EXHIBIT 10.27
U.S. RECEIVABLES PURCHASE AGREEMENT
HUNTSMAN INTERNATIONAL LLC,
as Purchaser
and
TIOXIDE AMERICAS INC.,
HUNTSMAN PROPYLENE OXIDE LTD.
and
HUNTSMAN INTERNATIONAL FUELS L.P.,
each as a Seller and an Originator
Dated as of December 21, 2000
TABLE OF CONTENTS
Page
1. DEFINITIONS........................................................... 1
1.01 Defined Terms................................................... 1
1.02 Other Definitional Provisions................................... 2
2. PURCHASE AND SALE OF RECEIVABLES...................................... 2
2.01 Purchase and Sale of Receivables................................ 2
2.02 Purchase Price.................................................. 5
2.03 Payment of Purchase Price....................................... 5
2.04 No Repurchase................................................... 5
2.05 Rebates, Adjustments, Returns, Reductions and Modifications..... 5
2.06 Payments in Respect of Ineligible Receivables and Originator
Indemnification Payments........................................ 6
2.07 Certain Charges................................................. 7
2.08 Certain Allocations............................................. 7
3. CONDITIONS TO SALES................................................... 8
3.01 Conditions Precedent to the Purchaser's Purchase of Receivables
on the Effective Date........................................... 8
3.02 Conditions Precedent to Purchase of Receivables................. 9
3.03 Conditions Precedent to the Originators' Obligations on the
Effective Date.................................................. 10
4. REPRESENTATIONS AND WARRANTIES........................................ 11
4.01 Representations and Warranties of the Originators............... 11
4.02 Representations and Warranties of the Originator Relating to the
Receivables..................................................... 15
4.03 Representations and Warranties of the Purchaser................. 17
5. AFFIRMATIVE COVENANTS................................................. 18
5.01 Financial Statements, Reports, etc.............................. 18
5.02 Compliance with Law and Policies................................ 19
5.03 Preservation of Corporate Existence............................. 19
5.04 Inspection of Property; Books and Records; Discussions.......... 19
5.05 Location of Records............................................. 19
5.06 Computer Files and other Documents.............................. 19
i
TABLE OF CONTENTS
(continued)
Page
5.07 Obligations..................................................... 20
5.08 Collections..................................................... 20
5.09 Furnishing Copies, Etc.......................................... 20
5.10 Responsibilities of the Originator as Local Servicer............ 20
5.11 Assessments..................................................... 21
5.12 Purchase of Receivables......................................... 21
5.13 Notices......................................................... 21
5.14 Bankruptcy...................................................... 21
5.15 Further Action.................................................. 21
5.16 Marking of Records.............................................. 22
5.17 Stamp Duty...................................................... 22
6. NEGATIVE COVENANTS.................................................... 22
6.01 Limitations on Transfers of Receivables, Etc.................... 23
6.02 Extension or Amendment of Receivables........................... 23
6.03 Change in Payment Instructions to Obligors...................... 23
6.04 Change in Name.................................................. 23
6.05 Policies........................................................ 23
6.06 Modification of Legend.......................................... 24
6.07 Accounting for Sales............................................ 24
6.08 Instruments..................................................... 24
6.09 Ineligible Receivables.......................................... 24
6.10 Business of the Originator...................................... 24
6.11 Limitation on Fundamental Changes............................... 24
6.12 Offices......................................................... 25
6.13 Constitutive Documents.......................................... 25
6.14 Amendment of Transaction Documents or Other Material
Documents....................................................... 25
7. TERMINATION EVENTS.................................................... 25
7.01 Originator Termination Events................................... 25
7.02 Program Termination Events...................................... 27
ii
TABLE OF CONTENTS
(continued)
Page
7.03 Remedies........................................................ 27
8. MISCELLANEOUS......................................................... 29
8.01 Payments........................................................ 29
8.02 Costs and Expenses.............................................. 29
8.03 Successors and Assigns.......................................... 30
8.04 Additional Originators.......................................... 30
8.05 Intentionally Omitted........................................... 32
8.06 Intentionally Omitted........................................... 32
8.07 Governing Law................................................... 32
8.08 No Waiver; Cumulative Remedies.................................. 32
8.09 Amendments and Waivers.......................................... 32
8.10 Severability.................................................... 32
8.11 Notices......................................................... 32
8.12 Counterparts.................................................... 34
8.13 Submission to Jurisdiction; Service of Process.................. 34
8.14 No Bankruptcy Petition.......................................... 35
8.15 Termination..................................................... 35
8.16 Responsible Officer Certificates; No Recourse................... 35
SCHEDULES
Schedule 1 Form of Originator Daily Report
Schedule 2 Form of Solvency Certificate
Schedule 3 Location of Books and Records
Schedule 4 Chief Executive Office
Schedule 5 Legal and Other Business Names
Schedule 6 Identification of (A) Company Concentration Accounts,
(B) Series Concentration Accounts, (C) Collection Accounts
and Master Collection Accounts, and (D) Company Receipts
Accounts
Schedule 7 Form of Admission of Additional Originator
iii
RECEIVABLES PURCHASE AGREEMENT dated as of December 21, 2000 (this
"Agreement"), among Huntsman International LLC, a limited liability company
---------
organized under the laws of the State of Delaware, as purchaser (the
"Purchaser"), Tioxide Americas Inc., a company incorporated under the laws of
---------
the Cayman Islands, Huntsman Propylene Oxide Ltd., a limited partnership
organized under the laws of Texas, Huntsman International Fuels L.P., a limited
partnership organized under the laws of Texas each as a seller and an originator
(collectively, the "Originators").
-----------
W I T N E S S E T H:
WHEREAS, the parties are entering into this Agreement under which each
of the Originators desires to sell, transfer, convey and assign from time to
time, all of its right, title and interest in, to and under Receivables
originated by such Originator, now existing and hereafter arising from time to
time and all other Receivable Assets related to such Receivables to the
Purchaser;
WHEREAS, Huntsman ICI (Europe) BVBA, as the Master Servicer (the
"Master Servicer"), Huntsman Receivables Finance LLC (the "Company") and Chase
---------------
Manhattan Bank (Ireland) plc, not in its individual capacity but solely as
trustee, as Trustee (the "Trustee"), have 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 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
Purchaser, 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 service and administer 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:
1. DEFINITIONS
-----------
1.01 Defined Terms. Capitalized terms used herein shall, unless otherwise
-------------
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.
