EXHIBIT 10.18
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HUNTSMAN MASTER TRUST
POOLING AGREEMENT
Among
HUNTSMAN RECEIVABLES FINANCE LLC,
as Company
HUNTSMAN (EUROPE) BVBA,
as Master Servicer
and
CHASE MANHATTAN BANK (IRELAND) plc,
as Trustee
Dated as of December 21, 2000
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS.................................................................................. 2
SECTION 1.01. Definitions......................................................................... 2
SECTION 1.02. Other Definitional Provisions....................................................... 2
ARTICLE II PARTICIPATION IN RECEIVABLES; REPRESENTATIONS, WARRANTIES AND COVENANTS..................... 3
SECTION 2.01. Participation....................................................................... 3
SECTION 2.02. Acceptance by Trustee............................................................... 9
SECTION 2.03. Representations and Warranties of the Company....................................... 9
SECTION 2.04. Representations and Warranties of the Company Relating to the Receivables........... 14
SECTION 2.05. Adjustment Payment for Ineligible Receivables....................................... 15
SECTION 2.06. Purchase of Investor Certificateholders' Interest in the Participation.............. 16
SECTION 2.07. Affirmative Covenants of the Company................................................ 17
SECTION 2.08. Negative Covenants of the Company................................................... 28
SECTION 2.09. Addition of Approved Currency, Approved Originator and Addition of Approved
Obligor Country..................................................................... 32
SECTION 2.10. Removal and Withdrawal of Originators and Approved Originators...................... 35
ARTICLE III RIGHTS OF HOLDERS AND ALLOCATION AND APPLICATION OF COLLECTIONS............................. 36
SECTION 3.01. Establishment of the Company Concentration Accounts, Series Concentration
Accounts, Stamp Duty Reserve Accounts and General Reserve Accounts; Certain
Payments and Allocations............................................................ 36
ARTICLE IV ARTICLE IV IS RESERVED AND MAY BE SPECIFIED IN ANY SUPPLEMENT WITH RESPECT TO THE
SERIES RELATING THERETO...................................................................... 44
ARTICLE V THE INVESTOR CERTIFICATES AND EXCHANGEABLE COMPANY INTEREST.................................. 44
SECTION 5.01. The Investor Certificates........................................................... 44
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TABLE OF CONTENTS
(continued)
Page
SECTION 5.02. Authentication of Certificates................................................. 45
SECTION 5.03. Registration of Transfer and Exchange of Investor Certificates................. 46
SECTION 5.04. Additional Issuance of Certificates............................................ 48
SECTION 5.05. Mutilated, Destroyed, Lost or Stolen Investor Certificates..................... 48
SECTION 5.06. Persons Deemed Owners.......................................................... 48
SECTION 5.07. Appointment of Paying Agent.................................................... 49
SECTION 5.08. Access to List of Investor Certificateholders' Names and Addresses............. 50
SECTION 5.09. Authenticating Agent........................................................... 50
SECTION 5.10. Tax Treatment.................................................................. 52
SECTION 5.11. Exchangeable Company Interest.................................................. 52
SECTION 5.12. Book-Entry Certificates........................................................ 55
SECTION 5.13. Notices to Clearing Agency..................................................... 56
SECTION 5.14. Definitive Certificates........................................................ 56
SECTION 5.15. Securities Act Restrictions.................................................... 56
ARTICLE VI OTHER MATTERS RELATING TO THE COMPANY................................................... 57
SECTION 6.01. Liability of the Company....................................................... 57
SECTION 6.02. Limitation on Liability of the Company......................................... 57
SECTION 6.03. Merger or Consolidation of, or Assumption of the Obligations of, Huntsman
International or Certain of Its Affiliates..................................... 57
ARTICLE VII EARLY AMORTIZATION EVENTS............................................................... 59
SECTION 7.01. Early Amortization Events...................................................... 59
SECTION 7.02. Additional Rights upon the Occurrence of Certain Events........................ 60
ARTICLE VIII THE TRUSTEE............................................................................. 61
SECTION 8.01. Duties of Trustee.............................................................. 61
SECTION 8.02. Rights of the Trustee.......................................................... 63
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TABLE OF CONTENTS
(continued)
Page
SECTION 8.03. Trustee Not Liable for Recitals................................................. 65
SECTION 8.04. Trustee May Own Investor Certificates........................................... 65
SECTION 8.05. Trustee's and the Liquidation Servicer's Fees and Expenses...................... 66
SECTION 8.06. Eligibility Recitals............................................................ 66
SECTION 8.07. Resignation or Removal of Trustee............................................... 67
SECTION 8.08. Successor Trustee............................................................... 67
SECTION 8.09. Merger or Consolidation of Trustee.............................................. 68
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee................................... 68
SECTION 8.11. Tax Returns..................................................................... 70
SECTION 8.12. Trustee May Enforce Claims Without Possession of Investor Certificates.......... 70
SECTION 8.13. Suits for Enforcement........................................................... 70
SECTION 8.14. Rights of Investor Certificateholders to Direct Trustee......................... 71
SECTION 8.15. Representations and Warranties of Trustee....................................... 71
SECTION 8.16. Maintenance of Office or Agency................................................. 71
SECTION 8.17. Limitation of Liability......................................................... 72
ARTICLE IX TERMINATION............................................................................... 72
SECTION 9.01. Termination of Trust............................................................ 72
SECTION 9.02. Optional Purchase and Final Termination Date of Investor Certificates of
Any Series...................................................................... 73
SECTION 9.03. Final Payment with Respect to Any Series........................................ 74
SECTION 9.04. The Company's Termination Rights................................................ 75
ARTICLE X MISCELLANEOUS PROVISIONS.................................................................. 76
SECTION 10.01. Amendment....................................................................... 76
SECTION 10.02. Protection of Right, Title and Interest to Trust................................ 77
SECTION 10.03. Governing Law................................................................... 78
SECTION 10.04. Notices......................................................................... 79
SECTION 10.05. Severability of Provisions...................................................... 80
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TABLE OF CONTENTS
(continued)
Page
SECTION 10.06. Assignment................................................................. 80
SECTION 10.07. Investor Certificates Nonassessable and Fully Paid......................... 80
SECTION 10.08. Further Assurances......................................................... 80
SECTION 10.09. No Waiver; Cumulative Remedies............................................. 80
SECTION 10.10. Counterparts............................................................... 81
SECTION 10.11. Third-Party Beneficiaries.................................................. 81
SECTION 10.12. Actions by Investor Certificateholders..................................... 81
SECTION 10.13. Merger and Integration..................................................... 81
SECTION 10.14. Headings................................................................... 81
SECTION 10.15. No Setoff.................................................................. 81
SECTION 10.16. No Bankruptcy Petition..................................................... 82
SECTION 10.17. Limitation of Liability.................................................... 82
SECTION 10.18. Certain Information........................................................ 82
SECTION 10.19. Responsible Officer Certificates; No Recourse.............................. 83
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EXHIBITS
Exhibit A Form of Company Annual Opinion of Counsel
Exhibit B Form of Daily Report
Exhibit C Form of Monthly Settlement Report
SCHEDULES
Schedule 1 Identification of the (A) Company Concentration
Accounts (B) Series Concentration Accounts and
subaccounts and (C) Collection Accounts and Master
Collection Accounts and (D) Company Receipts Accounts
Schedule 2 Location of Chief Executive Office of the Company
Schedule 3 Receivables Specification and Exception Schedule
Schedule 4 Business Day/Local Business Day Schedule
ANNEX
Annex X Definitions
POOLING AGREEMENT dated as of December 21, 2000 among HUNTSMAN RECEIVABLES
FINANCE LLC, a limited liability company organized under the laws of the State
of Delaware (the "Company") HUNTSMAN (EUROPE) BVBA, a corporation organized
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under the laws of Belgium (in its capacity as master servicer, the "Master
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Servicer"), CHASE MANHATTAN BANK (IRELAND) plc, a banking institution organized
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under the laws of Ireland, not in its individual capacity, but solely as trustee
(in such capacity, the "Trustee").
