rights,
remedies, powers, privileges and claims of the Contributor under
or in connection with such agreement (whether arising pursuant to
such agreement or otherwise available to the Contributor at law
or in equity), including the rights of the Contributor to enforce
such agreement and to give or withhold any and all consents,
requests, notices, directions, approvals, extensions or waivers
under or in connection therewith; and
(vii) all proceeds of or payments in respect of any and all
of the foregoing clauses (i) through (iv) (including
Collections).
Such property described in the foregoing clauses (i) through (vii)
shall be referred to collectively herein as the "Receivable Assets" and shall be
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considered to be assets that have been contributed, transferred, assigned, set
over and otherwise conveyed by the Contributor to the Company immediately upon
completion of the purchase of any Receivables referred to in Section 2.01(a)
(ii) above, in accordance with the terms of any Origination Agreement, and in
relation to those Receivables referred to in Section 2.01(a)(i) above, upon
delivery to the Company of a Daily Report substantially in the form set forth in
Schedule 1 to this Agreement.
(b) The Contributor and the Company hereby acknowledge and agree
that it is their mutual intent that (a) every transfer by way of capital
contribution of Receivable Assets to the Company hereunder shall be an absolute,
unconditional, "true" conveyance and not a mere granting of a security interest
to secure a loan to or from the Company, (b) the Contributor shall not retain
any interest in the Receivable Assets after the contribution thereof hereunder,
(c) the Receivables originated, or purchased from an Originator, by the
Contributor shall not be part of the Contributor's insolvency or bankruptcy
estate in the event an insolvency or delinquency proceeding or a bankruptcy
petition or other action shall be commenced or filed by or against the
Contributor under any insolvency or bankruptcy law and (d) the Receivables
originated by any Originator shall not be part of such Originator's insolvency
or bankruptcy estate in the event an insolvency or delinquency proceeding or a
bankruptcy or other action shall be commenced or filed by or against such
Originator under any insolvency or bankruptcy law. In the event, however, that
notwithstanding such intent and agreement, such transfers are deemed by any
relevant Governmental Authority for any reason whatsoever, whether for limited
purposes or otherwise, to be a security interest granted to secure
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indebtedness of the Contributor, the Contributor shall be deemed to have granted
to the Company a perfected first priority security interest under Article 9 of
the UCC in the applicable jurisdiction in all of its right, title and interest
in, to and under, in each case, whether now owned or existing, or hereafter
acquired or arising, and wherever located, the Receivables originated or
purchased by the Contributor and the other Receivable Assets related to such
Receivables and this Agreement shall constitute a security agreement under
applicable law, securing the repayment of the amounts paid hereunder, subject to
the other terms and conditions of this Agreement, together with such other
obligations or interests as may arise hereunder in favor of the parties hereto.
(c) In connection with any transfer, assignment, conveyance and
contribution pursuant to subsection 2.01(a), the Contributor hereby agrees to
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record and file, or cause to be recorded and filed, at its own expense,
financing statements or other similar filings (and continuation statements with
respect to such financing statements or other similar filings when applicable),
(i) with respect to the Receivables and (ii) with respect to any other
Receivable Assets for which an assignment or the creation of a security interest
(as defined in the applicable UCC or other similar applicable laws, legislation
or statute) may be perfected under the applicable UCC or other applicable laws,
legislation or statute by such filing, in each case meeting the requirements of
applicable law in such manner and in such jurisdictions as are necessary to
perfect and maintain the perfection of the transfer, assignment, conveyance and
contribution of such Receivables and any other Receivable Assets related to such
Receivables to the Company, and to deliver to the Company (a) on or prior to the
Initial Contribution Date (but after the Execution Date) a photocopy, certified
by a Responsible Officer of the Contributor to be a true and correct copy, of
each such financing statement or other filing to be made on or prior to the
Initial Contribution Date and (b) within ten (10) days after the Initial
Contribution Date a file-stamped copy or certified statement of such financing
statement (or the similar filing) or other evidence of such filing.
(d) In connection with the transfer, assignment, conveyance and
contribution pursuant to subsection 2.01(a), the Contributor agrees at its own
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expense, with respect to the Receivables, that it will or will cause, as agent
of the Company, (A) (i) on the Initial Contribution Date and thereafter, direct
(or cause the Master Servicer to direct) each Originator to identify on its
extraction records relating to Receivables from its master database of
receivables, that the Receivables and all other Receivable Assets related
thereto have been transferred, assigned, conveyed and contributed to the Company
in accordance with this Agreement and (ii) acknowledge, deliver or transmit or
cause to be delivered or transmitted to the Master Servicer a Daily Report
containing at least the information specified in Schedule 1 hereto as to all
such Receivables, as of the applicable date of contribution and (B) use its
reasonable best efforts to cause the applicable Originator of the Receivables
purchased by the Contributor to (i) on the Initial Contribution Date and
thereafter to identify on its extraction records relating to Receivables from
its master database of receivables, that all such Receivables and all other
Receivable Assets related thereto have been transferred, assigned, conveyed and
contributed to the Company in accordance with this Agreement and (ii) (except in
the
5
case of the UK Originators) acknowledge, deliver or transmit or cause to be
delivered or transmitted to the Master Servicer, as agent of HICI, an Originator
Daily Report containing at least the information specified in Schedule 1 hereto
as to all such Receivables, as of the applicable date of contribution;
notwithstanding anything expressed to the contrary either in this Section
2.01(d) or in any other provision of this Agreement or of any other Transaction
Document, the UK Originator Daily Report delivered to the Master Servicer in
accordance with Section 2.01 of the UK Receivables Purchase Agreement and
Section 4.01 of the Servicing Agreement, shall not be delivered to the Company
or the Trustee by either the Contributor or any UK Originator or any other
person. The copy of the Daily Report delivered to the Trustee pursuant to this
subsection 2.01(d) shall be signed by the Master Servicer. For the avoidance of
doubt, the delivery of the signed Daily Report to the Trustee shall not be a
prerequisite to the contribution, transfer, assignment and conveyance of the
Receivables from the Contributor to the Company.
(e) All contributions of Receivables by the Contributor
hereunder shall be without recourse to, or any representation or warranty of any
kind (express or implied) by, the Contributor except as otherwise specifically
provided herein. The foregoing contribution, assignment, transfer and conveyance
does not constitute and is not intended to result in the creation or assumption
by the Company of any obligation of the Contributor or any other person in
connection with the Receivables or any agreement or instrument relating thereto,
including any obligation to any Obligor.
2.02 Contribution Value. The contribution value (the "Contribution Value")
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for the Receivables and the other Receivable Assets related to such Receivables
contributed, transferred, assigned and conveyed to the Company pursuant to
subsection 2.01(a) hereof shall be deemed to be the product of (a) the aggregate
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outstanding Principal Amount of such Receivables as set forth in the applicable
Originator Daily Report identifying such Receivables and (b) one (1) minus the
Discounted Percentage applicable to contributions by the Contributor to the
Company. The Company shall calculate the Contribution Value on each Contribution
Date, and in the absence of manifest error such amount shall be deemed to be
conclusive. The Company shall maintain in its books and records a ledger
entitled the "distributable assets ledger." For each contribution, transfer,
assignment and conveyance pursuant to subsection 2.01(a) hereof, the Company
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shall credit to the distributable assets ledger an amount equal to the
Contribution Value of the Receivables and other Receivable Assets contributed,
transferred, assigned and conveyed by the Contributor on the related
Contribution Date (net of the deductions referred to in Section 2.02(b), Section
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2.06(a) or Section 2.06(b)).
2.03 [intentionally omitted].
2.04 No Repurchase. Subject to Section 2.06, the Contributor shall not
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have any right or obligation under this Agreement, by implication or otherwise,
to repurchase from the Company any Receivables or other Receivable Assets
related to such Receivables or to rescind or otherwise retroactively effect any
purchase of any such Receivables or other Receivable Assets related to such
Receivables after the date of
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contribution relating thereto; provided that the foregoing shall not be
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interpreted to limit the right of the Company to receive a Contributor Dilution
Adjustment Payment, a Contributor Adjustment Payment or a Contributor
Indemnification Payment.
2.05 Rebates, Adjustments, Returns, Reductions and Modifications. From time
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to time the Contributor may make a Dilution Adjustment to a Receivable in
accordance with this Section 2.05 and Section 6.02; provided that if the
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Contributor or any Originator cancels an invoice related to such Receivable,
either (i) such invoice must be replaced, or caused to be replaced, by the
Contributor with an invoice relating to the same transaction of equal or greater
Principal Amount on the same Business Day that such cancellation was made, (ii)
such invoice must be replaced, or caused to be replaced, by the Contributor with
an invoice relating to the same transaction of a lesser Principal Amount on the
same Business Day that such cancellation was made and the Contributor must make
a Contributor Dilution Adjustment Payment, to the Company Concentration Account,
in an amount equal to the difference between such cancelled and replacement
invoices or (iii) the Contributor must make a Contributor Dilution Adjustment
Payment, to the relevant Company Receipts Account in an amount equal to the full
value of such cancelled invoice pursuant to this Section 2.05. To the extent
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that the Receivable under this Section 2.05 is generated by any Originator other
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than the Contributor, the Contributor shall request payment from such Originator
of the Dilution Adjustment amount with respect to such Receivable and shall pay
the amount received in respect thereof to the Company. The Contributor agrees to
pay to the Company, on the Contribution Date immediately succeeding the date any
Dilution Adjustment is granted or made pursuant hereto, the amount of any such
Dilution Adjustment (a "Contributor Dilution Adjustment Payment"); provided,
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however, that if the Company elects to reduce its Exchangeable Company Interest
in the Trust as a result of such Dilution Adjustment, then the Company shall
debit from the Company's distributable assets ledger an amount equal to such
Dilution Adjustment in lieu of such cash payment. The amount of any Dilution
Adjustment shall be set forth on the first Daily Report prepared after the date
on which such Dilution Adjustment was granted or made.
2.06 Payments in Respect of Ineligible Receivables and Originator
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Indemnification Payments.