-----------------------------
(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
Originator and the Purchaser, 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
------
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 interpreted as if followed, in each case, by the phrase "without limitation".
------------------
(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. PURCHASE AND SALE OF RECEIVABLES
---------------------------------
2.01 Purchase and Sale of Receivables.
--------------------------------
(a) Subject to the terms and conditions of this Agreement
(including Article III), each of the Originators shall sell, transfer, assign,
and convey, without recourse (except as expressly provided herein), to the
Purchaser, all of its present and future right, title and interest in, to and
under:
2
(i) Receivables originated by such Originator from
time to time prior to but not including the date on which
an Early Originator Termination occurs pursuant to and as
indicated in the respective Originator Daily Report and
delivered or transmitted electronically or by telecopier
to the Purchaser on the applicable date of sale;
(ii) the Related Property;
(iii) all Collections in respect of the Receivables;
(iv) all rights (including rescission, replevin or
reclamation) of such Originator relating to any
Receivable or arising therefrom; and
(v) 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 (v) shall
be referred to collectively herein as the "Receivable Assets" and shall be
-----------------
considered to be assets that have been sold, transferred, assigned, set over and
otherwise conveyed by the applicable Originator to the Purchaser upon the
delivery to the Purchaser and acceptance by the Purchaser of the applicable
Originator Daily Report (which Originator Daily Report shall not be signed by or
on behalf of the Purchaser or any of the Originators provided that such
Originator Daily Report shall be deemed accepted unless expressly rejected by
the Purchaser in writing on the date of the delivery of the applicable
Originator Daily Report to the Purchaser) (such date of acceptance hereinafter
referred to as the "Sale Date").
---------
(b) Each of the Originators and the Purchaser hereby acknowledge
and agree that it is their mutual intent that (a) every transfer of Receivable
Assets to the Purchaser 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 Purchaser, (b) the Originators shall not retain any interest in the
Receivable Assets after the sale thereof hereunder, and (c) the Receivables
originated by each 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 indebtedness
of such Originator, such Originator shall be deemed to have granted to the
Purchaser a first priority perfected 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
such Originator and the other Receivable Assets related to
3
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
sale pursuant to subsection 2.01(a), each Originator hereby agrees to 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 sale of such
Receivables and any other Receivable Assets related to such Receivables to the
Purchaser, and to deliver to the Purchaser (a) on or prior to the Effective Date
a photocopy, certified by a Responsible Officer of such Originator to be a true
and correct copy, of each such financing statement or other filing to be made on
or prior to the Effective Date and (b) within ten (10) days after the Effective
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
sale pursuant to subsection 2.01(a), each Originator agrees at its own expense,
------------------
with respect to the Receivables, that it will, as agent of the Purchaser, (A)
(i) on the Effective Date and thereafter, 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 sold to the Purchaser in accordance with
this Agreement and (ii) acknowledge, deliver or transmit or cause to be
delivered or transmitted to the Company and Master Servicer 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 sale and (B) to (i) on the
Effective Date and thereafter, to identify on it 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 sold to the Purchaser in accordance with this Agreement and (ii)
acknowledge, deliver or transmit or cause to be delivered or transmitted to the
Purchaser and the Master Servicer 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 sale.
(e) All Receivables purchased by the Purchaser hereunder shall
be without recourse to, or any representation or warranty of any kind (express
or implied) by, the Originators except as otherwise specifically provided
herein. The foregoing sale, assignment, transfer and conveyance does not
constitute and is not intended to result in
4
the creation or assumption by the Originators of any obligation of the
Originators or any other person in connection with the Receivables or any
agreement or instrument relating thereto, including any obligation any Obligor.
2.02 Purchase Price. The aggregate purchase price payable by the Purchaser
--------------
to an Originator (the "Originator Purchase Price") for Receivables and other
-------------------------
Receivable Assets on any Seller Payment Date under this Agreement shall be equal
to the product of (i) the aggregate outstanding Principal Amount of Eligible
Receivables as set forth in the applicable Originator Daily Report and (ii) one
(1) minus the Discounted Percentage.
2.03 Payment of Purchase Price. Purchaser shall pay the Originator
-------------------------
Purchase Price for each Receivable and other Receivable Assets (net of the
deductions referred to in Section 2.03(b)) on each date of sale related to such
purchased Receivable (each such day, an "Originator Payment Date").
(a) The Originator Purchase Price (net of the deductions
referred to in Section 2.03(b)) shall be paid by Purchaser to the applicable
Originator or to such accounts or such Persons as the applicable Originator may
direct in writing (which direction may consist of standing instructions provided
by the applicable Originator that shall remain in effect until changed by the
applicable Originator in writing), on each Originator Payment Date.
(b) The Purchaser shall deduct from the Originator Purchase
Price otherwise payable to the Originator on any Originator Payment Date, any
Originator Dilution Adjustment Payments, Originator Adjustment Payments or
Originator Indemnification Payments pursuant to Section 2.05, 2.06(a) or
2.06(b), respectively.
(c) All cash payments under this Agreement shall be made
not later than 3:30 p.m. London time on the date specified therefor in same day
funds.
(d) Whenever 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.
2.04 No Repurchase. Subject to Section 2.06, the Originators shall not
------------- ------------
have any right or obligation under this Agreement, by implication or otherwise,
to repurchase from the Purchaser 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 sale relating thereto; provided that the foregoing
--------
shall not be interpreted to limit the right of the Purchaser to receive an
Originator Dilution Adjustment Payment, an Originator Adjustment Payment or an
Originator Indemnification Payment.
2.05 Rebates, Adjustments, Returns, Reductions and Modifications.
-----------------------------------------------------------
From time to time the Originators may make a Dilution Adjustment to a Receivable
in accordance
5
with this Section 2.05 and Section 6.02; provided that if an Originator cancels
------------ ------------ --------
an invoice related to such Receivable, either (i) such invoice must be replaced,
or caused to be replaced, by such Originator 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 such Originator with an invoice relating to the same
transaction of a lesser Principal Amount on the same Business Day that such
cancellation was made and such Originator must make an Originator Dilution
Adjustment Payment, to the Purchaser, in an amount equal to the difference
between such cancelled and replacement invoices or (iii) such Originator must
make an Originator Dilution Adjustment Payment, to the Purchaser in an amount
equal to the full value of such cancelled invoice pursuant to this Section 2.05.