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W I T N E S S E T H:
WHEREAS, as of the date of this Pooling Agreement, (i) Huntsman
International LLC, as buyer, Tioxide Americas Inc., Huntsman Propylene Oxide
Ltd. and Huntsman International Fuels L.P., (each a "U.S. Originator" and
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together the "U.S. Originators") have entered into a Receivables Purchase
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Agreement (as amended, supplemented or otherwise modified from time to time, the
"U.S. Receivables Purchase Agreement") relating to the sale of Receivables
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originated by Tioxide Americas Inc., Huntsman Propylene Oxide Ltd. and Huntsman
International Fuels L.P., (ii) Huntsman International LLC, as buyer, and Tioxide
Europe Limited and Huntsman Petrochemicals (UK) Limited (each, a "U.K.
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Originator" and together, the "U.K. Originators") have entered into a
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Receivables Purchase Agreement (as amended, supplemented or otherwise modified
from time to time, the "U.K. Receivables Purchase Agreement") relating to the
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sale of Receivables originated by the U.K. Originators, (iii) Huntsman
International LLC, as buyer, and Huntsman ICI Holland BV (the "Dutch Originator"
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and together with the U.K. Originators, the "European Originators") have entered
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into a Receivables Purchase Agreement (as amended, supplemented or otherwise
modified from time to time, the "Dutch Receivables Purchase Agreement") relating
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to the sale of Receivables originated by the Dutch Originator, (iv) the Company
and Huntsman International LLC, as contributor, have entered into a Contribution
Agreement (as amended, supplemented or otherwise modified from time to time, the
"Contribution Agreement" and together with the U.S. Receivables Purchase
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Agreement, the U.K. Receivables Purchase Agreement and the Dutch Receivables
Purchase Agreement, the "Origination Agreements") pursuant to which Huntsman
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International LLC (also, a "U.S. Originator") contributes the Receivables it
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purchased from the U.S. Originator and the European Originators as well as the
Receivables originated by it and (v) the Company, the Master Servicer, the
Liquidation Servicer, the Local Servicers and the Trustee have entered into a
Servicing Agreement (as amended, supplemented or otherwise modified from time to
time, the "Servicing Agreement") pursuant to which, among other things, the
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Master Servicer will appoint each of the U.S. Originators, the U.K. Originators
and the Dutch Originator (collectively, the "Originators") as a local servicer
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(in such capacity, a "Local Servicer") for the Receivables generated by such
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Originator and contributed to the Company;
WHEREAS, the parties hereto have entered into this Pooling Agreement
in order to create a master trust to which the Company will grant a
Participation in (without effecting any transfer or conveyance of any right,
title or interest hereunder) all of its right, title and interest in, to and
under the Receivables, Related Property and other Participation Assets now or
hereafter owned by the Company and such master trust shall,
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from time to time at the direction of the Company (or the Master Servicer on its
behalf), issue one or more Series of Investor Certificates, representing
interests in such Participation as specified in the Supplement related to such
Series;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Capitalized terms used herein shall,
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unless otherwise defined or referenced herein, have the meanings assigned to
such terms in Annex X attached hereto which Annex X is incorporated by reference
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herein.
SECTION 1.02. Other Definitional Provisions.
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(a) All terms defined or incorporated by reference in this
Agreement, the Servicing Agreement or in any Supplement shall have such defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined
herein or incorporated by reference herein, and accounting terms partly defined
herein or incorporated by reference herein to the extent not defined, shall have
the respective meanings given to them under GAAP. To the extent that the
definitions of accounting terms herein or incorporated by reference herein are
inconsistent with the meanings of such terms under GAAP, the definitions
contained herein or incorporated by reference herein shall control.
(c) The words "hereof", "herein" and "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 Section,
subsection, Schedule, Exhibit and Appendix references contained in this
Agreement are references to Sections, subsections, Schedules, Exhibits and
Appendices in or to this Agreement unless otherwise specified.
(d) The definitions contained herein or incorporated by
reference herein are applicable to the singular as well as the plural forms of
such terms and to the masculine as well as to the feminine and neuter genders of
such terms.
(e) Where a definition contained herein or incorporated by
reference herein specifies that such term shall have the meaning set forth in
the related Supplement, the definition of such term set forth in the related
Supplement may be preceded by a prefix indicating the specific Series or Class
to which such definition shall apply.
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(f) Where reference is made in this Agreement or any related
Supplement to the principal amount of Receivables, such reference shall, unless
explicitly stated otherwise, be deemed a reference to the Principal Amount (as
such term is defined in Annex X attached hereto) of such Receivables.
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(g) Any reference herein or in any other Transaction Document
to a provision of the Bankruptcy Code, Code, ERISA, 1940 Act or the UCC shall be
deemed a reference to any successor provision thereto.
(h) Any reference herein to a Schedule, Exhibit or Appendix to
this Agreement shall be deemed to be a reference to such Schedule, Exhibit or
Appendix as it may be amended, modified or supplemented from time to time to the
extent that such Schedule, Exhibit or Appendix 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, Exhibit or Appendix) in compliance with
the terms of the Transaction Documents.
(i) Any reference herein 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.
(j) The words "include", "includes" or "including" shall be
interpreted as if followed, in each case, by the phrase "without limitation".
ARTICLE II
PARTICIPATION IN RECEIVABLES;
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REPRESENTATIONS, WARRANTIES AND COVENANTS
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SECTION 2.01. Participation.