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(a) Adjustment Payment Obligation. In the event of a breach of
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any of the representations and warranties contained in Sections 4.02(a),
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4.02(b), 4.02(c), 4.02(d) or 4.02(f) in respect of any Receivable contributed
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hereunder or if the Company's interest in any Receivable is not a full legal and
beneficial ownership, the Contributor shall, within 30 days of the earlier of
its knowledge or receipt of written notice of such breach or defect from the
Company, remedy the matter giving rise to such breach of representation or
warranty if such matter is capable of being remedied. If such matter is not
capable of being remedied or is not so remedied within said period of 30 days,
the Contributor upon request of the Company shall repurchase the relevant
Receivable from the Company at a repurchase price (without duplication of any
Contributor Dilution Adjustment Payments made pursuant to Section 2.05 hereof),
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equal to the original Principal Amount of such Receivable less Collections
received by the
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Company in respect of such Receivable (the "Contributor Adjustment Payment"),
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which payment shall be in the same currency as such Receivable. Upon the payment
of a Contributor Adjustment Payment hereunder, the Company shall automatically
agree to pay to the Contributor all Collections received subsequent to such
repurchase with respect to such repurchased Receivable. The parties agree that
if there is a breach of any of the representations and warranties of a
Contributor contained in Section 4.02(a), 4.02(b) or 4.02(c) in respect of or
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concerning any Receivable, the Contributor's obligation to pay the Contributor
Adjustment Payment under this Section 2.06 is a reasonable pre-estimate of loss
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and not a penalty (and neither the Company nor any other person or entity having
an interest in this Agreement through the Company shall be entitled to any other
remedies as a consequence of any such breach).
(b) Special Indemnification. In addition to its obligations
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under Section 8.02 hereunder, the Contributor agrees to pay, indemnify and hold
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harmless (without duplication of any Contributor Dilution Adjustment Payments
made pursuant to Section 2.05 hereof) the Company from any loss, liability,
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expense, damage or injury which may at any time be imposed on, incurred by or
asserted against the Company in any way relating to or arising out of (i) any
Receivable becoming subject to any defense, dispute, offset or counterclaim of
any kind (other than as expressly permitted by this Agreement or the Pooling
Agreement or any Supplement) or (ii) the Contributor breaching any covenant
contained herein with respect to any Receivable (each of the foregoing events or
circumstances being an "Contributor Indemnification Event"), and such Receivable
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(or a portion thereof) ceasing to be an Eligible Receivable on the date on which
such Contributor Indemnification Event occurs. The amount of such
indemnification shall be equal to the original Principal Amount of such
Receivable less Collections received by the Company in respect of such
Receivable (the "Contributor Indemnification Payment"). Such payment shall be
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made on or prior to the 10th Business Day after the day the Company requests
such payment or the Contributor obtains knowledge thereof unless such
Contributor Indemnification Event shall have been cured on or before such 10th
Business Day; provided, however, that in the event that (x) an Originator
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Termination Event with respect to the Contributor has occurred and is continuing
or (y) the Company shall be required to make a payment with respect to such
Receivable pursuant to Section 2.05 of the Pooling Agreement and the Company has
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insufficient funds to make such a payment, the Contributor shall make such
payment immediately. The Company shall have no further remedy against the
Contributor in respect of such a Contributor Indemnification Event unless the
Contributor fails to make a Contributor Indemnification Payment on or prior to
such 10th Business Day or on such earlier day in accordance with the proviso set
forth in this subsection 2.06(b). Upon receiving a Contributor Indemnification
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Payment, the Company shall automatically agree to pay to the Contributor all
Collections received subsequent to such payment with respect to the Receivable
in respect of which a Contributor Indemnification Payment is made.
(c) The Contributor shall from time to time on demand pay to the
Company an amount equal to the amount (if any) of funds required to be paid or
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deposited by the Company in respect of Stamp Duty pursuant to Sections 2.07(q)
through 2.07(t) of the Pooling Agreement.
2.07 Certain Charges. The Contributor and the Company hereby agree that
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late charge revenue, reversals of discounts, other fees and charges and other
similar items, whenever created, accrued in respect of Receivables shall be the
property of the Company notwithstanding the occurrence of an Early Originator
Termination or Early Program Termination and all collections with respect
thereto shall continue to be allocated and treated as collections in respect of
the Receivables transferred, conveyed, assigned and contributed to the Company
pursuant to subsection 2.01(a) hereof.
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2.08 Certain Allocations. The Contributor, as Local Servicer, hereby
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agrees that if the Contributor can attribute a Collection to a specific Obligor
and a specific Receivable, then such Collection shall be applied to pay such
Receivable of such Obligor; provided, however, that if the Contributor cannot
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attribute a Collection to a specific Receivable, then such Collection shall be
applied to pay the Receivables of such Obligor in the order of maturity of such
Receivables, beginning with the Receivable that has been outstanding the longest
and ending with the Receivable that has been outstanding the shortest.
2.09 Collection Accounts and Master Collection Accounts. The Company shall
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establish and maintain accounts in its name, subject to the security interest of
the Trustee, into which Obligors will be instructed to make payments in
accordance with Section 5.09 of this Agreement (collectively, the "Collection
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Accounts"), such accounts to be established for each Originator pursuant to the
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terms and conditions of the relevant Collection Account Agreement, including
U.S. Dollar, Pound Sterling and Euro accounts (collectively, the "Master
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Collection Accounts"), into which Collections deposited into the Collection
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Accounts for the European Originators will be transferred on a daily basis in
accordance with the provisions of the Collection Account Agreements, which
accounts are set forth in Schedule 3 attached hereto. The Collection Accounts
and Master Collection Accounts as of the Effective Date are set forth in
Schedule 3 hereof. The Company shall update such Schedule and send copies to
the Trustee and Funding Agent at any time on or after which accounts are deleted
or added.
3. CONDITIONS TO CONTRIBUTIONS
---------------------------
3.01 Conditions Precedent to the Initial Contribution. The Contributor
------------------------------------------------
shall not be entitled to make the contribution to the Company and the Company
shall not be obliged to accept such Initial Contribution unless the following
conditions precedent have been satisfied on or prior to the Initial Contribution
Date:
(a) the Company shall have received copies of duly adopted
resolutions (or, if applicable, a unanimous consent) of the Board of Directors
of the Contributor, as in effect on such Effective Date, authorizing the
execution of this Agreement and the consummation of the Transactions pursuant to
the Transaction Documents;
9
(b) the Company shall have received copies of a Certificate of
Good Standing for the Contributor issued by the Secretary of State of Delaware;
(c) the Company shall have received copies of a certificate of a
Responsible Officer of the Contributor certifying (i) the names and signatures
of the officers or any managers (in the case of a limited liability company)
authorized on its behalf to execute this Agreement and the other Transaction
Documents to which it is a party and any other documents to be delivered by it
hereunder or thereunder, (ii) that attached thereto is a true, correct, and
complete copy of the Contributor's certificate of formation and Limited
Liability Company Agreement, (iii) that attached thereto is a true correct and
complete copy of the document referred to in clause (a) above and (iv) that
attached thereto is a true, correct and complete copy of the document referred
to in clause (b) above;
(d) the Company shall have received copies of fully executed
counterparts of this Agreement, the Pooling Agreement, the Servicing Agreement,
the Series 2000-1 Supplement, the U.S. Receivables Purchase Agreement, the U.K.
Receivables Purchase Agreement and the Dutch Receivables Purchase Agreement and
the Investor Certificates;
(e) the Company shall have received copies of legal opinions,
in each case, dated the Effective Date and addressed to:
(i) the Rating Agencies, the Funding Agent, the Company
and the Trustee from Stoel Rives LLP, special Utah counsel for
Huntsman International, in form and substance satisfactory to the
Trustee and the Funding Agent;
(ii) the Rating Agencies, the Funding Agent, the Company
and the Trustee from Counsel to each Originator in form and
substance satisfactory to the Trustee and the Funding Agent;
(iii) the Rating Agencies, the Funding Agent, the Company
and the Trustee from ▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special
New York counsel for the Contributor and the Company, in form and
substance satisfactory to the Trustee and the Funding Agent; and
(iv) the Rating Agencies, the Funding Agent, the Company
and the Trustee from ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, as to certain
Delaware limited liability company matters for the Company and
Huntsman International, in form and substance satisfactory to the
Trustee and the Funding Agent;
(f) the Company shall have received a legal opinion, dated the
Effective Date and addressed to the Trustee, the Funding Agent, the Rating
Agencies, and
10
the Company from ▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special New York counsel
for the Contributor and the Company, in form and substance satisfactory to the
Trustee and the Funding Agent, opining that, as a result of the transactions
contemplated by this Agreement, (i) a bankruptcy court would not hold that the
contributed Receivables and/or Receivable Assets would be the property of the
relevant Contributor's or Originator's bankruptcy estate under Section 541 of
the Bankruptcy Code and (ii) a bankruptcy court would hold that in the event of
the commencement of a case under the Bankruptcy Code by or against the
Contributor, upon the insolvency of the Contributor, the Company would not be
consolidated with the Contributor;
(g) the Company shall have received, to the extent in writing,
the Policies of the Contributor and each Originator;
(h) the Company shall have received copies of proper financing
statements (Form UCC-1), which will be filed on or prior to the Initial
Contribution Date, naming the Contributor and each Originator as the debtor in
favor of, in each case, the Company as the secured party or other similar
instruments or documents as may be necessary or in the reasonable opinion of the
Company desirable under the UCC of all appropriate jurisdictions to perfect the
Company's ownership interest in any and all Receivables and other Receivable
Assets contributed hereunder;
(i) the Company shall have received certified copies of requests
for information or copies (or a similar search report certified by parties
acceptable to the Trustee and the Funding Agent) dated a date reasonably near
the Effective Date listing all effective financing statements or charges which
name the Contributor (under its present name and any previous name) as debtor
and which are filed in jurisdictions in which the filings were made pursuant to
clause (h) above, together with copies of such financing statements (none of
which shall cover any Receivables or Receivable Assets);
(j) the Company shall have received a solvency certificate
delivered by the Contributor with respect to the Contributor's solvency in the
form of Schedule 4 hereto;
(k) the Company shall have received the most recent audited
consolidated financial statements of Huntsman International and its consolidated
Subsidiaries;
(l) the Company shall be satisfied that the Contributor's and
any Originator's systems, procedures and record keeping relating to the
Receivables are sufficient and satisfactory in order to permit the contribution,
assignment, transfer and conveyance of such Receivables and the administration
of such Receivables in accordance with the terms and intent of this Agreement;
11
(m) the Company shall have received a solvency certificate
delivered by each Originator with respect to each Originator's solvency in the
form of Schedule 4 hereto;
(n) the Company shall have received a document signed by an
Affiliate of the Company containing statements substantially in the form
contemplated in Part VII of the U.K. Tax Opinion relating to ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Income and Corporation Taxes ▇▇▇ ▇▇▇▇, Section 132
Finance ▇▇▇ ▇▇▇▇ and Schedule 28 Finance ▇▇▇ ▇▇▇▇;
(o) the Company shall have received such other approvals,
opinions or documents as the Company may reasonably request; and
(p) if applicable, all applicable conditions precedent to the
sale of such Receivables from the related Originator to the Contributor
contained in the related Receivables Purchase Agreement shall have been
satisfied.