------------
The Originators agree to pay to the Purchaser, on the Sale Date immediately
succeeding the date any Dilution Adjustment is granted or made pursuant hereto,
the amount of any such Dilution Adjustment (an "Originator Dilution Adjustment
------------------------------
Payment"). The amount of any Dilution Adjustment shall be set forth in the first
-------
Originator 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
------------------------------------------------------------
Indemnification Payments.
------------------------
(a) Adjustment Payment Obligation. In the event of a breach of
-----------------------------
any of the representations and warranties contained in Sections 4.02(a),
----------------
4.02(b), 4.02(c), 4.02(d) or 4.02(f) in respect of any Receivable sold hereunder
------- ------ ------- -------
or if the Purchaser's interest in any Receivable is not a full legal and
beneficial ownership, the respective Originator shall, within 30 days of the
earlier of its knowledge or receipt of written notice of such breach or defect
from the Purchaser, 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, such Originator upon request of the Purchaser shall repurchase the
relevant Receivable from the Purchaser at a repurchase price (without
duplication of any Originator Dilution Adjustment Payments made pursuant to
Section 2.05 hereof), equal to the original Principal Amount of such Receivable
------------
less Collections received by the Purchaser in respect of such Receivable (the
"Originator Adjustment Payment"), which payment shall be in the same currency as
-----------------------------
such Receivable. Upon the payment of an Originator Adjustment Payment hereunder,
the Purchaser shall automatically agree to pay to such Originator 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 any Originator contained in Section
-------
4.02(a), 4.02(b) or 4.02(c) in respect of or concerning any Receivable, the
------- ------- -------
respective Originator's obligation to pay the Originator Adjustment Payment
under this Section 2.06 is a reasonable pre-estimate of loss and not a penalty
------------
(and neither the Purchaser nor any other person or entity having an interest in
this Agreement through the Purchaser shall be entitled to any other remedies as
a consequence of any such breach).
(b) Special Indemnification. In addition to its obligations
-----------------------
under Section 8.02 hereunder, each Originator agrees to pay, indemnify and hold
------------
harmless
6
(without duplication of any Originator Dilution Adjustment Payments made
pursuant to Section 2.05 hereof) the Purchaser from any loss, liability,
------------
expense, damage or injury which may at any time be imposed on, incurred by or
asserted against the Purchaser 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) such Originator breaching any covenant
contained herein with respect to any Receivable (each of the foregoing events or
circumstances being an "Originator Indemnification Event", and such Receivable
--------------------------------
(or a portion thereof) ceasing to be an Eligible Receivable on the date on which
such Originator Indemnification Event occurs. The amount of such indemnification
shall be equal to the original Principal Amount of such Receivable less
Collections received by the Purchaser in respect of such Receivable (the
"Originator Indemnification Payment"). Such payment shall be made on or prior to
----------------------------------
the 10th Business Day after the day the Purchaser requests such payment or such
Originator obtains knowledge thereof unless such Originator Indemnification
Event shall have been cured on or before such 10th Business Day; provided,
--------
however, that in the event that (x) an Originator Termination Event with respect
-------
to an Originator has occurred and is continuing or (y) the Purchaser shall be
required to make a payment with respect to such Receivable pursuant to Section
-------
2.05 of the Pooling Agreement and the Purchaser has insufficient funds to make
----
such a payment, such Originator shall make such payment immediately. The
Purchaser shall have no further remedy against such Originator in respect of
such an Originator Indemnification Event unless such Originator fails to make an
Originator 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 an Originator Indemnification Payment, the Purchaser shall
-------
automatically agree to pay to such Originator all Collections received
subsequent to such payment with respect to the Receivable in respect of which an
Originator Indemnification Payment is made.
(c) The Originators shall from time to time on demand pay
to the Purchaser an amount equal to the amount (if any) of funds required to be
paid or deposited by the Purchaser in respect of Stamp Duty pursuant to Sections
2.07(q) through 2.07(t) of the Pooling Agreement.
2.07 Certain Charges. Each Originator and the Purchaser hereby agree that
---------------
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 Purchaser notwithstanding the occurrence of an Early Originator
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 sold to the Purchaser pursuant to subsection 2.01(a)
------------------
hereof.
2.08 Certain Allocations. Each Originator, as Local Servicer, hereby
-------------------
agrees that if such Originator 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 such Originator cannot
-------- -------
attribute a Collection to a specific Receivable, then such Collection shall be
applied to pay the Receivables of such Obligor
7
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.
3. CONDITIONS TO SALES
-------------------
3.01 Conditions Precedent to the Purchaser's Purchase of Receivables on the
----------------------------------------------------------------------
Effective Date. The obligation of the Purchaser to purchase Receivables and the
--------------
other Receivable Assets related to such Receivables on the Effective Date is
subject to the satisfaction of the following conditions precedent which shall
have been satisfied, on or prior to the Effective Date:
(a) the Purchaser shall have received copies of duly adopted
resolutions (or, if applicable, a unanimous consent) of the Board of Directors
or the members, as the case may be of the Originators, as in effect on such
Effective Date, authorizing the execution of this Agreement and the consummation
of the Transactions pursuant to the Transaction Documents;
(b) the Purchaser shall have received copies of a Certificate
of Good Standing for each Originator issued by the Secretary of State of such
Originator's state of incorporation or formation;
(c) the Purchaser shall have received copies of a certificate
of a Responsible Officer of each Originator certifying (i) the names and
signatures of the officers 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 such Originator's certificate
of incorporation or formation, as the case may be and by-laws, and (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 Purchaser shall have received copies of fully executed
counterparts of this Agreement and each other Transaction Document;
(e) the Purchaser 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 Purchaser
and the Trustee from Counsel to each Originator in form and
substance satisfactory to the Trustee and the Funding Agent;
(ii) the Rating Agencies, the Funding Agent, the Purchaser
and the Trustee from ▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special
New York counsel for the Originators and the
8
Purchaser, in form and substance satisfactory to the Trustee and
the Funding Agent; and
(f) the Purchaser shall have received a legal opinion, dated
the Effective Date and addressed to the Trustee, the Funding Agent, the Rating
Agencies, and the Purchaser from ▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special New
York counsel for Originators, in form and substance satisfactory to the Trustee
and the Funding Agent, opining that, as a result of the transactions
contemplated by this Agreement, a bankruptcy court would not hold that the
Receivables and/or Receivable Assets would be the property of the Originators or
the Originators' bankruptcy estate under Section 541 of the Bankruptcy Code;
(g) the Purchaser shall have received, to the extent in
writing, the Policies of the Originators;
(h) the Purchaser shall have received copies of proper
financing statements (Form UCC-1), which will be filed on or prior to the
Effective Date naming each Originator as the debtor in favor of, in each case,
the Purchaser as the secured party or other similar instruments or documents as
may be necessary or in the reasonable opinion of the Purchaser desirable under
the UCC of all appropriate jurisdictions to perfect the Purchaser's ownership
interest in all Receivables and other Receivable Assets sold hereunder;
(i) the Purchaser 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 any Originator (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 Purchaser shall have received a solvency certificate
delivered by each Originator with respect to such Originator's solvency in the
form of Schedule 2 hereto;
----------
(k) the Purchaser shall be satisfied that the Originators'
systems, procedures and record keeping relating to the Receivables are
sufficient and satisfactory in order to permit the sale, assignment, transfer
and conveyance of such Receivables and the administration of such Receivables in
accordance with the terms and intent of this Agreement; and
(l) the Purchaser shall have received such other approvals,
opinions or documents as the Purchaser may reasonably request.