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(a) Grant of Participation. By execution and delivery of this
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Agreement the Company, as beneficial owner of the Receivables and the
Collections, grants to the Trust a participation (the "Participation") in and to
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all proceeds of, or payments in respect of, any and all of the following
("Participation Amounts"):
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(i) the Receivables contributed to the Company by
Huntsman International from time to time prior to but not
including the Trust Termination Date;
(ii) the Related Property;
(iii) all Collections;
(iv) FX Hedging Agreements;
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(v) all rights (including rescission, replevin or
reclamation) relating to any Receivable or arising therefrom;
(vi) each of the Origination Agreements, the Collection
Account Agreements and the Servicing Agreement, including in
respect of each agreement, (A) all rights of the Company to
receive monies due and to become due under or pursuant to such
agreement, whether payable as fees, expenses, costs or otherwise,
(B) all rights of the Company to receive proceeds of any
insurance, indemnity, warranty or guaranty with respect to such
agreement, (C) claims of the Company for damages arising out of
or for breach of or default under such agreement, (D) the right
of the Company to amend, waive or terminate such agreement, to
perform thereunder and to compel performance and otherwise
exercise all remedies thereunder and (E) all other rights,
remedies, powers, privileges and claims of the Company under or
in connection with such agreement (whether arising pursuant to
such agreement or otherwise available to the Company at law or in
equity), including the rights of the Company to enforce such
agreement and to give or withhold any and all consents, requests,
notices, directions, approvals, extensions or waivers under or in
connection therewith (all of the foregoing set forth in
subclauses (v) (A) through (E), inclusive, the "Transferred
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Agreements");
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(vii) the Collection Accounts and Master Collection
Accounts, including (A) all funds and other evidences of payment
held therein and all certificates and instruments, if any, from
time to time representing or evidencing the Collection Accounts
and Master Collection Accounts or any funds and other evidences
of payment held therein, (B) all investments of such funds held
in the Collection Accounts and Master Collection Accounts and all
certificates and instruments from time to time representing or
evidencing such investments, (C) all notes, certificates of
deposit and other instruments from time to time hereafter
delivered or transferred to, or otherwise possessed by, the
Trustee for and on behalf of the Company in substitution for the
then existing Collection Accounts and Master Collection Accounts
and (D) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for the then existing
Collection Accounts and Master Collection Accounts; and
(viii) the Company Concentration Accounts, including (A)
all funds and other evidences of payment held therein and all
certificates and instruments, if any, from time to time
representing or evidencing the Company Concentration Accounts or
any funds and other evidences of payment held
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therein, (B) all investments of such funds held in the Company
Concentration Accounts and all certificates and instruments from
time to time representing or evidencing such investments, (C) all
notes, certificates of deposit and other instruments from time to
time hereafter delivered or transferred to, or otherwise
possessed by, the Trustee for and on behalf of the Company in
substitution for the then existing Company Concentration
Accounts, and (D) all interest, dividends, cash, instruments and
other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for the then
existing Company Concentration Accounts;
(ix) the Stamp Duty Reserve Accounts, including all
funds and other evidences of payment held therein with respect to
proceeds from Eligible Investments;
(x) the General Reserve Accounts, including all funds
and other evidences of payment held therein with respect to
proceeds from Eligible Investments; and
(xi) all proceeds of or payments in respect of any and
all of the foregoing clauses (i) through (vi) (including proceeds
that constitute property of the types described in clause (vi)
above and including Collections.
Such assets described in the foregoing clauses (i) through (x),
shall constitute the "Participation Assets".
Pursuant to the Participation, the Company shall, upon receipt by it
of any Participation Amounts, pay to the Trustee in accordance with the terms
hereof an amount calculated by reference to such Participation Amount and equal
to such amount as is required to be so paid pursuant to Section 3.01(d)(iv).
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The obligation of the Company to pay to the Trustee amounts calculated
by reference to each Participation Amount shall constitute an obligation to
account for and pay such amounts so calculated to the Trustee and shall not
constitute, and shall not be construed as, the repayment or discharge of any
loan or advance or the payment of any amount by way of interest or of an
obligation to account for such Participation Amounts thereunder (but rather to
pay amounts calculated by reference thereto) and, notwithstanding any of the
other provisions of this Agreement, the Participation shall not constitute or
effect any transfer or conveyance of any right, title or interest in or to any
of the Participation Assets subject to the security interest granted hereunder
to the Trustee. Notwithstanding any of the said provisions, the Company shall
continue to be the beneficial owner of the Receivables and the Collections,
subject only to the security interest granted under subsection 2.01(b) by the
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Company to the Trustee on behalf of the Trust.
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(b) Grant of Security Interest. The Company hereby grants to
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the Trustee for the benefit of the Holders to secure the Company Obligations a
continuing perfected first priority security interest in all of the Company's
present and future right, title and interest in, to and under the Receivables
contributed by the Contributor to the Company and the Receivables Assets related
thereto and its beneficial right and title in and to the Company Concentration
Accounts, and agrees that this Agreement shall be deemed to constitute a
security agreement under applicable law in favor of the Trustee, for the benefit
of the Investor Certificateholders.
The security interest granted in favor of the Trust pursuant to this
subsection 2.01(b) shall be granted to the Trustee, on behalf of the Trust, and
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each reference in this Agreement to such security interest shall be construed
accordingly. In connection with the foregoing security interest, each of the
Company, and the Master Servicer agrees to deliver to the Trustee each
Participation Asset evidencing a Receivable or any Related Property with respect
thereto (including any original document or instrument necessary to effect or to
perfect such security interest) in which the participation and security interest
is being perfected under the relevant UCC or otherwise by possession and not by
filing a financing statement or similar document. Without limiting the
generality of the foregoing sentence, each of the Company and the Master
Servicer hereby agrees to deliver or cause to be delivered to the Trustee an
original of (i) any promissory note or other instrument evidencing a Receivable
pledged to the Trust and (ii) any chattel paper evidencing a Receivable pledged
to the Trust or to stamp any such promissory note or other instrument or chattel
paper in large block lettering with the following language: "THIS PROMISSORY
NOTE/CHATTEL PAPER IS SUBJECT TO THE LIEN OF THE TRUSTEE PURSUANT TO THE POOLING
AGREEMENT DATED AS OF DECEMBER , 2000, AMONG HUNTSMAN RECEIVABLES FINANCE LLC,
HUNTSMAN (EUROPE) B.V.B.A., AND CHASE MANHATTAN BANK (IRELAND) plc".
The foregoing grant of the Participation and the security interest
does not constitute and is not intended to result in a creation or an assumption
by the Trust, the Trustee, any Investor Certificateholder or the Company, in
their capacity as a Holder, of any obligation of the Master Servicer, the
Company, an Originator or any other Person in connection with the Receivables or
under any agreement or instrument relating thereto, including, without
limitation, any obligation to any Obligor.