3.02 Conditions Precedent to all Contributions of Receivables. The
--------------------------------------------------------
obligation of the Company to accept a contribution of Receivables and other
Receivable Assets on each Contribution Date (including the Initial Contribution
Date) is subject to the satisfaction of the following conditions precedent,
that, on and as of the related Contribution Date, the following statements shall
be true (and the delivery by or on behalf of the Contributor of the Originator
Daily Report for such Receivables on such Contribution Date shall constitute a
representation and warranty by the Contributor that on such Contribution Date
the statements in clauses (a) and (b) below are true):
(a) the representations and warranties of the Contributor
contained in Sections 4.01 shall be true and correct on and as of such
-------------
Contribution Date as though made on and as of such date, except insofar as such
representations and warranties are expressly made only as of another date (in
which case they shall be true and correct as of such other date);
(b) after giving effect to such contribution, no Originator
Termination Event or Potential Originator Termination Event with respect to the
Contributor or any Originator of Receivables shall have occurred and be
continuing;
(c) after giving effect to such contribution, no Early
Amortization Event or Potential Early Amortization Event with respect to any
Outstanding Series shall have occurred and be continuing;
(d) since the Effective Date, no material adverse change has
occurred in the overall rate of collection of the Receivables;
(e) the Company shall have received such other approvals,
opinions or documents as the Company may reasonably request; and
12
(f) if applicable, all conditions precedent to the sale of such
Receivables from the related Originator to the Contributor contained in the
related Receivables Purchase Agreement shall have been satisfied; provided,
--------
however, that the failure of the Contributor to satisfy any of the foregoing
-------
conditions shall not prevent the Contributor from subsequently contributing
Receivables originated by it, or purchased by it pursuant to a Receivables
Purchase Agreement, upon satisfaction of all such conditions.
3.03 Conditions Precedent to the Contributor's Obligations on the Initial
--------------------------------------------------------------------
Contribution Date and each Contribution Date thereafter. The obligations of the
-------------------------------------------------------
Contributor on the Initial Contribution Date and each Contribution Date
thereafter shall be subject to the conditions precedent, which may be waived by
the Contributor, that the Contributor shall have received on or before the
Initial Contribution Date (with respect to the initial contribution hereunder)
and for subsequent contributions, the relevant Contribution Date, the following,
each in form and substance satisfactory to the Contributor:
(a) a Certificate of Good Standing for the Company issued by the
Secretary of State of Delaware, and certificates of qualification as a foreign
limited liability company issued by the Secretaries of State or other similar
officials of each jurisdiction where such qualification is material to the
transactions contemplated by this Agreement and the other Transaction Documents;
and
(b) a certificate of a Responsible Officer of the Company
certifying (i) the names and signatures of the managers authorized on its behalf
to execute this Agreement and the other Transaction Documents to which it is a
party and any other documents to be delivered by it hereunder or thereunder,
(ii) that attached thereto is a true, correct and complete copy of the Company's
Certificate of Formation and Limited Liability Company Agreement, and (iii) that
attached thereto is a true correct and complete copy of duly adopted resolutions
of the Shareholders of the Company, authorizing the execution of this Agreement
and the consummation of the Transactions pursuant to the Transaction Documents.
4. REPRESENTATIONS AND WARRANTIES
------------------------------
4.01 Representations and Warranties of the Contributor. The Contributor
-------------------------------------------------
represents and warrants to the Company as of the Effective Date that:
(a) Organization; Powers. It (i) is a limited liability company
--------------------
duly organized, validly existing and in good standing under the laws of the
State of Delaware, (ii) has all requisite power and authority to own its
property and assets and to carry on its business as now conducted and as
proposed to be conducted, (iii) is qualified to do business in, and is in good
standing in, every jurisdiction where the nature of its business so requires,
except where the failure so to qualify could not reasonably be expected to
result in a Material Adverse Effect with respect to it and (iv) has the limited
13
liability company power and authority to execute, deliver and perform its
obligations under this Agreement and each of the other Transaction Documents to
which it is a party and each other agreement or instrument contemplated hereby
or thereby to which it is or will be a party.
(b) Authorization. The execution, delivery and performance by
-------------
the Contributor of each of the Transaction Documents to which it is a party and
the performance of the Transactions (i) have been duly authorized by all
requisite company and, if applicable and required, member action and (ii) will
not (A) violate (1) any Requirement of Law applicable to it or (2) any provision
of any Transaction Document or other material Contractual Obligation to which it
is a party or by which it or any of its property is or may be bound, (B) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, or give rise to any right to accelerate
or to require the prepayment, repurchase or redemption of any obligation under
any Transaction Document or any other material Contractual Obligation to which
it is a party or by which it or any of its property is or may be bound except
where any such conflict, violation, breach or default referred to in clause (A)
or (B), individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect with respect to it or (C) result in the creation
or imposition of any Lien upon the Receivables (other than Permitted Liens and
any Lien created under the Transaction Documents or contemplated or permitted
thereby).
(c) Enforceability. This Agreement and each of the other
--------------
Transaction Documents to which it is a party have been duly executed and
delivered by the Contributor and constitutes a legal, valid and binding
obligation of the Contributor enforceable against the Contributor in accordance
with its respective terms, subject (a) to applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights generally, from time to time in effect and (b) to general
principles of equity.
(d) Governmental Approvals. No action, consent or approval of,
----------------------
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the execution and delivery of this
Agreement or the consummation of the Transactions contemplated hereby, except
for (i) the filing of UCC financing statements (or other similar filings) in any
applicable jurisdictions necessary to perfect the Company's ownership interest
in the Receivables pursuant to subsection 3.01(h), (ii) such as have been made
------------------
or obtained and are in full force and effect and (iii) such actions, consents,
approvals and filings the failure of which to obtain or make could not
reasonably be expected to result in a Material Adverse Effect with respect to
it.
(e) Litigation; Compliance with Laws.
--------------------------------
(i) There are no actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or,
to the knowledge of the Contributor, threatened against the
Contributor or any Originator of Receivables in respect of which
14
there exists a reasonable possibility of an outcome that would
result in a Material Adverse Effect with respect to it; and
(ii) neither it nor any Originator is in default with
respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, where such violation or default could
reasonably be expected to result in a Material Adverse Effect
with respect to it.
(f) Agreements.
----------
(i) Neither it, nor any Originator is a party to any
agreement or instrument or subject to any corporate restriction
that has resulted or could reasonably be expected to result in a
Material Adverse Effect with respect to it; and
(ii) Neither it, nor any Originator is in default in any
manner under any provision of any Contractual Obligation to which
it is a party or by which it or any of its properties or assets
are bound, where such default could reasonably be expected to
result in a Material Adverse Effect with respect to it.
(g) Federal Reserve Regulations. Neither it nor any Originator
---------------------------
is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose of buying or carrying Margin Stock.
(h) Investment Company Act. It is not an "investment company"
---------------------- ------------------
as defined in, or subject to regulation under, the 1940 Act or any successor
statute thereto.
(i) Tax Returns. It has filed or caused to be filed all
-----------
material tax returns and has paid or caused to be paid or made adequate
provision for all taxes due and payable by it and all assessments received by it
except to the extent that nonpayment (i) is being contested in good faith or
(ii) could not reasonably be expected to result in a Material Adverse Effect
with respect to it.
(j) ERISA Matters.
-------------
(i) it and each of its ERISA Affiliates is in compliance in
all material respects with the applicable provisions of ERISA and
the regulations and published interpretations thereunder with
respect to any Plan of the Contributor or any of its ERISA
Affiliates, except for such noncompliance which could not
reasonably be expected to result in a Material Adverse Effect
with respect to it;
15
(ii) no Reportable Event has occurred as to which the
Contributor or any of its ERISA Affiliates was required to file a
report with the PBGC, other than reports for which the 30-day
notice requirement is waived, reports that have been filed and
reports the failure of which to file would not reasonably be
expected to result in a Material Adverse Effect with respect to
it;
(iii) as of the Effective Date, the present value of all
benefit liabilities under each Plan of the Contributor or any of
its ERISA Affiliates (on an ongoing basis and based on those
assumptions used to fund such Plan) did not, as of the last
valuation report applicable thereto, exceed the value of the
assets of such Plan;
(iv) neither it nor any of its ERISA Affiliates has
incurred any Withdrawal Liability that could reasonably be
expected to result in a Material Adverse Effect with respect to
it; and
(v) neither it nor any of its ERISA Affiliates has
received any notification that any Multiemployer Plan is in
reorganization or has been terminated within the meaning of Title
IV of ERISA, or that a reorganization or termination has resulted
or could reasonably be expected to result, through increases in
the contributions required to be made to such Plan or otherwise,
in a Material Adverse Effect with respect to it.
(k) Accounting Treatment. Except to the extent otherwise
--------------------
required by law, the Contributor will not prepare any financial statements that
shall account for the transactions contemplated hereby, nor will it in any other
respect account for the transactions contemplated hereby, in a manner that is
inconsistent with the Company's ownership interest in the Receivables and the
other Receivable Assets related thereto. The Contributor intends to treat the
contribution and conveyance of the Receivables contributed hereunder to the
Company as a contribution of such Receivables for all tax, accounting and
regulatory purposes.
(l) Stamp Duty Group. Each member of the Stamp Duty Group is
----------------
associated within the meaning of Section 42 United Kingdom Finance Act 1930 (as
amended) with each other member of the Stamp Duty Group.
(m) Collection Accounts, Master Collection Accounts, Company
--------------------------------------------------------
Receipt Accounts and Company Concentration Accounts. Set forth in Exhibit C to
---------------------------------------------------
the Servicing Agreement is a complete and accurate description as of the
Effective Date of each Collection Account, each Master Collection Account, each
Company Receipt Account and each Company Concentration Account.