9
3.02 Conditions Precedent to Purchase of Receivables. The obligation of the
-----------------------------------------------
Purchaser to purchase Receivables and other Receivable Assets on each Sale Date
(including the Effective Date) is subject to the satisfaction of the following
conditions precedent, that, on and as of the related Originator Date, the
following statements shall be true with respect to the Receivables originated by
such Originator (and the delivery by such Originator of the Originator Daily
Report for such Receivable on such Sale Date shall constitute a representation
and warranty by such Originator that on such Sale Date the statements in clauses
(a) and (b) below are true with respect to the Receivables originated by such
Originator):
(a) the representations and warranties of such Originator
contained in Sections 4.01 shall be true and correct on and as of such Sale 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 sale, no Originator Termination
Event or Potential Originator Termination Event with respect to such Originator
shall have occurred and be continuing;
(c) such Originator shall have delivered or transmitted via
telecopy to the Purchaser, with respect to the Receivables, an Originator Daily
Report with respect to Receivables sold by it to the Purchaser and originated by
it, reasonably acceptable to the Purchaser and the Funding Agent showing, as of
such Sale Date, at least the information specified in Schedule 1 as to the
----------
Receivables to be sold, assigned, transferred and conveyed on such Sale Date;
(d) since the Effective Date, no material adverse change has
occurred in the overall rate of collection of the Receivables; and
(e) the Purchaser shall have received such other approvals,
opinions or documents as the Purchaser may reasonably request;
provided, however, that the failure of such Originator to satisfy any of the
-------- -------
foregoing conditions shall not prevent such Originator 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 Originators' Obligations on the Effective
---------------------------------------------------------------------
Date. The obligations of the Originators on the Effective Date shall be subject
----
to the conditions precedent, which may be waived by the Originators, that the
Originators shall have received on or before the Effective Date the following,
each dated the Effective Date and in form and substance satisfactory to the
Originators:
(a) a Certificate of Good Standing for the Purchaser issued by
the Secretary of State of Delaware, and certificates of qualification as a
foreign limited
10
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 Purchaser
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
Purchaser'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 managers of the Purchaser, 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 Originators. Each Originator
-------------------------------------------------
represents and warrants to the Purchaser as of the Effective Date that:
(a) Organization; Powers. It (i) is an entity duly incorporated or
--------------------
formed, as the case may be, validly existing and in good standing under the laws
of its respective jurisdiction, (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
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 each
-------------
Originator 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
11
(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 each Originator and constitutes a legal, valid and binding
obligation of each Originator enforceable against each Originator 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 Purchaser'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 such Originator, threatened against such
Originator in respect of which 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) It is not 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) It is not 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
12
default could reasonably be expected to result in a Material Adverse
Effect with respect to it.
(g) Federal Reserve Regulations. It is not 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 such Originator 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;
(ii) No Reportable Event has occurred as to which such
Originator 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 such Originator 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
13
(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, no Originator will 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 Purchaser's ownership interest in the Receivables and the other Receivable
Assets related thereto. Each Originator intends to treat the sale and conveyance
of the Receivables sold hereunder to the Purchaser as a sale 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) Chief Executive Office. The offices at which each Originator
----------------------
keeps its records concerning the Receivables either (x) are located as set forth
on Schedule 3 hereto or (y) are in locations as to which each Originator has
----------
notified the Purchaser of the location thereof in accordance with Section 5.06.
------------
The chief executive office of each Originator is set forth on Schedule 4 and is
----------
the place where the Originator 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 Purchaser in the Receivables sold hereunder, and there have been
no other such locations during the four months preceding the date of this
Agreement.
(n) Bulk Sales Act. No transaction contemplated hereby with respect
--------------
to any Originator requires compliance with, or will be subject to avoidance
under, any bulk sales act or similar law in the United States.
(o) Names. The legal name of each Originator is as set forth in this
-----
Agreement. No Originator has trade names, fictitious names, assumed names or
"doing business as" names except as set forth on Schedule 5.
----------------- ----------
(p) Solvency. No Insolvency Event with respect to any Originator has
--------
occurred and the sale, assignment, conveyance and transfer of the Receivables by
each Originator to the Purchaser 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 each
Originator, taken individually at a fair valuation, will exceed the debts and
liabilities, subordinated, contingent or otherwise, of each Originator, as
applicable; (ii) the present fair saleable value of the property of 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
14
each Originator, as applicable, on its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (iii) each Originator will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (iv) each Originator 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. No
Originator intends to, nor does it believe that it will incur debts beyond its
ability to pay such debts as they mature, taking into account the timing of and
amounts of cash to be received by each Originator and the timing of the amounts
of cash to be payable on or in respect of its Indebtedness.
(q) No Originator Termination Event. As of the Effective Date, no
-------------------------------
Potential Originator Termination Event or Originator Termination Event with
respect to any Originator has occurred and is continuing.