In this Agreement, notwithstanding any of the other provisions of this
Agreement or any of the Transaction Documents:
(i) all references to the Company having an interest in
Receivables or Collections shall be construed as references to
the Company being the sole beneficial owner of such Receivables
and Collections, subject only to the security interest granted by
the Company under Section 2.01;
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(ii) all references to the Trustee or Investor
Certificateholders having any entitlement to or interest in any
Receivables or Collections shall be construed as references to
their
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having a right of participation and a security interest as
provided for in Section 2.01 and all references to their having a
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right to receive Collections or to Collections being received or
held for their benefit shall be construed as references to their
having a right to receive amounts calculated by reference to
Collections pursuant to the participation granted hereunder and
to such amounts being received or held for their benefit;
(iii) all references to the Trustee allocating to the
Company any Collections or distributing or transferring any
amount to the Company (whether by transfer to any Company
Receipts Account or otherwise) from a Company Concentration
Account shall be construed as references to the Trustee making
such allocations, distributions and transfers by way of release
of such amounts from the security interest created under Section
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2.01 in recognition of the payment by the Company in whole or in
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part of amounts payable by it under the Participation granted
under Section 2.01(a) above;
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(iv) all references to the Trustee transferring any
amounts from any Company Concentration Account to any Series
Concentration Account shall be construed as references to the
Trustee making such transfers (with the written authority of the
Company) pursuant to the Company's obligation to make payments to
the Trustee for the benefit of the Investor Certificateholders
pursuant to the Participation granted under Section 2.01(a);
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(v) all references to the Trustee allocating to the
Company any Series Amounts (or parts thereof) or making any
distribution to the Company from any Series Concentration Account
or subaccount thereof or transferring any amount from any Series
Concentration Account to any Company Receipts Account shall be
construed as references to the Trustee making such allocations,
distributions and transfers on behalf of the relevant Series (and
out of funds beneficially owned by the Series) in consideration
of the granting by the Company to the Trustee of the
Participation described in Section 2.01(a) (such consideration
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being in addition, where applicable, to the payment of the
Initial Invested Amount in accordance with Section 5.02);
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(vi) it is hereby acknowledged that any Series
Amounts shall be held by the Trustee for the account of Investor
Certificateholders of the relevant Series (as the beneficial
owners thereof), subject to the Trustee being hereby authorized
by the relevant Series to apply such amounts on behalf of the
Series in accordance with the provisions of the Transaction
Documents. Accordingly, all references to the Company having any
interest in any Series Amounts shall be construed as references
to the
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Company being entitled to the benefit of the allocations,
distributions and transfers referred to in (v) above;
(vii) all references to the Company purchasing any
interest in Receivables or Collections from the Trustee or any
Certificateholders including (without limitation) any such
references contained in Section 2.06 and 9.02 shall be construed
as references to the Company discharging all or part (as
appropriate) of its obligations in respect of the participation
granted by it in respect of such Receivables and Collections and
thereby procuring a corresponding release, to the same extent, of
any related security interest granted by it in respect of such
Receivables and Collections;
(viii) any (a) requirement on the Company to deal or not
to deal with Receivables or Collections in any particular way and
any restrictions on the exercise by the Company of any of its
continuing rights of beneficial ownership in respect of the
Receivables and Collections and (b) authority given by the
Company to the Trustee in relation to any Collection Account and
any Company Concentration Account shall be taken as forming part
of the security interest granted to the Trustee hereunder for the
benefit of the Investor Certificateholders (which interest
secures the obligations of the Company under the participation
granted by it hereunder) and shall subsist only for so long as
the said security interest subsists and until the same is fully
discharged;
(ix) all references to the Company agreeing to
decrease the amount of its Exchangeable Company Interest by any
amount (the "Relevant Amount") shall be taken to be references to
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the Company agreeing to pay the Relevant Amount pursuant to the
Participation granted under Section 2.01(a) (in addition to any
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other amounts payable by the Company pursuant thereto) on the
earliest occasion when sufficient Collections are available for
that purpose;
(x) all references to the Trustee or Investor
Certificateholders having any interest in any Participation
Amounts shall be taken to be references to the rights of the
Trustee, as against the Company, to receive payments from the
Company (for the benefit of the Investor Certificateholders)
pursuant to the Participation granted under Section 2.01(a), such
rights being secured by the security interest granted by the
Company hereunder in relation to the Participation Amounts; and
(xi) it is acknowledged that there shall be no loan by
any Investor Certificateholders of any Series to the Trustee or
the Company and that any indebtedness owed by the Company to the
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Trustee shall be by way of Participation in relation to the
Receivables and is not in respect of any borrowing by the Company
or by the Trustee on behalf of the Company. Accordingly, any
references in this Agreement or any Supplement to amounts being
distributable by the Trustee to the Investor Certificateholders
in respect of amounts described as "interest" or "principal" (and
all like expressions) shall be construed as references to amounts
which the Investor Certificateholders are entitled to receive in
their capacity as holders of fractional undivided interests in
the relevant Participation, being amounts which are calculated
primarily by reference to costs and outgoings which are (or are
expected to be) incurred by Investor Certificateholders in
funding their acquisition and holding of said interests.
In connection with its grant of the Participation the Company further agrees, at
its own expense, on each Receivables Purchase Date, (A) to direct (or cause the
Master Servicer to direct) each Originator to identify on its extraction records
relating to Receivables from its master database of receivables, that the
Receivables have been conveyed to Huntsman International pursuant to one of the
Origination Agreements and (B) to direct the Master Servicer to maintain a
record-keeping system that will clearly and unambiguously indicate, in the
Master Servicer's files maintained on behalf of the Company that such
Receivables have been contributed by the Huntsman International to the Company
and a Participation and a security interest have been granted by the Company to
the Trust for the benefit of the Holders and (C) to deliver or transmit or cause
the Master Servicer on behalf of the Company to deliver or transmit to the
Trustee a Daily Report containing at least the information specified in Exhibit
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B as to all Receivables, as of each related Receivables Contribution Date.
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SECTION 2.02. Acceptance by Trustee.
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(a) The Trustee hereby acknowledges its acceptance on behalf
of the Trust of the Participation and security interest granted to the Trust
pursuant to Section 2.01 and declares that it shall maintain such security
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interest, upon the trust herein set forth, for the benefit of all Holders. The
Trustee shall maintain an electronic copy of each Daily Report and Monthly
Settlement Report, as delivered pursuant to Section 2.01 and Section 3.01(h) at
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the Corporate Trust Office.
(b) The Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated in this Agreement.
SECTION 2.03. Representations and Warranties of the Company. The
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Company hereby represents and warrants to the Trustee and the Trust, for the
benefit of the Holders, as of the Effective Date and as of the Issuance Date of
each Series, that:
(a) Organization; Powers. It (i) is duly formed, validly
--------------------
existing and in good standing under the laws of the jurisdiction of its
organization, (ii)
10
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,
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
-------------
it of each of the Transaction Documents to which it is a party and the
performance of the Transactions (i) have been duly authorized by all requisite
company and, if applicable and required, Shareholder action and (ii) will not
(A) violate (1) any Requirement of Law applicable to it or (2) any provision of
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, (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, or (C)
result in the creation or imposition of any Lien upon or with respect to any
property or assets now owned or hereafter acquired by it (other than any Lien
created hereunder or Permitted Liens).
(c) Enforceability. This Agreement has been duly executed and
--------------
delivered by it and constitutes, and each other Transaction Document to which it
is a party when executed and delivered by it will constitute, a legal, valid and
binding obligation of it enforceable against it 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 (whether enforcement is sought by a proceeding in equity or
at law).
(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 Transaction Documents,
except for (i) the filing of UCC financing statements (or similar filings) in
any applicable jurisdictions necessary to perfect the Trust's ownership and
security interest in the Receivables and (ii) such as have been made or obtained
and are in full force and effect; provided, that it makes no representation or
warranty as to whether any 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 distribution of the Certificates and Interests.
(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 its knowledge, threatened against it or affecting
it or any of its properties, revenues or rights (i) in connection
with the
11
execution and delivery of the Transaction Documents and the
consummation of the Transactions contemplated thereunder, (ii)
which could reasonably be expected to materially affect adversely
the income tax or franchise tax attributes of the Trust under the
United States federal or any state or franchise tax systems or
(iii) for which there exists a reasonable likelihood of an
outcome that would result in a Material Adverse Effect with
respect to it;
(ii) it is not in default with respect to any
judgment, writ, injunction, decree or order of any Governmental
Authority, which would reasonably be expected to have a Material
Adverse Effect with respect to it; and
(iii) it has complied with all applicable provisions of
its organizational or governing documents and any other
Requirements of Law with respect to it, its business and
properties and the Participation Assets.