16
(n) Chief Executive Office. The offices at which the
----------------------
Contributor keeps its records concerning the Receivables either (x) are located
as set forth on Schedule 5 hereto or (y) are in locations as to which the
----------
Contributor has notified the Company of the location thereof in accordance with
Section 5.06. The chief executive office of the Contributor is set forth on
------------
Schedule 6 and is the place where the Contributor is "located" for the purposes
---------- -------
of Section 9-103(3)(d) of the applicable UCC that governs the perfection of the
ownership interest of the Company in the Receivables contributed hereunder, and
there have been no other such locations during the four months preceding the
date of this Agreement.
(o) Bulk Sales Act. No transaction contemplated hereby with
--------------
respect to the Contributor requires compliance with, or will be subject to
avoidance under, any bulk sales act or similar law in the United States.
(p) Names. On the Effective Date, the legal name of the
-----
Contributor is as set forth in this Agreement and the legal name of each
Originator is set forth on Schedule 7. Neither the Contributor nor any
----------
Originator has any trade names, fictitious names, assumed names or "doing
-----
business as" names except as set forth on Schedule 7.
----------- ----------
(q) Solvency. No Insolvency Event with respect to the
--------
Contributor or any Originator has occurred and the contribution, assignment,
conveyance and transfer of the Receivables by the Contributor to the Company has
not been made in contemplation of the occurrence thereof. Both prior to and
after giving effect to the transactions occurring on the Effective Date and
after giving effect to each subsequent transaction contemplated hereunder, (i)
the fair value of the assets of the Contributor and each Originator, taken
individually at a fair valuation, will exceed the debts and liabilities,
subordinated, contingent or otherwise, of the Contributor or such Originator, as
applicable; (ii) the present fair saleable value of the property of the
Contributor and each Originator, taken individually and not on a consolidated
basis, will be greater than the amount that will be required to pay the probable
liability of the Contributor or such Originator, as applicable, on its debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (iii) the Contributor will be
able to pay its debts and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured; and (iv) the Contributor
will not have unreasonably small capital with which to conduct the business in
which it is engaged as such business is now conducted and is proposed to be
conducted. For all purposes of clauses (i) through (iv) above, the amount of
contingent liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
The Contributor does not intend to, nor does it believe that it will nor that
any Originator will, incur debts beyond its or their ability to pay such debts
as they mature, taking into account the timing of and amounts of cash to be
received by the Contributor or each Originator, as the case may be, and the
timing of the amounts of cash to be payable on or in respect of its
Indebtedness.
17
(r) No Originator Termination Event. As of the Effective Date,
-------------------------------
no Potential Originator Termination Event or Originator Termination Event with
respect to the Contributor or any Originator has occurred and is continuing.
(s) No Program Termination Event. As of the Effective Date, no
----------------------------
Potential Program Termination Event or Program Termination Event shall have
occurred and be continuing.
(t) No Fraudulent Transfer. It is not entering into this
----------------------
Agreement with the actual or constructive intent to hinder, delay, or defraud
its present or future creditors and is receiving reasonably equivalent value and
fair consideration for the Receivables being contributed hereunder.
(u) Collection Procedures. It, and each Originator of
---------------------
Receivables, has in place the Policies and has not acted in contravention of any
such Policies with respect to the Receivables.
(v) No Early Amortization Event. No Early Amortization Event or
---------------------------
Potential Early Amortization Event has occurred and is continuing.
(w) Accounts. Except to the extent otherwise permitted under
--------
the terms of the Transaction Documents, each Collection Account , each Master
Collection Account and each Company Concentration Account is free and clear of
any Lien (except for Trustee Liens).
(x) No Material Adverse Effect. Since the Effective Date, no
--------------------------
event has occurred which has had a Material Adverse Effect with respect to it.
(y) No Foreclosure Act. No action or proceeding has been
------------------
brought seeking to foreclose on the Contributor's membership interest in the
Company.
The representations and warranties as of the date made set forth in
this Section 4.01 shall survive the transfer, assignment, conveyance and
------------
contribution of the Receivables and the other Receivable Assets to the Company.
Upon discovery by a Responsible Officer of the Company or the Master Servicer or
by a Responsible Officer of the Contributor of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other parties.
4.02 Representations and Warranties of the Contributor Relating to the
-----------------------------------------------------------------
Receivables. The Contributor hereby represents and warrants to the Company on
-----------
each Contribution Date with respect to the Receivables contributed by it, or
purchased from an Originator by it, being contributed, transferred, assigned and
conveyed to the Company as of such date:
(a) Receivables Description. Each Originator Daily Report
-----------------------
delivered, transmitted or received by the Contributor and referred to in
subsection 2.01(a)
------------------
18
of this Agreement sets forth in all material respects an accurate and complete
listing of all Receivables (and any Receivable Asset which can be so listed) to
be contributed, transferred, assigned and conveyed to the Company on such
Contribution Date or (as the case may be) offered for sale to the Contributor on
the relevant date and the information contained therein in accordance with
Schedule 1 with respect to each such Receivable is true and correct as of such
----------
date.
(b) No Liens. Each Receivable existing on the Initial
--------
Contribution Date or, in the case of Receivables contributed, transferred,
assigned and conveyed to the Company after the Initial Contribution Date, on
such Contribution Date, has been contributed, transferred, assigned and conveyed
to the Company free and clear of any Liens, except for Permitted Liens and
Trustee Liens.
(c) Eligible Receivable. On the Initial Contribution Date, each
-------------------
Receivable that is represented to be an Eligible Receivable on such date and set
out in any Originator Daily Reports or the Daily Reports is an Eligible
Receivable on the Initial Contribution Date and, in the case of Receivables
contributed, transferred, assigned and conveyed to the Company after the Initial
Contribution Date, each such Receivable that is represented to be an Eligible
Receivable contributed, transferred, assigned and conveyed to the Company on
such Contribution Date is an Eligible Receivable on such Contribution Date.
(d) Filings. All filings and other acts (including but not
-------
limited to notifying related Obligors of the assignment of a Receivable)
necessary or advisable under the UCC or under other applicable laws of
jurisdictions outside the United States (to the extent applicable) shall have
been made or performed in order to grant the Company on the applicable
Contribution Date a full legal and beneficial ownership interest in respect of
such Receivables then existing or thereafter arising free and clear of any Liens
(except for Permitted Liens and Trustee Liens).
(e) Policies. Since the Effective Date, there have been no
--------
material changes in the Policies, other than as permitted hereunder.
(f) True Contribution. Title to each Receivable contributed,
-----------------
assigned, conveyed and transferred hereunder will be vested in the Company as
described in clauses (b) and (d) above, and such Receivables will not form part
of the estate of the Contributor or relevant Originator upon a bankruptcy of the
Contributor.
The representations and warranties as of the date made set forth in
this Section 4.02 shall survive the contribution, transfer, assignment and
------------
conveyance of the Receivables and other Receivable Assets to the Company. Upon
discovery by a Responsible Officer of the Company or the Master Servicer or a
Responsible Officer of the Contributor of a breach of any of the representations
and warranties (or of any Receivable encompassed by the representation and
warranty in subsection 4.02(c) not being an Eligible Receivable as of the
------------------
relevant Contribution Date), the party discovering such breach shall give prompt
written notice to the other parties.
19
4.03 Representations and Warranties of the Company. The Company represents
---------------------------------------------
and warrants as to itself as follows:
(a) Organization; Powers. The Company (i) is a limited
--------------------
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware, (ii) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted and as
proposed to be conducted, (iii) is qualified to do business in, and is in good
standing in, each jurisdiction where the nature of its business so requires,
except where the failure so to qualify would not have a Material Adverse Effect
with respect to it and (iv) has the limited liability company power and
authority to execute, deliver and perform its obligations under this Agreement
and each of the other Transaction Documents to which it is a party and each
other agreement or instrument contemplated hereby or thereby to which it is or
will be a party.
(b) Authorization. The execution, delivery and performance by
-------------
the Company of each of the Transaction Documents to which it is a party and the
performance of the Transactions (i) have been duly authorized by all requisite
company and, if applicable and required, Shareholder action and (ii) will not
(A) violate (1) any Requirement of Law or (2) any provision of any Transaction
Document or any other material Contractual Obligation to which the Company is a
party or by which it or any of its property is or may be bound, (B) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, or give rise to any right to accelerate
or to require the prepayment, repurchase or redemption of any obligation under
any Transaction Document or any other material Contractual Obligation to which
it is a party or by which it or any of its properties is or may be bound, except
where any such conflict, violation, breach or default referred to in clauses (A)
or (B), individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect with respect to it or (C) result in the creation
or imposition of any Lien upon the Receivables (other than Permitted Liens or
Trustee Liens).
(c) Enforceability. This Agreement and each other Transaction
--------------
Document to which it is a party have been duly executed and delivered by the
Company and constitutes, a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its respective terms, subject
(a) to applicable bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting the enforcement of creditors' rights generally, from time
to time in effect and (b) to general principles of equity.
(d) Accounting Treatment. Except to the extent otherwise
--------------------
required by law, the Company will not prepare any financial statements that
shall account for the transactions contemplated hereby, nor will it in any other
respect account for the transactions contemplated hereby, in a manner that is
inconsistent with the Company's ownership interest in the Receivables.
(e) Contributor. The Contributor is a Shareholder in the
-----------
Company, and the Contributor's Shares in the Company are owned free and clear of
all
20
Liens, other than any liens in favor of the Company arising under the Limited
Liability Company Agreement, provided that, the Contributor may pledge any or
all of its Shares to the Collateral Agent under the Credit Agreement.