(r) No Program Termination Event. As of the Effective Date, no
----------------------------
Potential Program Termination Event or Program Termination Event shall have
occurred and be continuing.
(s) 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 sold hereunder.
(t) Collection Procedures. It has in place the Policies and has not
---------------------
acted in contravention of any such Policies with respect to the Receivables.
(u) No Early Amortization Event. No Early Amortization Event or
---------------------------
Potential Early Amortization Event has occurred and is continuing.
(v) No Material Adverse Effect. Since the Effective Date, no event has
--------------------------
occurred which has had a Material Adverse Effect with respect to it.
The representations and warranties as of the date made set forth in
this Section 4.01 shall survive the transfer, assignment, conveyance and sale of
------------
the Receivables and the other Receivable Assets to the Purchaser. Upon
discovery by a Responsible Officer of the Purchaser or the Master Servicer or by
a Responsible Officer of an Originator 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.
15
4.02 Representations and Warranties of the Originator Relating to the
----------------------------------------------------------------
Receivables. Each Originator hereby represents and warrants to the Purchaser on
-----------
each Sale Date with respect to the Receivables originated by it, being sold,
transferred, assigned and conveyed to the Purchaser as of such date:
(a) Receivables Description. The Originator Daily Report
-----------------------
delivered or transmitted pursuant to subsection 2.01(a) sets forth in all
-----------------
material respects an accurate and complete listing of all Receivables related
thereto aggregated by Obligor, to be sold, transferred, assigned and conveyed to
the Purchaser on such Sale 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 Effective Date or,
--------
in the case of Receivables sold, transferred, assigned and conveyed to the
Purchaser after the Effective Date, on the date that each such Receivable shall
have been sold, transferred, assigned and conveyed to the Purchaser, has been
sold, transferred, assigned and conveyed to the Purchaser free and clear of any
Liens, except for Permitted Liens and Trustee Liens.
(c) Eligible Receivable. On the Effective Date, each Receivable
-------------------
that is represented to be an Eligible Receivable on such date on the Originator
Daily Reports is an Eligible Receivable on the Effective Date and, in the case
of Receivables sold, transferred, assigned and conveyed to the Purchaser after
the Effective Date, each such Receivable that is represented to be an Eligible
Receivable sold, transferred, assigned and conveyed to the Purchaser on such
Sale Date is an Eligible Receivable on such Sale 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 Purchaser on the applicable Sale
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 Sale. Title to each Receivable sold, assigned, conveyed
---------
and transferred hereunder will be vested in the Purchaser as described in
clauses (b) and (d) above, and such Receivables will not form part of the estate
of any Originator upon a bankruptcy of such Originator.
The representations and warranties as of the date made set forth in
this Section 4.02 shall survive the sale, transfer, assignment and conveyance of
------------
the Receivables and other Receivable Assets to the Purchaser. Upon discovery by
a
16
Responsible Officer of the Purchaser or the Master Servicer or a Responsible
Officer of an Originator 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 Sale
------------------
Date), the party discovering such breach shall give prompt written notice to the
other parties.
4.03 Representations and Warranties of the Purchaser. The Purchaser
-----------------------------------------------
represents and warrants as to itself as follows:
(a) Organization; Powers. The Purchaser (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 Purchaser 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 or (2) any provision of any
Transaction Document or any other material Contractual Obligation to which the
Purchaser 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 Purchaser and constitutes, a legal, valid and binding
obligation of the Purchaser enforceable against the Purchaser 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 Purchaser will not prepare any financial statements that
shall account
17
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 Purchaser's ownership interest in the Receivables.
5. AFFIRMATIVE COVENANTS
---------------------
Each Originator hereby agrees that, so long as there are any
amounts outstanding with respect to Receivables or until an Early Originator
Termination, whichever is later, such Originator shall:
5.01 Financial Statements, Reports, etc.:
-----------------------------------
(a) Furnish to the Purchaser, 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 such
Originator as of the close of such fiscal year and the results of its operations
during such year, all audited by such Originator'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 such Originator in accordance with GAAP consistently
applied;
(b) Furnish to the Purchaser, within 60 days after the end
of each of the first three fiscal quarters of each fiscal year, such
Originator'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 such
Originator;
(c) Furnish to the Purchaser, together with the financial
statements required pursuant to clauses (i) and (ii) above, a compliance
certificate signed by a Responsible Officer of such Originator stating that (x)
the attached financial statements have been prepared in accordance with GAAP and
accurately reflect the financial condition of such Originator 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 Purchaser copies of all financial
statements, financial reports and proxy statements so furnished;
(e) Furnish to the Purchaser, promptly, all information,
documents, records, reports, certificates, opinions and notices requested in
connection with the execution and delivery of any Receivables Purchase
Agreement; and
(f) Furnish to the Purchaser, promptly, from time to time,
such historical information, including aging and liquidation schedules, in form
and substance
18
satisfactory to the Funding Agent and the Rating Agencies, as the Purchaser may
reasonably request; and
(g) Furnish to the Purchaser, promptly, from time to time, such
other information regarding the operations, business affairs and financial
condition of such Originator, or compliance with the terms of any Transaction
Document, in each case as the Purchaser 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.
(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 Corporate Existence. (i) Preserve and maintain
-----------------------------------
its business 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 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 Purchaser 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 such
Originator's security and confidentiality requirements and to discuss the
business, operations, properties and financial condition of such Originator with
officers and employees of such Originator and with its Independent Public
Accountants.
5.05 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 for it on Schedule 3 and Schedule 4
---------- ----------
hereto or upon 60 days' prior written notice to the Purchaser, 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.
5.06 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 retain
copies of all documents
19
relating to each Obligor as custodian and agent for the Purchaser and other
Persons with interests in the Receivables originated by it, as well as retain
all Originator Documents.
5.07 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 such Originator. Defend the right,
title and interest of the Purchaser 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 such Originator.
Each Originator 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 Purchaser in such Receivable.
5.08 Collections. Instruct each Obligor to make payments in respect
-----------
of its Receivables to the Collection Account and to comply in all material
respects with procedures with respect to Collections reasonably specified from
time to time by the Purchaser. In the event that any payments in respect of any
such Receivables are made directly to an Originator (including, without
limitation, any employees thereof or independent contractors employed thereby),
such Originator shall within one (1) Local Business Day of receipt thereof,
deliver or deposit such amounts to the Collection Account and, prior to
forwarding such amounts, such Originator shall hold such payments in trust for
the account and benefit of the Purchaser.