(f) Agreements.
----------
(i) it has no Contractual Obligations other than (A)
the Transaction Documents to which it is a party and the other
contractual arrangements permitted thereby or contemplated
thereunder and (B) any other agreements or instruments that it is
not prohibited from entering into by subsection 2.08(f) and that,
------------------
in the aggregate, neither contain payment obligations or other
liabilities on the part of it in excess of $100,000 nor would
upon default result in a Material Adverse Effect. Other than the
restrictions created by the Transaction Documents, it is not
subject to any limited liability company restriction that could
reasonably be expected to have a Material Adverse Effect with
respect to it; and
(ii) it is not in default in any material respect
under any provision of any Transaction Document or any other
material Contractual Obligation to which it is a party or by
which it or any of its properties or assets are or may be bound.
(g) Federal Reserve Regulations.
---------------------------
(i) 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; and
(ii) no part of the proceeds from the issuance of any
Investor Certificates will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately,
for any purpose that entails a violation of, or that is
inconsistent with, the
13
provisions of the regulations of the Board, including Regulation
U or Regulation X.
(h) Investment Company Act. It is not an "investment company"
----------------------
as defined in, or subject to regulation under, the 1940 Act nor is it
"controlled" by a company defined as an "investment company" or subject to
regulation under the 1940 Act.
(i) No Early Amortization Event. No Early Amortization Event
---------------------------
or Potential Early Amortization Event has occurred and is continuing.
(j) 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 any failure to file or 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.
(k) Location of Records - Chief Executive Office. The offices
--------------------------------------------
at which the Company keeps its records concerning the Receivables either (x) are
located at the addresses set forth for the relevant Originator on Schedule
--------
4.01(n)(ii) of the related Origination Agreement or (y) the Company has notified
-----------
the Trustee of the location thereof in accordance with the provisions of
subsection 2.08(i) of this Agreement. The Company's chief executive office is
------------------
located at the address set forth on Schedule 4.01(n)(ii) and is the place where
--------------------
it is "located" for the purposes of Section 9-103(3)(d) of the applicable UCC
that governs the perfection of security interest granted in the Receivables
hereunder and there have been no other such locations during the four (4) months
preceding the date of this Agreement. As of the Effective Date, the state and
county where the Company's chief executive office is "located" for the purposes
of Section 9-103 (3)(d) of the UCC as in effect in the State of New York (or
analogous provision of any other similar applicable statute or legislation) has
not changed in the past four (4) months.
(l) Solvency. No Insolvency Event with respect to it has
--------
occurred and the granting of security interests in the Participation Assets by
it to the Trust has not been made in contemplation of the occurrence thereof.
Both prior to and after giving effect to the transactions occurring on each
Issuance Date, (i) the fair value of its assets at a fair valuation will exceed
its debts and liabilities, subordinated, contingent or otherwise; (ii) the
present fair salable value of its property will be greater than the amount that
will be required to pay its probable liability on its debts and other
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; (iii) it will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (iv) it 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. It does not intend to, nor
does it believe that it will, incur
13
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 it and the timing of and
amounts of cash to be payable in respect of its Indebtedness.
(m) Subsidiaries. It has no Subsidiaries and all of its
------------
Shares are owned by Huntsman International.
(n) Names. Its legal name is as set forth in this Agreement.
-----
It has no trade names, fictitious names, assumed names or "doing business as"
names.
(o) Liabilities. Other than (i) the liabilities, commitments
-----------
or obligations (whether absolute, accrued, contingent or otherwise) arising
under or in respect of the Transaction Documents, (ii) immaterial amounts due
and payable in the ordinary course of business of a special-purpose company, it
does not have any liabilities, commitments or obligations (whether absolute,
accrued, contingent or otherwise), whether due or to become due, and (iii) all
amounts described in clauses (i) and (ii) shall be payable solely from funds
available to it which are not otherwise required to be applied to the payment of
any amounts owed by it pursuant to any Pooling and Servicing Agreement.
(p) Collection Procedures. It has not acted in contravention
---------------------
of any Policies with respect to the Receivables.
(q) Collection Accounts and the Master Collection Accounts.
------------------------------------------------------
Except to the extent otherwise permitted under the terms of this Agreement, the
Collection Accounts and the Master Collection Accounts are free and clear of any
Lien (except for Trustee Liens).
(r) No Material Adverse Effect. Since the Effective Date, no
--------------------------
event has occurred which has had a Material Adverse Effect with respect to it.
(s) Bulk Sales. The execution, delivery and performance of
----------
this Agreement do not require compliance with any "bulk sales" law by the
Company in the United States.
(t) Stamp Duty Group. Each member of the Stamp Duty Group is
----------------
associated (within the meaning of Section 42 of the United Kingdom Finance ▇▇▇
▇▇▇▇ (as amended)) with each other member of the Stamp Duty Group.
(u) ▇▇▇▇▇▇▇▇ Chance U.K. Tax Opinion. The statements of fact
--------------------------------
assumed in assumptions 7 through 10, 15, 17, 19, 28, 30, 31 through 33 of the
U.K. Tax Opinion of ▇▇▇▇▇▇▇▇ Chance Limited Liability Partnership are correct so
far as they relate to the Stamp Duty Group and its Affiliates. For the
avoidance of doubt, no representation is made in this sub-paragraph (u) in
respect of matters of law or legal judgment.
(v) United Kingdom Finance ▇▇▇ ▇▇▇▇. There are no
-------------------------------
circumstances in existence which could cause the Company or the Contributor to
have any liabilities under Section 132 of the United Kingdom Finance ▇▇▇ ▇▇▇▇.
14
The representations and warranties as of the date made set forth in
this Section 2.03 shall survive the Participation and the security interest
------------
granted in the Participation Assets to the Trust. Upon discovery by a
Responsible Officer of the Company or the Master Servicer or by a Responsible
Officer of the Trustee of a breach of any of the foregoing representations and
warranties with respect to any Outstanding Series as of the Issuance Date of
such Series, the party discovering such breach shall give prompt written notice
to the other parties and to each Funding Agent with respect to any Outstanding
Series. The Trustee's obligations in respect of any breach are limited as
provided in subsection 8.02(g).
------------------
SECTION 2.04. Representations and Warranties of the Company Relating
------------------------------------------------------
to the Receivables. The Company hereby represents and warrants to the Trustee
------------------
and the Trust, for the benefit of the Holders, with respect to each Receivable
in which a Participation and a security interest is granted to the Trust as of
the related Receivables Contribution Date, unless, in either case, otherwise
stated in the applicable Supplement or unless such representation or warranty
expressly relates only to a prior date, that:
(a) Receivables Description. As of the related Receivables
-----------------------
Contribution Date, the Daily Report delivered or transmitted pursuant to
subsection 2.01(b) sets forth in all material respects a complete listing of all
------------------
Receivables (and any items of Related Property), in which a Participation and a
security interest is granted to the Trust on the related Receivables
Contribution Date and the information contained in the Daily Report with respect
to each such Receivable is true and correct (except for any errors or omissions
that do not result in material impairment of the interests, rights or remedies
of the Trustee or the Investor Certificateholders with respect to any
Receivable) as of the related Receivables Contribution Date.