5. AFFIRMATIVE COVENANTS
---------------------
The Contributor hereby agrees that, so long as there are any amounts
outstanding with respect to Receivables or until an Early Program Termination,
whichever is later, the Contributor shall, and shall cause each Originator to:
5.01 Financial Statements, Reports, etc.:
------------------------------------
(a) Furnish to the Company, within 150 days after the end of
each fiscal year, the balance sheet and related statements of income, members'
equity and cash flows showing the financial condition of the Contributor as of
the close of such fiscal year and the results of its operations during such
year, all audited by the Contributor's Independent Public Accountants and
accompanied by an opinion of such accountants (which shall not be qualified in
any material respect) to the effect that such financial statements fairly
present in all material respects the financial condition and results of
operations of the Contributor in accordance with GAAP consistently applied;
(b) Furnish to the Company, within 60 days after the end of each
of the first three fiscal quarters of each fiscal year, the Contributor's
unaudited balance sheet and related statements of income, members' equity and
cash flows for the period from the beginning of such fiscal year to the end of
such quarter, all certified by a Responsible Officer of the Contributor;
(c) Furnish to the Company, together with the financial
statements required pursuant to clauses (i) and (ii) above, a compliance
certificate signed by a Responsible Officer of the Company stating that (x) the
attached financial statements have been prepared in accordance with GAAP and
accurately reflect the financial condition of the Company and (y) to the best of
such Responsible Officer's knowledge, no Early Amortization Event or Potential
Early Amortization Event exists, or if any Early Amortization Event or Potential
Early Amortization Event exists, stating the nature and status thereof;
(d) Furnish to the Company upon request, promptly upon the
furnishing thereof to the Shareholders of the Contributor, copies of all
financial statements, financial reports and proxy statements so furnished;
(e) Furnish to the Company, promptly, all information,
documents, records, reports, certificates, opinions and notices received by the
Contributor from an Originator under any Receivables Purchase Agreement;
(f) Furnish to the Company, promptly, from time to time, such
historical information, including aging and liquidation schedules, in form and
substance
21
satisfactory to the Funding Agent and the Rating Agencies, as the Company may
reasonably request; and
(g) Furnish to the Company, promptly, from time to time, such
other information regarding the operations, business affairs and financial
condition of the Contributor, or compliance with the terms of any Transaction
Document, in each case as the Company may reasonably request.
5.02 Compliance with Law and Policies.
--------------------------------
(a) Comply with all Requirements of Law and material Contractual
Obligations to which it is subject and which are applicable to it except to the
extent that non-compliance would not reasonably be likely to result in a
Material Adverse Effect with respect to it; and
(b) Perform its obligations in accordance with the Policies, as
amended from time to time in accordance with the Transaction Documents, in
regard to the Receivables and the other Receivable Assets.
5.03 Preservation of Company Existence. (i) Preserve and maintain its
---------------------------------
company existence, rights and privileges, if any, in the jurisdiction of its
organization and (ii) qualify and remain qualified in good standing as a foreign
company in each jurisdiction where the nature of its business so requires,
except where the failure so to qualify would not, individually or in the
aggregate with other such failures, have a Material Adverse Effect with respect
to it.
5.04 Separate Company Existence.
--------------------------
(a) Except as set forth in the Transaction Documents, maintain
its deposit account or accounts, separate from those of the Company and ensure
that its funds will not be diverted to the Company, nor will such funds be
commingled with the funds of the Company;
(b) To the extent that it shares any officers or other employees
with the Company, the salaries of and the expenses related to providing benefits
to such officers and other employees shall be fairly allocated among it and the
Company, and it and the Company shall bear their fair shares of the salary and
benefit costs associated with all such common officers and employees;
(c) To the extent that it jointly contracts with the Company to
do business with vendors or service providers or to share overhead expenses, the
costs incurred in so doing shall be allocated fairly between it and the Company
and it and the Company shall bear their fair shares of such costs. To the extent
that it contracts or does business with vendors or service providers where the
goods and services provided are partially for the benefit of the Company, the
costs incurred in so doing shall be fairly allocated between it and the Company
in proportion to the benefit of the goods or
22
services each is provided, and it and the Company shall bear their fair shares
of such costs. All material transactions between it and the Company, whether
currently existing or hereafter entered into, shall be only on an arm's length
basis;
(d) Maintain office space separate from the office space of the
Company (but which may be located at the same address as the Company). To the
extent that it and the Company have offices in the same location, there shall be
a fair and appropriate allocation of overhead costs between them, and each shall
bear its fair share of such expenses;
(e) Issue financial statements separate from any financial
statements issued by the Company;
(f) Conduct its affairs strictly in accordance with its
organizational documents and observe all necessary, appropriate and customary
company formalities, including, but not limited to, holding regular and special
members' and directors' meetings appropriate to authorize all action, keeping
separate minutes of its meetings, passing all resolutions or consents necessary
to authorize actions taken or to be taken, and maintaining separate books,
records and accounts, including, but not limited to, payroll and intercompany
transaction accounts;
(g) Except as set forth in the Transaction Documents, not assume
or guarantee any of the liabilities of the Company; and
(h) Take, or refrain from taking, as the case may be, all other
actions that are necessary to be taken or not to be taken in order (x) to ensure
that the assumptions and factual recitations set forth in the Specified
Bankruptcy Opinion Provisions remain true and correct with respect to it (and,
to the extent within its control, to ensure that the assumptions and factual
recitations set forth in the Specified Bankruptcy Opinion Provisions remain true
and correct with respect to the Company) and (y) to comply with those procedures
described in such provisions that are applicable to it.
5.05 Inspection of Property; Books and Records; Discussions. Keep proper
------------------------------------------------------
books of records and account in which entries in conformity with GAAP shall be
made of all dealings and transactions in relation to its business and
activities; and permit representatives of the Company upon reasonable advance
notice to visit and inspect any of its properties and examine and make abstracts
from any of its books and records during normal business hours on any Local
Business Day and as often as may reasonably be requested, subject to the
Contributor's or such Originator's security and confidentiality requirements and
to discuss the business, operations, properties and financial condition of the
Contributor and each Originator with officers and employees of the Contributor
and with its Independent Public Accountants.
5.06 Location of Records. Keep its chief executive office, and the offices
-------------------
where it keeps the records concerning the Receivables and the other Receivable
Assets relating thereto (and all original documents relating thereto), at the
locations referred to
23
for it on Schedule 5 and Schedule 6 hereto or upon 60 days' prior written notice
---------- ----------
to the Company, at such other locations in a jurisdiction where all action
required by Section 5.16 shall have been taken and completed and be in full
------------
force and effect.
5.07 Computer Files and other Documents. At its own cost and expense,
----------------------------------
retain the ledger used by it as a master record of the Obligors and cause the
applicable Originator to retain copies of all documents relating to each Obligor
as custodian and agent for the Company and other Persons with interests in the
Receivables originated by it, as well as retain, and cause all the Originators
to retain, all Originator Documents.
5.08 Obligations. Pay, discharge or otherwise satisfy at or before
-----------
maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature (including, without limitation, all taxes,
assessments, levies and other governmental charges imposed on it), except where
the amount or validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with respect
thereto have been provided on the books of the Contributor. Defend the right,
title and interest of the Company in, to and under the Receivables and the other
Receivable Assets related thereto, whether now existing or hereafter created,
against all claims of third parties claiming through the Contributor. The
Contributor will duly fulfill all obligations on its part to be fulfilled under
or in connection with each Receivable and will do nothing to materially impair
the rights of the Company in such Receivable.
5.09 Collections. Instruct each Obligor to make payments in respect of its
-----------
Receivables to a Collection Account and to comply in all material respects with
procedures with respect to Collections reasonably specified from time to time by
the Company. In the event that any payments in respect of any such Receivables
are made directly to the Contributor or an Originator (including, without
limitation, any employees thereof or independent contractors employed thereby),
the Contributor shall, and shall cause such Originator to, within one (1) Local
Business Day of receipt thereof, deliver or deposit such amounts to a Collection
Account and, prior to forwarding such amounts, the Contributor shall, or shall
cause such Originator to, as applicable, hold such payments in trust for the
account and benefit of the Company.
5.10 Furnishing Copies, Etc. Furnish to the Company (subject to Section
----------------------- -------
8.15 hereof):
----
(a) Within five (5) Local Business Days of the Company's
request, a certificate of a Responsible Officer of the Contributor, certifying,
as of the date thereof, to the knowledge of such officer, that no Originator
Termination Event has occurred and is continuing or if one has so occurred,
specifying the nature and extent thereof and any corrective action taken or
proposed to be taken with respect thereto;
(b) Promptly after a Responsible Officer of the Contributor
obtains knowledge of the occurrence of any Originator Termination Event or
Potential Originator Termination Event, written notice thereof;
24
(c) Promptly following request therefor, such other information,
documents, records or reports regarding or with respect to the Receivables of
the Contributor or Receivables purchased from an Originator, as the Company may
from time to time reasonably request; and
(d) Promptly upon determining that any Receivable originated by
it designated as an Eligible Receivable on the Daily Report or Monthly
Settlement Report (such Monthly Settlement Report shall contain at least the
information specified in Schedule 2 hereto) was not an Eligible Receivable as of
----------
the date provided therefor, written notice of such determination.
5.11 Responsibilities of the Contributor as Local Servicer. Notwithstanding
-----------------------------------------------------
anything herein to the contrary, (i) the Contributor, while acting as Local
Servicer, shall perform or cause to be performed all of its obligations under
the Policies related to the Receivables to the same extent as if such
Receivables had not been contributed, assigned, transferred and conveyed to the
Company hereunder, (ii) the exercise by the Company of any of its rights
hereunder shall not relieve the Contributor of its obligations with respect to
such Receivables and (iii) except as provided by law, the Company shall not have
any obligation or liability with respect to any Receivables, nor shall the
Company be obligated to perform any of the obligations or duties of the
Contributor or any Originator thereunder.
5.12 Assessments. Pay before the same become delinquent and discharge all
-----------
taxes, assessments, levies and other governmental charges imposed on it except
such taxes, assessments, levies and governmental charges which are being
contested in good faith and for which the Contributor has set aside on its books
adequate reserves.
5.13 Purchase of Receivables. Purchase Receivables solely in accordance
-----------------------
with the Receivables Purchase Agreements or this Agreement.
5.14 Notices. Promptly give written notice to the Trustee, each Rating
-------
Agency and each Funding Agent for any Outstanding Series of the occurrence of
any Liens on Receivables (other than Permitted Liens), Early Amortization Event
or Potential Early Amortization Event, including the statement of a Responsible
Officer of the Contributor setting forth the details of such Early Amortization
Event or Potential Early Amortization Event and the action taken, or which the
Contributor proposes to take, with respect thereto.