5.09 Furnishing Copies, Etc. Furnish to the Purchaser (subject to
-----------------------
Section 8.15 hereof):
------------
(a) within five (5) Local Business Days of the Purchaser's
request, a certificate of a Responsible Officer of such Originator, 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 such Originator
obtains knowledge of the occurrence of any Originator Termination Event or
Potential Originator Termination Event, written notice thereof;
(c) promptly following request therefor, such other
information, documents, records or reports regarding or with respect to the
Receivables of such Originator, as the Purchaser 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 Originator Daily
Report or Monthly Settlement Report was not an Eligible Receivable as of the
date provided therefor, written notice of such determination.
20
5.10 Responsibilities of the Originator as Local Servicer.
----------------------------------------------------
Notwithstanding anything herein to the contrary, (i) each Originator, 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 sold, assigned, transferred and conveyed to the
Purchaser hereunder, (ii) the exercise by the Purchaser of any of its rights
hereunder shall not relieve any Originator of its obligations with respect to
such Receivables and (iii) except as provided by law, the Purchaser shall not
have any obligation or liability with respect to any Receivables, nor shall the
Purchaser be obligated to perform any of the obligations or duties of any
Originator.
5.11 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 such Originator has set aside on its books
adequate reserves.
5.12 Purchase of Receivables. Purchase Receivables solely in
-----------------------
accordance with the Receivables Purchase Agreements or this Agreement.
5.13 Notices. Promptly give written notice to the Trustee, each
-------
Rating Agency, the Purchaser 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 such Originator setting forth the details
of such Early Amortization Event or Potential Early Amortization Event and the
action taken, or which such Originator proposes to take, with respect thereto;
5.14 Bankruptcy. Cooperate with the Purchaser, 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 economic
substance of the transaction contemplated by the Transaction Documents on the
Effective Date.
5.15 Further Action. In addition to the foregoing:
--------------
(a) Each Originator 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 Purchaser in the Receivables) that may be necessary in such Originator's
reasonable judgment or that the Purchaser may reasonably request, in order to
protect the Purchaser's right, title and interest in the Receivables, or to
enable the Purchaser to exercise or enforce any of its rights in respect
21
thereof. Without limiting the generality of the foregoing, each Originator will,
upon the request of the Purchaser (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 Purchaser, advisable to
protect the Purchaser's ownership interest in the Receivables and (ii) obtain
the agreement of any Person having a Lien on any Receivables owned by such
Originator (other than any Lien created or imposed under the Pooling Agreement
or any Permitted Lien) to release such Lien upon the sale, assignment, transfer
and conveyance of any such Receivables to the Purchaser.
(b) Until the termination of this Agreement, each
Originator hereby irrevocably authorizes the Purchaser 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, sold, assigned, conveyed or transferred or to
be sold, assigned, conveyed or transferred by such Originator without the
signature of such Originator to the extent permitted by applicable law.
(c) If any Originator fails to perform any of its
agreements or obligations under this Agreement, following notice to such
Originator detailing such delinquency, the Purchaser may (but shall not be
required to) perform, or cause performance of, such agreements or obligations,
and the expenses of the Purchaser incurred in connection therewith shall be
payable by such Originator as provided in Section 9.02. The Purchaser agrees
promptly to notify such Originator after any such performance; provided,
however, that the failure to give such notice shall not affect the validity of
any such performance.
5.16 Marking of Records. Each Originator will maintain a system that
------------------
will identify on its extraction records relating to the Receivables from its
master database of receivables that the Receivables have been sold, assigned,
conveyed or transferred to the Purchaser. Each Originator agrees that from time
to time it will promptly execute and deliver all instruments and documents, and
take all further action, that Purchaser may reasonably 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.
5.17 Stamp Duty.
----------
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.
6. NEGATIVE COVENANTS
------------------
Except as otherwise provided in Section 6.11, each Originator
------------
hereby agrees that, so long as there are any amounts outstanding with respect to
Receivables originated by such Originator, previously sold, assigned, conveyed
or transferred by such
22
Originator to the Purchaser or until an Early Originator Termination, whichever
is the later, such Originator shall not:
6.01 Limitations on Transfers of Receivables, Etc. At any time sell,
---------------------------------------------
convey, assign, transfer or otherwise 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, 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 such Originator and the related Obligor with
respect to such Receivable provided, that in the event such Originator cancels
--------
an invoice related to a Receivable, such Originator must make an Originator
Dilution Adjustment Payment in accordance with Section 2.05; provided, further
------------ -------- -------
that in the event such 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 day, (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 such Originator must make an Originator Dilution
Adjustment Payment, to the Purchaser, in an amount equal to the difference
between such cancelled and replacement invoices or (iii) the Originator must
make an Originator Dilution Adjustment Payment, to the Purchaser, 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
------------------------------------------
of any Receivables to make any payments with respect to any Receivables other
than, in accordance with Section 5.09, by check or wire transfer to the
------------
Collection Account.
6.04 Change in Name. Change its name, use an additional name, change
--------------
its identity or business 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 Purchaser such documents, instruments or agreements as are necessary to
reflect such change and to continue the perfection of the Purchaser'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
-------
23
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 not 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
----------------------
identification on the extraction records referred to in subsection 2.01(d).
------------------
6.07 Accounting for Sales. 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 sale of the Receivables to the
Purchaser 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 a sale of the Receivables to the
Purchaser.
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 Purchaser, take any action which to its knowledge would cause, or would
permit, a Receivable that was designated as an Eligible Receivable on the Sale
Date relating to such Receivable to cease to be an Eligible Receivable, except
as otherwise expressly provided by this Agreement.