(b) No Liens. Each Eligible Receivable existing on the
--------
Effective Date or, in the case of Eligible Receivables in which a Participation
and security interest is granted to the Trust after the Effective Date, on the
related Receivables Contribution Date was, on such date, free and clear of any
Lien, except for Permitted Liens and Trustee Liens.
(c) Eligible Receivable. Each Receivable in which a
-------------------
Participation and security interest is granted to the Trust that is included in
the calculation of the Aggregate Receivables Amount is an Eligible Receivable
and, in the case of Receivables in which a security interest is granted to the
Trust after the Effective Date, on the related Receivables Contribution Date,
each such Receivable that is included in the calculation of the Aggregate
Receivables Amount on such related Receivables Contribution Date is an Eligible
Receivable.
(d) Filings. All filings and other acts required to permit
-------
the Company (or its permitted assignees or pledgees) to provide such
notification subsequent to the applicable Receivables Contribution Date without
materially impairing the Trust's security interest in the Participation Assets
and without incurring material expenses in connection with such notification)
necessary under the applicable 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 Trust on the applicable Receivables
15
Contribution Date a continuing first priority perfected security interest in
respect of all Receivables and Related Property.
(e) Policies. Since the Effective Date, to its knowledge,
--------
there have been no material changes in the Policies, other than as permitted
hereunder.
The representations and warranties as of the date made set forth in
this Section 2.04 shall survive the grant of the Participation and the security
------------
interest in the Participation Assets to the Trust. Upon discovery by a
Responsible Officer of the Company or the Master Servicer or a Responsible
Officer of the Trustee of a breach of any of the representations and warranties
(or of any Receivable encompassed by the representation and warranty in
subsection 2.04(c) not being an Eligible Receivable as of the relevant
------------------
Receivables Contribution Date), the party discovering such breach shall give
prompt written notice to the other parties and to each Funding Agent with
respect to all Outstanding Series. The Trustee's obligations in respect of any
breach are limited as provided in subsection 8.02(g).
------------------
SECTION 2.05. Adjustment Payment for Ineligible Receivables.
---------------------------------------------
(a) Adjustment Payments. If (i) any representation or
-------------------
warranty under subsections 2.04(a) or (b) is not true and correct as of the date
------------------- ---
specified therein with respect to any Receivable in which a security interest
was granted in favor of the Trust, or any Receivable encompassed by the
representation and warranty in subsection 2.04(c) is determined not to have been
------------------
an Eligible Receivable (other than Excluded Receivables) as of the relevant
Receivables Contribution Date, (ii) there is a breach of any covenant under
subsection 2.08(b) with respect to any Receivable (other than Excluded
------------------
Receivables) or (iii) the Trust's interest in any Receivable is not a continuing
first priority perfected security interest at any time as a result of any action
taken by, or the failure to take action by, the Company (any Receivable as to
which the conditions specified in any of clause (i), (ii) or (iii) of this
subsection 2.05(a) exists is referred to herein as an "Ineligible Receivable")
------------------ ---------------------
then, after the earlier (the date on which such earlier event occurs, the
"Ineligibility Determination Date") to occur of the discovery by the Company of
--------------------------------
any such event that continues unremedied or receipt by the Company of written
notice (which may be in the Daily Report) given by the Master Servicer of any
such event that continues unremedied, the Company shall pay to the Trustee the
Adjustment Payment in the amount and manner set forth in Section 2.05(b) hereof.
(b) Adjustment Payment Amount. Subject to the last sentence
-------------------------
of this subsection 2.05(b), the Company may (i) reduce the amount of its
------------------
Exchangeable Company Interest by an amount equal to the difference between (x)
minus (y) below and, to the extent such reduction is insufficient to satisfy its
obligations hereunder the Company shall make an adjustment payment with respect
to each Ineligible Receivable or (ii) make an adjustment payment in an amount
equal to the difference between (x) minus (y) below or (iii) fully reduce its
Exchangeable Company Interest to cover its obligations hereunder with respect to
such Ineligible Receivable, each as required pursuant to subsection 2.05(a) by
------------------
depositing in the applicable currency Company Concentration Account on the
Business Day following the related Ineligibility Determination Date an amount
equal to the lesser of (x) the amount by which the
16
Aggregate Target Receivables Amount exceeds the Aggregate Receivables Amount
(after giving effect to the reduction thereof by the Principal Amount of such
Ineligible Receivable) and (y) the aggregate outstanding Principal Amount of all
such Ineligible Receivables less any Collections in respect of such Ineligible
Receivable thereto for applied by or on behalf of the Master Servicer (such
amount, the "Transfer Deposit Amount").
-----------------------
Upon such reduction of its Exchangeable Company Interest or upon transfer or
deposit of the Transfer Deposit Amount, as the case may be, the Company shall be
entitled to retain without recourse, representation or warranty, all subsequent
Collections (or amounts in respect thereof) received by it in respect of each
such Ineligible Receivable and such collections shall not form part of the
Participation Assets. Except as otherwise specified in any Supplement, the
obligation of the Company to reduce its Exchangeable Company interest or to pay
such Transfer Deposit Amount, as the case may be, with respect to any Ineligible
Receivables in which a security interest was granted by it, respectively, shall
constitute the sole remedy respecting the event giving rise to such obligation
available to Investor Certificateholders (or the Trustee on behalf of Investor
Certificateholders) unless such obligation is not satisfied in full in
accordance with the terms of this Agreement.
SECTION 2.06. Purchase of Investor Certificateholders' Interest in
----------------------------------------------------
the Participation.
-----------------
(a) In the event of any breach of any of the representations
and warranties set forth in Section 2.03 as of the date made, which breach has a
------------
Material Adverse Effect, then the Trustee, at the written direction of Holders
evidencing more than 50% of the Invested Amount of each affected Outstanding
Series, shall notify the Company (with a copy to the Master Servicer) to pay to
the Trust an amount calculated in accordance with subsection 2.06(b), with
------------------
reference to the Investor Certificateholders' Interest for such affected
Outstanding Series and pursuant to such notice, the Company shall be obligated
to make such payment in respect of such affected Investor Certificateholders'
Interest on the Business Day occurring not later than five (5) Business Days
after receipt of such notice on the terms and conditions set forth in subsection
----------
2.06(b) below; provided, however, that no such payment shall be required to be
------- -------- -------
made if, by such Business Day, the Master Servicer shall provide the Trustee
with a Responsible Officer's certificate to the effect that the representations
and warranties contained in Section 2.03 shall then be true and correct in all
------------
material respects and any Material Adverse Effect caused thereby shall have been
cured.