5.15 Bankruptcy. Cooperate with the Company, the Funding Agent and Trustee
----------
in making any amendments to the Transaction Documents and take, or refrain from
taking, as the case may be, all other actions deemed reasonably necessary by the
Funding Agent and/or Trustee in order to comply with the structured finance
statutory exemption set forth in legislative amendments to the U.S. Bankruptcy
Code at or any time after such amendments are enacted into law; provided,
however, that it shall not be required to make any amendment or to take, or omit
from taking, as the case may be, any action which it reasonably believes would
have the effect of materially changing the
25
economic substance of the transaction contemplated by the Transaction Documents
on the Effective Date.
5.16 Further Action. In addition to the foregoing:
--------------
(a) The Contributor agrees that from time to time, at its
expense, it will promptly execute and deliver all further instruments and
documents, and take all further action (including but not limited to notifying
the related Obligors to the extent necessary to perfect the ownership interest
of the Company in the Receivables) that may be necessary in the Contributor's
reasonable judgment or that the Company may reasonably request, in order to
protect the Company's right, title and interest in the Receivables, or to enable
the Company to exercise or enforce any of its rights in respect thereof. Without
limiting the generality of the foregoing, the Contributor will, and will cause
each Originator to, upon the request of the Company (i) execute and file such
financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or, in the opinion of the Company,
advisable to protect the Company's ownership interest in the Receivables and
(ii) obtain the agreement of any Person having a Lien on any Receivables owned
by the Contributor or an Originator (other than any Lien created or imposed
under the Pooling Agreement or any Permitted Lien) to release such Lien upon the
contribution, assignment, transfer and conveyance of any such Receivables to the
Company;
(b) Until the termination of this Agreement, the Contributor
hereby irrevocably authorizes the Company to file one or more financing or
continuation statements (and other similar instruments), and amendments thereto,
relative to all or any part of the Receivables and the other Receivable Assets
related thereto, contributed, assigned, conveyed or transferred or to be
contributed, assigned, conveyed or transferred by the Contributor without the
signature of the Contributor to the extent permitted by applicable law; and
(c) If the Contributor fails to perform any of its agreements or
obligations under this Agreement, following notice to the Contributor detailing
such delinquency, the Company may (but shall not be required to) perform, or
cause performance of, such agreements or obligations, and the expenses of the
Company incurred in connection therewith shall be payable by the Contributor as
provided in Section 9.02. The Company agrees promptly to notify the Contributor
------------
after any such performance; provided, however, that the failure to give such
-------- -------
notice shall not affect the validity of any such performance.
5.17 Marking of Records. The Contributor will, and will cause each
------------------
Originator to, identify on its extraction records relating to the Receivables
from its master database of receivables that the Receivables and all other
Receivable Assets related thereto have been contributed, assigned, conveyed or
transferred to the Company, and thereupon a Participation and security interest
granted by the Company to the Trustee. The Contributor agrees that from time to
time it will promptly execute and deliver all instruments and documents, and
take all further action, that Company may reasonably
26
request in order to perfect, protect or more fully evidence the Trustee's first
priority perfected security interest in such Receivables and the related
Collections.
5.18 Stamp Duty.
----------
(a) It will procure that each member of the Stamp Duty Group shall
remain associated within the meaning of Section 42 United Kingdom Finance Act
1930 (as amended) with each other member of the Stamp Duty Group; and
(b) The Company and the Contributor will each pay and hold
itself responsible for and will seek no indemnity from the Trustee in respect of
Stamp Duty which is required to be paid in order to secure the stamping of any
Relevant Document for any of the following purposes:
(i) allowing the Relevant Document in question to be
produced in evidence in proceedings in the United Kingdom where
this is required in order to enable the Company to enforce its
rights in respect of any Receivables against the Obligors and
either:
(A) the judge, arbitrator or other person responsible
for the determination of such proceedings has ruled that an
executed original or counterpart of the Relevant Document
must be produced in evidence as aforesaid (provided that if
an appeal against the ruling is permissible and the Company
so requests, and on the condition that the Company
indemnifies the Trustee to its satisfaction on an after-tax
basis for all costs involved in such appeal, the Trustee
will pursue such an appeal pending which the Trustee will
not cause an executed original or counterpart of the
Relevant Document to be produced in evidence as aforesaid);
or
(B) the rules governing the conduct of such
proceedings provide that a certified unstamped copy of the
Relevant Document or any other form of evidence of the
matters which are the subject of such proceedings cannot be
produced as adequate evidence for the purposes of such
proceedings;
(ii) complying with a requirement imposed by any judicial or
governmental authority for the Relevant Document to be stamped
before it will be taken into account for the purpose of
determining any liability of the Company to taxation (subject to
the
27
Company taking reasonable steps to resist or avoid such
requirement (insofar as it is able to do so while fully complying
with its obligations under applicable law and practice and
without causing any material prejudice (actual or potential) to
its interests)).
5.19 Enforcement of Agreements. The Contributor shall enforce its rights
--------------------------
under each Origination Agreement, including, without limitation, the right to
receive Adjustment Payments and indemnification thereunder.
6. NEGATIVE COVENANTS
------------------
Except as otherwise provided in Section 6.11, the Contributor hereby
------------
agrees that, so long as there are any amounts outstanding with respect to
Receivables originated by the Contributor or purchased by the Contributor,
previously contributed, assigned, conveyed or transferred by the Contributor to
the Company or until an Early Program Termination, whichever is the later, the
Contributor shall not, and shall not permit any Originator to:
6.01 Limitations on Transfers of Receivables, Etc. At any time attempt to
---------------------------------------------
re-contribute, reconvey, reassign, re-transfer or otherwise purport to dispose
of any of the Receivables or other Receivable Assets relating thereto, except as
contemplated by the Transaction Documents.
6.02 Extension or Amendment of Receivables. Whether acting as Local
-------------------------------------
Servicer or otherwise, extend payment terms, make any Dilution Adjustment to,
rescind, cancel, amend or otherwise modify, or attempt or purport to extend,
amend or otherwise modify, the terms of any Receivables, unless (a) (i) such
cancellation, termination, amendment, modification, or waiver is made in
accordance with the Policies (and would have been made in the ordinary course of
business), (ii) if such cancellation, termination, amendment, modification or
waiver arose as a result of a request from an Obligor, (iii) if any such
amendment, modification or waiver does not cause such Receivable to cease to be
an Eligible Receivable and (iv) such cancellation, termination, amendment,
modification or waiver would not have a material and prejudicial effect on the
collectibility of the relevant Receivable or (b) such Dilution Adjustment is the
result of a pre-existing contractual obligation between the Contributor or any
Originator, as the case may be, and the related Obligor with respect to such
Receivable provided, that in the event the Contributor or such Originator
--------
cancels an invoice related to a Receivable, the Contributor must make a
Contributor Dilution Adjustment Payment in accordance with Section 2.05;
------------
provided, further that in the event a Contributor or any Originator cancels an
-------- -------
invoice related to a Receivable, either (i) such invoice must be replaced with
an invoice relating to the same transaction as the cancelled invoice of equal or
greater Principal Amount on the same Business Day as the day of cancellation
(ii) such invoice must be replaced with an invoice relating to the same
transaction as the cancelled invoice of a lesser Principal Amount on the same
Business Day and the Contributor must make an Contributor Dilution Adjustment
Payment to the Company in an amount equal to the
28
difference between such cancelled and replacement invoices or (iii) the
Contributor must make an Contributor Dilution Adjustment Payment to the Company
in an amount equal to the full value of such cancelled invoice pursuant to
Section 2.05.
------------
6.03 Change in Payment Instructions to Obligors. Instruct any Obligor to
------------------------------------------
make any payments with respect to any Receivables other than, in accordance with
Section 5.09, by check or wire transfer to a Collection Account.
------------
6.04 Change in Name. Change its name, use an additional name, change its
--------------
identity or company structure or change its chief executive officer unless at
least 60 days' prior to the effective date of any such change it delivers to the
Company such documents, instruments or agreements as are necessary to reflect
such change and to continue the perfection of the Company's ownership interest
in the Receivables.
6.05 Policies. Make any change or modification (or permit any change or
--------
modification to be made) in any material respect to the Policies, except (i) if
such changes or modifications are necessary under any Requirement of Law, or
(ii) if the Rating Agency Condition is satisfied with respect thereto; provided,
--------
however, that if any change or modification, other than a change or modification
-------
permitted pursuant to clause (i) above, would reasonably be expected to have a
Material Adverse Effect with respect to a Series which is rated by a Rating
Agency, the consent of Investor Certificateholders representing Fractional
Undivided Interests aggregating not less than 51% of the Adjusted Invested
amount of such Series (or, as otherwise specified in the related Supplement)
shall be required to effect such change or modification.
6.06 Modification of Legend. Delete or otherwise modify the marking on the
----------------------
legend referred to in subsection 2.01(b) of the Pooling Agreement.
------------------
6.07 Accounting for Contributions. Except as otherwise required by law,
----------------------------
prepare any financial statements which shall account for the transactions
contemplated hereby in any manner other than as a contribution of the
Receivables to the Company or in any other respect account for or treat the
transactions contemplated hereby (including for financial accounting purposes,
except as required by law) in any manner other than as contribution of the
Receivables to the Company.
6.08 Instruments. Unless delivered to the Trustee pursuant to Section
-----------
2.01(b) of the Pooling Agreement, take any action to cause any Receivable not
evidenced by an "instrument" (as defined in Section 9-105(1)(i) of the
----------
applicable UCC) upon origination to become evidenced by an instrument, except in
connection with the enforcement or collection of a Defaulted Receivable.
6.09 Ineligible Receivables. Without the prior written approval of the
----------------------
Company, take any action relating to such Receivable which to its knowledge
would cause, or would permit such Receivable that was designated as an Eligible
Receivable on the Contribution Date, relating to such Receivable to cease to be
an Eligible Receivable, except as otherwise expressly provided by this
Agreement.
29
6.10 Business of the Contributor. Fail to maintain and operate the
---------------------------
business currently conducted by the Contributor, or fail to cause any Originator
to maintain and operate the business currently conducted by such Originator, and
business activities reasonably incidental or related thereto in substantially
the manner in which it is presently conducted and operated if such failure would
reasonably be expected to result in a Material Adverse Effect with respect to
it.