6.10 Business of the Originator. Fail 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 such Originator
and its consolidated Subsidiaries (taken as a whole) to another Person or
liquidate or dissolve unless:
(a) either (i) such Originator 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 such
Originator, the performance of each covenant and obligation of such Originator
hereunder and (B) no Material Adverse Effect with respect to it shall result
from such merger, consolidation, sale, lease, transfer or disposal of assets;
24
(b) subject to Section 8.15 hereof, it has delivered to the
Trustee a certificate executed by a Responsible Officer of such Originator
addressed to the Trustee (i) stating that such consolidation, merger, conveyance
or transfer complies with this Section 6.11 and (ii) further stating in the
Responsible Officer's certificate that 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 sale of
Receivables to the Purchaser by such Surviving Person, after the date of such
merger, consolidation, sale, lease, transfer or disposal of assets, shall be
treated as a "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 such Originator'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 Purchaser, 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 by the
Purchaser or hereafter created.
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, such Originator
------------
may make amendments, changes or modifications pursuant to changes in law of the
jurisdiction of its organization or amendments to change such Originator'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.
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 any Originator:
25
(a) an Originator 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 such Originator 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 such Originator by the
Company, the Purchaser or the Trustee or (B) to the Purchaser, to the Company,
to the Trustee and to such Originator by holders of Investor Certificates
evidencing 25% or more of the Aggregate Invested Amount; or
(b) an Originator 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 such Originator by the Purchaser, the
Company or the Trustee or (B) to the Purchaser, to the Company, to the Trustee
and to such Originator by holders of Investor Certificates evidencing 25% or
more of the Aggregate Invested Amount, provided that if such failure may be
--------
cured and such Originator is diligently pursing such cure, such event shall not
constitute an Originator Termination Event for an additional thirty (30) days;
or
(c) any representation or warranty made by such Originator 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 such Originator by the Purchaser, the Company or the Trustee or (B)
to the Purchaser, to the Company, to the Trustee and to such Originator by
holders of Investor Certificates evidencing 25% or more of the Aggregate
Invested Amount, provided that if such incorrectness may be cured and such
--------
Originator 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 such Originator shall have complied with
------------
the provisions of Section 2.06 in respect thereof; or
------------
(d) an Originator has been terminated as Local Servicer with respect
to the Receivables originated by it, and not replaced as a Local Servicer by an
affiliate of Huntsman International, following a Master Servicer Default under
the Servicing Agreement,
then, in the case of any Originator Termination Event, so long as such
Originator Termination Event shall be continuing, the Purchaser shall terminate
its obligation to accept a sale of Receivables from such Originator and such
Originator shall be terminated as an Originator upon 10 days written notice (the
date on which such notice becomes effective, the "Originator Termination Date")
---------------------------
to such Originator (any such termination,
26
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 with respect to an Originator:
(a) an Insolvency Event shall have occurred with respect to an
Originator; or
(b) there shall have occurred and be continuing (i) an Early
Amortization Event set forth in Section 7.01 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
an Originator 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 an Originator
unless there shall have been delivered to the Trustee and the Rating Agencies
proof of release of such Lien; or
(e) any Originator Termination Event shall have occurred and be
continuing 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
Purchaser to accept sales shall terminate without notice (such date of
termination, the "Program Termination Date"), 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 Event or Program Termination
Event has occurred and is continuing, the Purchaser (and its assignees) shall
have all of the rights and remedies provided to an owner of accounts under
applicable law in respect thereto.
27
(b) Each Originator agrees that, upon the occurrence and during
the continuation of Program Termination Event as described in subsection 7.02(a)
------------------
or (b)(i):
---------
(i) the Purchaser (and its assignees) shall have the
right at any time to notify, or require that such Originator, at
its expense, notify, the respective Obligors of the Company's
ownership of 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 current
Concentration Accounts;
(ii) the Purchaser (and its assignees) shall have the
right to (A) ▇▇▇ for collection on any Receivables or (B) sell
any Receivables to any Person for a price that is acceptable to
the Purchaser. If required by the applicable UCC (or analogous
provisions of any other similar law, statute or legislation
applicable to the Receivables), the Purchaser (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) such Originator in such capacity or in its
capacity as Local Servicer, shall, upon the Purchaser's (or its
assignees') written request and at such Originator'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 Purchaser or its designee at a place
designated by the Purchaser. In recognition of each Originator's
need to have access to any Originator Documents which may be
transferred to the Purchaser 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 Purchaser hereby grants to each Originator a
license to access the Originator Documents transferred by such
29
Originator to the Purchaser and to access any such transferred
computer software in connection with any activity arising in the
ordinary course of such Originator's business or in performance
of such Originator's duties as Local Servicer; provided that such
Originator shall not disrupt or otherwise interfere with the
Purchaser's use of and access to such Originator Documents and
its computer software during such license period; and
(iv) upon written request of the Purchaser, each
Originator will (A) deliver to the Purchaser all licenses,
rights, computer programs, related material, computer tapes,
disks, cassettes and data necessary for the immediate collection
of the Receivables by the Purchaser, with or without the
participation of such Originator (excluding software licenses
which by their terms are not permitted to be so delivered;
provided that each Originator 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 Purchaser) and (B) make such arrangements with
respect to the collection of the Receivables as may be reasonably
required by the Purchaser.