(b) If required by the provisions of subsection 2.06(a), the
------------------
Company shall deposit into the U.S. Dollar Series Concentration Account on the
Business Day preceding the Distribution Date referred to in subsection 2.06(a)
------------------
above, an amount in U.S. Dollars equal to the purchase price (as described in
the next succeeding sentence) for the affected Investor Certificateholders'
Interest for such affected Outstanding Series on such day. The purchase price
for any such purchase will be equal to (i) the Adjusted Invested Amount of such
Outstanding Series on the date on which the purchase is made plus (ii) an amount
equal to all interest accrued but unpaid on such Series up to (but excluding)
the Distribution Date on which the distribution of such deposit is scheduled to
be made pursuant to Section 9.02 plus (iii) any other amount
------------
17
required to be paid in connection therewith pursuant to any Supplement.
Notwithstanding anything to the contrary in this Agreement, the entire amount of
the purchase price deposited in the U.S. Dollar Series Concentration Account
(together with amounts on deposit in the applicable Series Principal
Concentration Subaccount) shall be distributed to the related Investor
Certificateholders on such Distribution Date pursuant to Section 9.02. If the
------------
Trustee gives notice directing the Company to made a payment as provided above,
except as otherwise specified in any Supplement, the obligation of the Company
to make such payment pursuant to this Section 2.06 shall constitute the sole
------------
remedy respecting an event of the type specified in the first sentence of this
Section 2.06 available to the applicable Investor Certificateholders (or the
------------
Trustee on behalf of such Investor Certificateholders) unless such obligation is
not satisfied in full in accordance with the terms of this Agreement.
SECTION 2.07. Affirmative Covenants of the Company. The Company
------------------------------------
hereby covenants that, until the Trust Termination Date occurs, it shall (or
with respect to clauses (a), (b), (d), (e)(ii), (m) and (o), shall direct the
Master Servicer on its behalf to):
(a) Financial Statements, Reports, etc.
-----------------------------------
(i) furnish to the Trustee, each Funding Agent and
the Rating Agencies, within 60 days after the end of each of the
first three fiscal quarters of each fiscal year, the Company's
unaudited balance sheet and related statements of income,
stockholders' equity and cash flows for the period from the
beginning of such fiscal year to the end of such quarter, all
certified by a Responsible Officer of the Company;
(ii) furnish to the Trustee, each Funding Agent and
the Rating Agencies, within 60 days after the end of each of the
first three fiscal quarters of each fiscal year, the Company's
unaudited balance sheet and related statements of income,
stockholders' equity and cash flows for the period from the
beginning of such fiscal year to the end of such quarter, all
certified by a Responsible Officer of the Company;
(iii) furnish to the Trustee and each Funding Agent,
together with the financial statements required pursuant to
clauses (i) and (ii) above, a compliance certificate signed by a
Responsible Officer of the Company stating that (x) the attached
financial statements have been prepared in accordance with GAAP
and accurately reflect the financial condition of the Company and
(y) to the best of such Person's knowledge, no Early Amortization
Event or Potential Early Amortization Event exists, or if any
Early
18
Amortization Event or Potential Early Amortization Event exists,
stating the nature and status thereof;
(iv) furnish to the Trustee and each Funding Agent,
promptly upon the furnishing thereof to the shareholders of the
Company, copies of all financial statements, financial reports
and proxy statements so furnished;
(v) furnish to the Trustee and each Funding Agent,
promptly, all information, documents, records, reports,
certificates, opinions and notices received by the Company from
an Originator under any Origination Agreement, as the Trustee or
any Funding Agent may reasonably request; and
(vi) furnish to the Trustee and each Funding Agent,
promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the
Company, or compliance with the terms of any Transaction
Document, in each case as any Funding Agent or the Trustee may
reasonably request.
(b) Annual Opinion. Deliver (or request the Master Servicer to
--------------
deliver) to the Trustee and each Funding Agent an Opinion of Counsel
substantially in the form of Exhibit A (with such modifications as are
---------
reasonably acceptable to the Trustee and any Funding Agent with respect to any
Outstanding Series and the Trustee), on the anniversary of the last day of the
calendar month on which the Effective Date occurred.
(c) Payment of Obligations; Compliance with Obligations. Pay,
---------------------------------------------------
discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all its obligations of whatever nature
(including, without limitation, all taxes, assessments, levies and other
governmental charges imposed on it), except where the amount or validity thereof
is currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on the
books of the Company. The Company shall defend the security interest of the
Trustee and the Holders in, to and under the Receivables and the other
Participation Assets, whether now existing or hereafter created, against all
claims of third parties claiming through or under the Company an Originator or
the Master Servicer. The Company will duly fulfill all obligations on its part
to be fulfilled under or in connection with each Receivable and will do nothing
to impair the rights of the Holders in such Receivable.
(d) Inspection of Property; Books and Records; Discussions.
------------------------------------------------------
Keep proper books of records and account in which entries in conformity in all
material respects with GAAP shall be made of all dealings and transactions in
relation to its business and activities; and permit representatives of each of
the Trustee and the Funding Agent with respect to any Outstanding Series upon
reasonable advance notice to visit and inspect any of its properties, examine
and make copies and abstracts from any of its
19
books and records during normal business hours on any Business Day and as often
as may reasonably be requested, subject to the Company's security and
confidentiality requirements, and to discuss the business, operations and
financial condition of the Company with officers and employees of the Company
and with its Independent Public Accountants. The first such examination or visit
by each of the Trustee and the Funding Agent during each fiscal year of the
Company and any such examination or visit following an Early Amortization Event
or Potential Early Amortization Event shall be at the cost and expense of the
Company; provided, however, that the cost and expense of any such visit or
-------- -------
examination occurring prior to an Early Amortization Event or Potential Early
Amortization Event shall be subject to a limit of $10,000. All other such
examinations or visits shall be at the cost and expense of the party or parties
making such examination or visit.
(e) Compliance with Law and Policies.
--------------------------------
(i) comply with all Requirements of Law, the
provisions of the Transaction Documents and all other material
Contractual Obligations applicable to the Company except where
the failure to so comply would not reasonably be expected to have
a Material Adverse Effect; and
(ii) perform (or request the Master Servicer on its
behalf to 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
Receivables Assets.
(f) Purchase of Receivables. Purchase Receivables solely in
-----------------------
accordance with the Origination Agreement.
(g) Delivery of Collections. In the event that the Company
-----------------------
receives Collections directly from Obligors and in pursuance of the security
interests granted by the Company hereunder, deliver and deposit, endorse, if
applicable, to the Trustee for deposit into the applicable Collection Account or
deposit an amount equal to such Collections directly into the applicable Company
Concentration Account within one (1) Business Day after its receipt thereof.
(h) Notices. Promptly give written notice to the Trustee,
-------
each Rating Agency and each Funding Agent for any Outstanding Series of:
(i) the occurrence of any Liens on Receivables (other
than Permitted Liens), Early Amortization Event or Potential
Early Amortization Event, the statement of a Responsible Officer
of the Company setting forth the details of such Early
Amortization Event or Potential Early Amortization Event and the
action taken, or which the Company proposes to take, with respect
thereto; and
20
(ii) any Lien not permitted by subsection 2.08(b)(i) on
---------------------
Receivables or any other Participation Assets.
(i) Collection Accounts, Master Collection Accounts and Company
-----------------------------------------------------------
Concentration Accounts. Take all reasonable actions necessary to ensure that the
----------------------
Collection Accounts, the Master Collection Accounts and the Company
Concentration Accounts shall be free and clear of, and defend the Collection
Accounts, the Master Collection Accounts and the Company Concentration Accounts
against, any writ, order, stay, judgment, warrant of attachment or execution or
similar process.