6.11 Limitation on Fundamental Changes. Enter into any merger or
---------------------------------
consolidate with another Person or sell, lease, transfer or otherwise dispose of
assets constituting all or substantially all of the assets of the Contributor
and its consolidated Subsidiaries (taken as a whole) to another Person or
liquidate or dissolve unless:
(a) either (i) the Contributor is the surviving entity, or (ii)
the surviving Person (A) assumes, without execution or filing of any paper or
any further act on the part of any of the parties hereto other than the
Contributor, the performance of each of the Contributor's covenants and
obligations hereunder and (B) no Material Adverse Effect with respect to the
Contributor shall result from such merger, consolidation, sale, lease, transfer
or disposal of assets;
(b) subject to Section 8.15 hereof, the Contributor has
------------
delivered to the Trustee a certificate executed by a Responsible Officer of the
Contributor addressed to the Trustee stating that (i) such consolidation,
merger, conveyance or transfer complies with this Section 6.11 and (ii) all
------------
conditions precedent herein provided for relating to such transaction have been
complied with;
(c) it has delivered to the Trustee an Opinion of Counsel from
a nationally recognized legal counsel to the effect that the contribution of
Receivables to the Company by such Surviving Person, after the date of such
merger, consolidation, sale, lease, transfer or disposal of assets, shall be
treated as a "true contribution" or "true sale" of any such Receivables;
----------------- ---------
(d) it has delivered to the Trustee a General Opinion; and
(e) the Rating Agency Condition has been satisfied.
6.12 Offices. Move the location of the Contributor's chief executive
-------
office or of any of the offices where it keeps its records with respect to the
U.S. Receivables, or its legal head office to a new location within or outside
the jurisdiction where such office is now located, without (i) providing thirty
(30) days' prior written notice to the Company, the Trustee, each Funding Agent
and each Rating Agency and (ii) taking all actions reasonably requested by the
Trustee (including but not limited to all filings and other acts necessary or
advisable under the applicable UCC or other applicable laws or similar statute
of each relevant jurisdiction) in order to continue the Trust's first priority
perfected security interest in all Receivables now owned or hereafter created.
30
6.13 Constitutive Documents. Amend or make any change or modification to
----------------------
its constitutive documents without first satisfying the Rating Agency Condition
and obtaining the consent of each Funding Agent (provided that, notwithstanding
anything to the contrary in this Section 6.13, the Contributor may make
------------
amendments, changes or modifications pursuant to changes in law of the
jurisdiction of its organization or amendments to change the Contributor's name
(subject to compliance with Section 6.04 above), registered agent or address of
registered office).
6.14 Amendment of Transaction Documents or Other Material Documents.
--------------------------------------------------------------
Other than as set forth in the Transaction Documents, amend any Transaction
Document or other material document related to any transactions contemplated
hereby or thereby including, but not limited to, any of the Receivables Purchase
Agreements.
6.15 Additional Equity. Permit the Company to issue or sell any
-----------------
additional Shares, membership interests or equity interests in the Company to
any Person until after the Trust Termination Date.
6.16 Receivables Purchase Agreements. Take any action under the
-------------------------------
Receivables Purchase Agreements that could reasonably be expected to have a
Material Adverse Effect.
7. TERMINATION EVENTS
------------------
7.01 Originator Termination Events. If any of the following events
-----------------------------
(herein called "Originator Termination Events") shall have occurred and be
-----------------------------
continuing with respect to the Contributor:
(a) the Contributor shall fail to pay any amount due hereunder
in accordance with the provisions hereof and such failure shall continue
unremedied for a period of two (2) Business Days from the earlier to occur of
(i) the date upon which a Responsible Officer of the Contributor obtains actual
knowledge of such failure or (ii) the date on which written notice of such
failure, requiring the same to be remedied, shall have been given (A) to the
Contributor by the Company or the Trustee or (B) to the Company, to the Trustee
and to the Contributor by holders of Investor Certificates evidencing 25% or
more of the Aggregate Invested Amount; or
(b) the Contributor shall fail to observe or perform any other
covenant or agreement applicable to it contained herein (other than as specified
in paragraph (a) of this Section 7.01) that has a Material Adverse Effect with
------------
respect to it and that continues unremedied until ten (10) Local Business Days
after the date on which written notice of such failure, requiring the same to be
remedied shall have been given (A) to the Contributor by the Company or the
Trustee or (B) to the Company, to the Trustee and to the Contributor by holders
of Investor Certificates evidencing 25% or more of the Aggregate Invested
Amount, provided that if such failure may be cured and the Contributor is
--------
diligently pursing such cure, such event shall not constitute an Originator
Termination Event for an additional thirty (30) days; or
31
(c) any representation or warranty made by the Contributor in
this Agreement or in any certificate delivered pursuant to this Agreement shall
prove to have been incorrect in any material respect when made or deemed made,
and which continues unremedied until ten (10) Local Business Days after the date
on which written notice thereof, requiring the same to be remedied, shall have
been given (A) to the Contributor by the Company or the Trustee or (B) to the
Company, to the Trustee and to the Contributor by holders of Investor
Certificates evidencing 25% or more of the Aggregate Invested Amount, provided
--------
that if such incorrectness may be cured and the Contributor is diligently
pursuing such cure, such event shall not constitute an Originator Termination
Event for an additional thirty (30) days and provided further that an Originator
-------- -------
Termination Event shall not be deemed to have occurred under this paragraph (c)
based upon a breach of any representation or warranty set forth in Section 4.02
------------
if the Contributor shall have complied with the provisions of Section 2.06 in
------------
respect thereof; or
(d) the Contributor has been terminated as Local Servicer,
following a Master Servicer Default, then, in the case of any Originator
Termination Event, so long as such Originator Termination Event shall be
continuing, the Company shall terminate its obligation to accept a contribution
of Receivables from the Contributor and the Contributor shall be terminated as
an Originator upon 10 days written notice (the date on which such notice becomes
effective, the "Originator Termination Date") to the Contributor (any such
---------------------------
termination, an "Early Originator Termination"); provided that such removal or
---------------------------- --------
termination shall be in accordance with Section 2.10 of the Pooling Agreement.
7.02 Program Termination Events. If any of the following events (herein
--------------------------
called "Program Termination Events") shall have occurred and be continuing:
--------------------------
(a) an Insolvency Event shall have occurred with respect to the
Contributor; or
(b) there shall have occurred and be continuing (i) an Early
Amortization Event set forth in Section 7.01 (a) through (e) of the Pooling
----------------------------
Agreement or (ii) the Amortization Period with respect to all Outstanding
Series; or
(c) a notice of Lien shall have been filed by the PBGC against
the Contributor under Section 412(n) of the Code or Section 302(f) of ERISA for
a failure to make a required installment or other payment to a plan to which
Section 412(n) of the Code or Section 302(f) of ERISA applies unless there shall
have been delivered to the Trustee and the Rating Agencies proof of release of
such Lien; or
(d) a Federal (or equivalent) tax notice of Lien, in an amount
equal to or greater than $500,000, shall have been filed against the Contributor
unless there shall have been delivered to the Trustee and the Rating Agencies
proof of release of such Lien; or
32
(e) an Originator Termination Date shall have occurred with
respect to an Originator that, as of the last Monthly Settlement Report, had
originated more than 10% of the Aggregate Receivables Amount reflected on such
report; or
(f) an Originator Termination Event shall have occurred but
such Originator has not been terminated within 10 calendar days in accordance
with Section 2.10 of the Pooling Agreement;
then, after the expiration of any applicable cure period, the obligation of the
Company to accept contributions shall terminate without notice (such date of
termination, the "Program Termination Date" and any such termination, an "Early
------------------------ -----
Program Termination"), and there shall be an Early Amortization Event pursuant
-------------------
to Section 7.01 of the Pooling Agreement.
7.03 Remedies.
--------
(a) If an Originator Termination Date or Program Termination
Date has occurred, the Company (and its assignees) shall have all of the rights
and remedies provided to an owner of accounts under applicable law in respect
thereto.
(b) The Contributor agrees that, upon the occurrence and during
the continuation of a Program Termination Event as described in subsection
----------
7.02(a) or (b)(i):
------ ------
(i) the Company (and its assignees) shall have the right
at any time to notify, or require that the Contributor, at its
expense, notify, the respective Obligors of the grant by the
Company of a Participation of and grant in a security interest in
the Receivables and other Receivable Assets and may direct that
payment of all amounts due or to become due under the Receivables
be made directly to the relevant Company Concentration Accounts;
(ii) the Company (and its assignees) shall have the right
to (A) ▇▇▇ for Collections on any Receivables or (B) sell any
Receivables to any Person for a price that is acceptable to the
Company. If required by the applicable UCC (or analogous
provisions of any other similar law, statute or legislation
applicable to the Receivables), the Company (and its assignees)
may offer to sell any Receivable to any Person, together, at its
option, with all other Receivables created by the same Obligor.
Any Receivable sold hereunder (other than pursuant to the Pooling
Agreement) shall cease to be a Receivable for all purposes under
this Agreement as of the effective date of such sale;
(iii) the Contributor in such capacity or in its capacity
as Local Servicer, shall, and shall cause each Originator to,
upon the
33
Company's (or its assignees') written request and at the Contributor's
expense, (A) assemble all of its documents, instruments and other records
(including credit files and computer tapes or disks) that (1) evidence or
will evidence or record Receivables and (2) are otherwise necessary or
desirable to effect Collections of such Receivables including (i)
Receivable specific information including, when applicable, invoice
number, invoice due date, invoice value, purchase order reference,
shipping date, shipping address, shipping terms, copies of delivery
notes, bills of lading, insurance documents, copies of letters of credit,
bills of exchange or promissory notes, other security documents, and (ii)
Obligor specific information, including copy of the Contract,
correspondence file and details of any security held (collectively, the
"Originator Documents") and (B) deliver such Originator Documents to the
--------------------
Company or its designee at a place designated by the Company. In
recognition of the Contributor's need to have access to any Originator
Documents which may be transferred to the Company hereunder, whether as a
result of its continuing business relationship with any Obligor for
Receivables or as a result of its responsibilities as Local Servicer, the
Company hereby grants to the Contributor a license to access the
Originator Documents transferred by the Contributor to the Company and to
access any such transferred computer software in connection with any
activity arising in the ordinary course of the Contributor's business or
in performance of the Contributor's duties as Local Servicer; provided
--------
that the Contributor shall not disrupt or otherwise interfere with the
Company's use of and access to the Originator Documents and its computer
software during such license period; and
(iv) upon written request of the Company, the Contributor will (A)
deliver to the Company all licenses, rights, computer programs, related
material, computer tapes, disks, cassettes and data necessary for the
immediate collection of the Receivables by the Company, with or without
the participation of the Contributor (excluding software licenses which
by their terms are not permitted to be so delivered; provided that the
--------
Contributor shall use reasonable efforts to obtain the consent of the
relevant licensor to such delivery but shall not be required, to the
extent it has an ownership interest in any electronic records, computer
software or licenses, to transfer, assign, set-over or otherwise convey
such ownership interests to the Company) and (B) make such arrangements
with respect to the collection of the Receivables as may be reasonably
required by the Company.