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. Each Originator agrees (a) to pay or
------------------
reimburse the Purchaser for all of its out-of-pocket costs and expenses incurred
in connection with the preparation and execution of, and any amendment,
supplement or modification to, this Agreement, the other Transaction Documents
and any other documents prepared in connection herewith and therewith, the
consummation and administration of the transactions contemplated hereby and
thereby, including, without limitation, all reasonable fees and disbursements of
counsel, (b) to pay or reimburse the Purchaser for all its costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement and any of the other Transaction Documents, including, without
limitation, the reasonable fees and disbursements of counsel to the Purchaser,
(c) to pay, indemnify, and hold the Purchaser harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay caused by such Originator in paying, stamp, excise and
other similar taxes, if any, which may be payable
29
or determined to be payable in connection with the execution and delivery of, or
consummation or administration of, any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement and any such other documents, and (d) to pay,
indemnify, and hold the Purchaser 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 Purchaser 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 Purchaser 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 Purchaser 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 Purchaser. The agreements of each
Originator 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 Originators and the Purchaser and their respective
successors (whether by merger, consolidation or otherwise) and permitted
assigns. Each Originator 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 Purchaser. Each Originator acknowledges that the Purchaser shall grant a
Participation and a security interest in all of its rights hereunder to the
Trustee pursuant to the Pooling Agreement. Each Originator 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 Additional Originators. Huntsman International may admit as an
----------------------
Originator under this Agreement any member of the Huntsman Group, provided such
member is formed or organized in a State of the United States of America (such
party or parties shall be referred to as an "Additional Originator") and such
---------------------
member is a wholly-owned Subsidiary (directly or indirectly) of Huntsman
International. The admission of such Additional Originator shall be subject to
the following conditions:
(a) the Company shall receive the documents and information
specified in Section 3.01 (other than the documents and information referred to
------------
in clauses (e)(ii), (f) and (k)) in respect of the Additional Originator, each
in form and substance satisfactory to the Company where reference to the
"Effective Date" shall be the date of admission as an Additional Originator;
30
(b) the Additional Contributor shall execute and deliver to the
Company a duly completed agreement as set out in Schedule 7 (the "Admission of
---------- ------------
Additional Originator");
---------------------
(c) the consent of the Funding Agents shall have been obtained;
(d) the Rating Agency Condition shall have been satisfied;
(e) receipt by the Trustee and the Funding Agent and any agent
for the Certificateholders of a certificate from the Master Servicer certifying
that after giving effect to the addition of such Additional Originator, the
Aggregate Allocated Receivables Amount shall equal the Aggregate Target
Receivables Amount on the date of such admission; and
(f) the Trustee shall have established on or more Collection
Accounts and executed a Collection Account Agreement with respect to the
Collections received on the Receivables to be sold by such Additional Originator
and contributed by the Company to the Trust;
provided, that satisfaction of the Rating Agency Condition shall not be a
condition precedent to admission as an Additional Originator if:
(i) Huntsman International provides the Trustee with
an Officer's certificate certifying that such Additional
Originator is in the same line of business as the
existing Originators; and
(ii) immediately prior to giving effect to such
addition, the ratio (expressed as a percentage) of (I)
the aggregate Principal Amount of what would constitute
all Eligible Receivables of such requesting Additional
Originator at the end of the immediately preceding
Business Day if it were an Additional Originator plus the
aggregate Principal Amount of Eligible Receivables of all
Additional Originators admitted during the then current
calendar year, minus the amount that would constitute the
Overconcentration Amount applicable to all such
Receivables on such date if such requesting Additional
Originator were an Additional Originator to (II) the
Aggregate Receivables Amount on such date (before giving
effect to such addition), is less than 10%.
Upon satisfaction of the above conditions, the Additional Originator
shall be deemed to be a party to this Agreement, and for all purposes of the
Transaction Documents shall be deemed to be a "U.S. Originator" and
"Originator". The Additional Originator shall be under the same obligations
towards each of the other parties to this Agreement as if it had been an
original party hereto as an "Originator".
----------
31
8.05 Intentionally Omitted
8.06 Intentionally Omitted
8.07 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 SALE HEREUNDER.
8.08 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of the Purchaser, 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.
8.09 Amendments and Waivers. Neither this Agreement nor any terms
----------------------
hereof may be amended, supplemented or modified except in a writing signed by
the Purchaser and the Originators 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.
8.10 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.
8.11 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 Purchaser and the
Originator, or to such other address as may be hereafter notified by the
respective parties hereto:
32
With respect to the Purchaser: 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 Originators: Tioxide Americas Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
Attention: Office of the General Counsel
Telecopy: ▇(▇▇▇) ▇▇▇-▇▇▇▇
Copy to: Huntsman Propylene Oxide Ltd.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
Attention: Office of General Counsel
Telecopy: ▇(▇▇▇) ▇▇▇-▇▇▇▇
Huntsman International Fuels L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
Attention: Office of the General Counsel
Telecopy: ▇(▇▇▇) ▇▇▇-▇▇▇▇
33
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: 00 353 1 612 5777
8.12 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 Purchaser.
8.13 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 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
34
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.
8.14 No Bankruptcy Petition.
----------------------
(a) Each Originator, by entering into this Agreement, covenants
and agrees, to the extent permissible under applicable law, that it will not
institute against, or join any other Person in instituting against, the
Purchaser any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings (including, but not limited to, petitioning
for the declaration of the Purchaser's assets en desastre) under any Applicable
Insolvency Laws.
(b) Notwithstanding anything elsewhere herein contained, the
sole remedy of the Originators or any other Person in respect of any obligation,
covenant, representation, warranty or agreement of the Purchaser under or
related to this Agreement shall be against the assets of the Purchaser. None of
the Originators nor any other Person shall have any claim against the Purchaser
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.
8.15 Termination. This Agreement will terminate at such time as (a)
-----------
the commitment of the Purchaser to accept a sale of Receivables from the
Originators hereunder shall have terminated and (b) all Receivables have been
collected, and the proceeds thereof turned over to the Purchaser and all other
amounts owing to the Purchaser hereunder shall have been paid in full or, if
Receivables have not been collected, such Receivables have become Defaulted
Receivables and the Purchaser shall have completed its collection efforts in
respect thereto; provided, however, that the indemnities of the Originators to
-------- -------
the Purchaser set forth in this Agreement shall survive such termination and
provided further that, to the extent any amounts remain due and owing to the
-------- -------
Purchaser hereunder, the Purchaser 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
any Originator is rescinded or must be restored or returned by the Purchaser as
a result of any Insolvency Event with respect to such Originator then such
Originator's obligations with respect to such payment shall be reinstated as
though such payment had never been made.
8.16 Responsible Officer Certificates; No Recourse. Any certificate
---------------------------------------------
executed and delivered by a Responsible Officer of the Originators or the
Purchaser 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 Originators or
35
the Purchaser, 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, as such, of the Originators or
Purchaser shall not have liability for any obligation of the Originators or the
Purchaser 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.
36
IN WITNESS WHEREOF, the parties hereto have caused this Receivables
Purchase Agreement to be executed by their respective officers thereunto duly
authorized, all as of the day and year first above written.
Huntsman International LLC,
as Purchaser
By: /s/ J. ▇▇▇▇ ▇▇▇▇▇▇
Name: J. ▇▇▇▇ ▇▇▇▇▇▇
Title: Executive VP and CFO
Tioxide Americas Inc.,
as Seller and Originator
By: /s/ J. ▇▇▇▇ ▇▇▇▇▇▇
Name: J. ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
Huntsman Propylene Oxide Ltd.,
as Seller and Originator
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Huntsman International Fuels L.P.,
as Seller and Originator
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President