34
8. MISCELLANEOUS
-------------
8.01 Payments. All payments to be made by a party ("payor") hereunder
-------- -----
shall be made in Dollars on the applicable due date and in immediately available
funds to the recipient's ("payee") account set forth in Schedule 6 of this
----- ----------
Agreement or to such other account as may be specified by such payee from time
to time in a notice to such payor. Wherever any payment to be made under this
Agreement shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day.
8.02 Costs and Expenses. The Contributor agrees to pay, indemnify, and
------------------
hold the Company harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever (i) which may at any
time be imposed on, incurred by or asserted against the Company in any way
relating to or arising out of this Agreement or the other Transaction Documents
or the transactions contemplated hereby and thereby or in connection herewith or
any action taken or omitted by the Company under or in connection with any of
the foregoing (all such other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses and disbursements being
herein called "Originator Indemnified Liabilities") or (ii) which would not have
----------------------------------
been imposed on, incurred by or asserted against the Company but for its having
acquired the Receivables hereunder; provided, however, that such indemnity shall
-------- -------
not be available to the extent that such Originator Indemnified Liabilities are
finally judicially determined to have resulted from the gross negligence or
willful misconduct of the Company and provided further, that nothing herein
-------- -------
shall be interpreted as an obligation of the Contributor to pay or reimburse the
Company's regular, on-going business expenses which shall be paid from the
Company's own funds. The agreements of the Contributor in this Section 8.02
------------
shall survive the collection of all Receivables, the termination of this
Agreement and the payment of all amounts payable hereunder.
8.03 Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the Contributor and the Company and their respective
successors (whether by merger, consolidation or otherwise) and permitted
assigns. The Contributor agrees that it will not assign or transfer all or any
portion of its rights or obligations hereunder without the prior written consent
of the Company. The Contributor acknowledges that, pursuant to the Pooling
Agreement, the Company shall grant the Participation to the Trustee as well as
granting to the Trustee a security interest in, among other things, all of its
rights hereunder. The Contributor further agrees that, in respect of its
obligations hereunder, it will act at the direction of and in accordance with
all requests and instructions from the Trustee until all amounts due to the
Investor Certificateholders are paid in full.
8.04 Intentionally Omitted
8.05 Intentionally Omitted
35
8.06 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
-------------
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND WITHOUT REFERENCE TO
ANY CONFLICT OF LAWS PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW), SUBJECT TO THE RESERVATION OF THE LAWS OF ANOTHER
JURISDICTION THAT MAY BE APPLICABLE TO ANY ISSUES RELATED TO PERFECTION OF ANY
CONTRIBUTION HEREUNDER.
8.07 No Waiver; Cumulative Remedies. No failure to exercise and no delay
------------------------------
in exercising, on the part of the Company, any right, remedy, power or privilege
hereunder, shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
8.08 Amendments and Waivers. Neither this Agreement nor any terms hereof
----------------------
may be amended, supplemented or modified except in a writing signed by the
Company and the Contributor and that otherwise complies with any applicable
provision in the other Transaction Documents. Any amendment, supplement or
modification shall not be effective until the Rating Agency Condition has been
satisfied.
8.09 Severability. Any provision of this Agreement which 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, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8.10 Notices. All notices, requests and demands to or upon the respective
-------
parties hereto to be effective shall be in writing (including by telecopy), and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or three (3) days after being deposited in
the mail, postage prepaid, or, in the case of telecopy notice, when received,
addressed as follows in the case of the Company and the Contributor, or to such
other address as may be hereafter notified by the respective parties hereto:
With respect to the Company: Huntsman Receivables Finance LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇
Attention: Office of the General Counsel
Telecopy: ▇ (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: Huntsman (Europe) BVBA
▇▇▇▇▇▇▇▇▇ ▇▇
▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: Treasury Department
Telecopy: 32 2759 5501
With respect to the Contributor-------- Huntsman International LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇
Attention: Office of the General Counsel
Telecopy: ▇ (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: Huntsman (Europe) BVBA
▇▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: Treasury Department
Telecopy: 32 2759 5501
With respect to the Trustee------------ Chase Manhattan Bank (Ireland) plc,
Chase Manhattan House
International Financial Services Centre
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: 353 1 612 5777
8.11 Counterparts. This Agreement may be executed by one or more of the
------------
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Company.
8.12 Submission to Jurisdiction; Service of Process.
----------------------------------------------
(a) Each of the parties hereto hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in the Borough of
Manhattan, City of New York for purposes of all legal proceedings arising out of
or relating to this Agreement or the transactions contemplated hereby. Each of
the parties hereto hereby irrevocably waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court, any claim
that any such proceeding brought in such a court has been
37
brought in an inconvenient forum and any claim based on its immunity from suit.
Nothing in this Section 8.12(a) shall affect the right of any party hereto to
---------------
bring any action or proceeding against another or its property in the courts of
other jurisdictions.
(b) EACH PARTY WAIVES ITS RIGHTS TO A TRIAL BY JURY OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY EITHER PARTY AGAINST THE OTHER PARTY,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH PARTY
HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT
TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES HERETO FURTHER
AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION 8.12(b) AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH
SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS
AGREEMENT OR ANY PROVISIONS HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
8.13 No Bankruptcy Petition.
----------------------
(a) The Contributor, by entering into this Agreement, covenants
and agrees, to the extent permissible under applicable law, that it will not
solely in its capacity as a creditor of the Company institute against, or join
any other Person in instituting against, the Company any involuntary bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
involuntary proceedings (including, but not limited to, petitioning for the
declaration of the Company's assets en desastre) under any Applicable Insolvency
Laws; and
(b) Notwithstanding anything elsewhere herein contained, the
sole remedy of the Contributor or any other Person in respect of any obligation,
covenant, representation, warranty or agreement of the Company under or related
to this Agreement shall be against the assets of the Company. Neither the
Contributor nor any other Person shall have any claim against the Company to the
extent that such assets are insufficient to meet such obligation, covenant,
representation, warranty or agreement (the difference being referred to herein
as a "shortfall") and all claims in respect of the shortfall shall be
---------
extinguished.
8.14 Termination. This Agreement will terminate at such time as (a) the
-----------
commitment of the Company to accept a contribution of Receivables from the
Contributor hereunder shall have terminated and (b) all Receivables have been
collected, and the proceeds thereof turned over to the Company and all other
amounts owing to the Company hereunder shall have been paid in full or, if
Receivables have not been collected, such Receivables have become Defaulted
Receivables and the Company shall
38
have completed its collection efforts in respect thereto; provided, however,
-------- ------
that the indemnities of any Contributor to the Company set forth in this
Agreement shall survive such termination and provided further that, to the
-------- -------
extent any amounts remain due and owing to the Company hereunder, the Company
shall remain entitled to receive any Collections on Receivables which have
become Defaulted Receivables after it shall have completed its collection
efforts in respect thereof. Notwithstanding anything to the contrary contained
herein, if at any time, any payment made by the Contributor is rescinded or must
be restored or returned by the Company as a result of any Insolvency Event with
respect to the Contributor then the Contributor's obligations with respect to
such payment shall be reinstated as though such payment had never been made.
8.15 Responsible Officer Certificates; No Recourse. Any certificate
---------------------------------------------
executed and delivered by a Responsible Officer of the Contributor or the
Company pursuant to the terms of the Transaction Documents shall be executed by
such Responsible Officer not in an individual capacity but solely in his or her
capacity as an officer of the Contributor or the Company, as applicable, and
such Responsible Officer will not be subject to personal liability as to the
matters contained in the certificate. A director, officer, manager, employee, or
member or Shareholder, as the case may be, as such, of the Contributor or
Company shall not have liability for any obligation of the Contributor or the
Company hereunder or under any Transaction Document or for any claim based on,
in respect of, or by reason of, any Transaction Document, unless such claim
results from the gross negligence, fraudulent acts or willful misconduct of such
director, officer, employee, manager or member or Shareholder, as the case may
be.
8.16 Confidential Information.
------------------------
(a) Unless otherwise required by applicable law, and subject to
Subsection 8.16(b) below, each of the parties hereto undertakes to maintain the
------------------
confidentiality of this Agreement in its communications with third parties and
otherwise. None of the parties shall disclose to any person any information of
a confidential nature of or relating to either the Contributor, the Trustee or
Company, which such party may have obtained as a result of the Transaction (the
"Confidential Information"). For the avoidance of doubt, the Company shall
------------------------
restrict disclosure of Confidential Information to its officers, employees,
agents and advisers who need to receive such information to ensure the proper
functioning of the Transaction. The Trustee shall procure that such officers,
employees, agents and advisers shall keep confidential all of the Confidential
Information received; and
(b) The provisions of this Section 8.15(b) shall not apply:
---------------
(i) to the disclosure of any information which is or
becomes public knowledge otherwise than as a result of the
conduct of the recipient;
(ii) to the disclosure of Confidential Information to the
Trustee's assigns or the Rating Agencies (provided that such
39
information is disclosed subject to the condition that such party
will hold it confidential on the same basis);
(iii) to the disclosure of any information with the written
consent of the parties hereto;
(iv) to the disclosure of any information in response to
any order of any court or Governmental Authority; or
(v) to the disclosure of any information reasonably
required for the completion and filing of any financing
statements pursuant to Sections 2.01(c), 3.01(h), 4.01(d),
---------------- ------- -------
5.13(a) and 5.13(b).
------- -------
40
IN WITNESS WHEREOF, the parties hereto have caused this Contribution
Agreement to be executed by their respective officers thereunto duly authorized,
all as of the day and year first above written.
Huntsman Receivables Finance LLC,
as the Company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
Huntsman International LLC,
as the Contributor
By: /s/ J. ▇▇▇▇ ▇▇▇▇▇▇
Name: J. ▇▇▇▇ ▇▇▇▇▇▇
Title: Executive VP and CFO
i