(j) Separate Company Existence.
--------------------------
(i) except as set forth in the Transaction Documents, maintain
its own deposit account or accounts, separate from those of any
Affiliate, with commercial banking institutions and ensure that the
funds of the Company will not be diverted to any other Person or for
other than uses of the Company, nor will such funds be commingled with
the funds of any Originator or any Subsidiary or Affiliate of any
Originator; provided, however, that the foregoing restriction shall
-------- -------
not preclude Collections from being commingled with any Originator's
funds or with an Originator's funds in the Collection Accounts, the
Master Collection Accounts and the Company Concentration Accounts for
a period of time not to exceed one (1) Local Business Day or preclude
the Company from making, in accordance with the Transaction Documents,
a distribution to the Contributor in respect of its membership
interests in accordance with the provisions of Section 2.08(l) hereof
---------------
or lending its excess cash balances to any Originator or any
Subsidiary or Affiliate of any Originator for investment (which may
include inter-Affiliate loans made by any Originator or any Subsidiary
or Affiliate of any Originator) on a pooled basis as part of the cash
management system maintained by any Originator for its consolidated
group so long as all such transactions are properly reflected on the
books and records of the Company and any Originator (and any such
Subsidiary or Affiliate of any Originator, if applicable);
(ii) to the extent that it shares the same officers or other
employees as any of its Shareholders or Affiliates, the salaries of
and the expenses related to providing benefits to such officers and
other employees shall be fairly allocated among such entities, and
each such entity shall bear its fair share of the salary and benefit
costs associated with all such common officers and employees;
(iii) to the extent that it jointly contracts with any of its
Shareholders or Affiliates to do business with vendors or service
providers or to share overhead expenses, the costs incurred
21
in so doing shall be allocated fairly among such entities, and each
such entity shall bear its fair share of such costs. To the extent
that the Company contracts or does business with vendors or service
providers where the goods and services provided are partially for the
benefit of any other Person, the costs incurred in so doing shall be
fairly allocated to or among such entities for whose benefit the goods
or services are provided, and each such entity shall bear its fair
share of such costs. All material transactions between the Company and
any of its Affiliates, whether currently existing or hereafter entered
into, shall be only on an arm's length basis;
(iv) maintain office space separate from the office space of
any Originator and its Affiliates (but which may be located at the
same address as any Originator or one of any Originator's Affiliates).
To the extent that the Company and any of its Shareholders or
Affiliates have offices in the same location, there shall be a fair
and appropriate allocation of overhead costs among them, and each such
entity shall bear its fair share of such expenses;
(v) issue separate financial statements prepared not less
frequently than annually and prepared in accordance with GAAP;
(vi) conduct its affairs strictly in accordance with its
organizational documents and observe all necessary, appropriate and
customary company formalities, including, but not limited to, holding
regular and special Shareholders' and directors, meetings appropriate
to authorize all company action, keeping separate minutes of its
meetings, passing all resolutions or consents necessary to authorize
actions taken or to be taken, and maintaining separate books, records
and accounts, including, but not limited to, payroll and intercompany
transaction accounts;
(vii) except to the extent expressly provided for any of the
Transaction Documents, not assume or guarantee any of the liabilities
of an Originator, the Master Servicer or any Affiliate thereof; and
(viii) take, or refrain from taking, as the case may be, all
other actions that are necessary to be taken or not to be taken in
order to (x) ensure that the assumptions and factual recitations set
forth in the Specified Bankruptcy Opinion Provisions remain true and
correct and (y) comply with those procedures described in such
provisions.
(k) Preservation of Company Existence. (i) Preserve and maintain
---------------------------------
its company existence, rights, franchises and privileges in the jurisdiction of
its
22
formation and (ii) qualify and remain qualified in good standing as a foreign
corporation in each jurisdiction where such qualification is required other than
any jurisdiction where the failure so to qualify would not have a Material
Adverse Effect.
(l) Assessments. Promptly pay and discharge all taxes, assessments
-----------
levies and other governmental charges imposed on it except such taxes,
assessments, levies and other governmental charges that (i) are being contested
in good faith by appropriate proceedings and for which the Company shall have
set aside on its books adequate reserves or (ii) the failure to pay, satisfy or
discharge would not reasonably be expected to result in a Material Adverse
Effect.
(m) Obligations. Defend the security of the Trust in, to and under
-----------
the Receivables and the other Participation Assets, whether now existing or
hereafter created, against all claims of third parties claiming through the
Company. The Company will duly fulfill in accordance with the Servicing
Agreement all obligations on its part to be fulfilled under or in connection
with each Receivable and will do nothing to materially impair the rights of the
Company in such Receivable.
(n) Enforcement of Origination Agreement. The Company shall use
------------------------------------
its best efforts to enforce all rights held by it under the Origination
Agreements.
(o) Maintenance of Property. Keep or request the Master Servicer
-----------------------
to keep all property and assets useful and necessary to permit the monitoring
and collection of Receivables.
(p) Bankruptcy. Cooperate with 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.
(q) Applicability of Stamp Duty Provisions. The following
--------------------------------------
provisions of this Section 2.07(q) through 2.07(t) shall apply if, at any time
--------------- -------
after the date of this Agreement, any circumstances arise or become known to the
Company which gives the Company reason to believe that any Relevant Document
does not or (in the case of a Relevant Document not yet executed at the relevant
time) would not qualify for Section 42 Exemption. For the purposes of the
foregoing (and for the avoidance of doubt):
(i) the circumstances referred to shall include, so far as
relevant, any failure by the United Kingdom Stamp Office to adjudicate
a Relevant Document as being free of any United Kingdom Stamp Duty
where a Rating Agency has required that
23
such document should be so adjudicated as an indication that Section
42 Exemption is available for the Relevant Documents as a condition of
maintaining or granting an Appropriate Rating, any change in law or
official practice, any transaction entered into by the Company or any
of its Affiliates or the Company becoming aware of any legal rule or
legal interpretation not mentioned in the U.K. Tax Opinion; and
(ii) the reference to any Relevant Document includes both
documents which have been executed at the relevant time and documents
which may be required to be executed thereafter for the purposes
mentioned in the definition of "Relevant Document".
(r) Stamp Duty Confirmation. Where Section 2.07(q) applies, the
----------------------- ---------------
Company shall:
(i) notify the Trustee of the relevant circumstances promptly
after becoming aware of the same; and
(ii) instruct ▇▇▇▇▇▇▇▇ Chance Limited Liability Partnership (or
any other U.K. Tax Advisor) to confirm (so far as it is able) in a
manner acceptable to the Trustee that:
(A) where the U.K. Tax Opinion considers the application
of stamp duty to the Relevant Document in question, the
circumstances mentioned in Section 2.07(q) above do not require
the U.K. Tax Opinion to be altered or qualified in any way as
regards that Relevant Document;
(B) where the U.K. Tax Opinion does not consider the
application of stamp duty to the Relevant Document in question,
the document in question fulfills (or, as the case may be, would
fulfill) the conditions for being eligible to be adjudicated free
of ad valorem stamp duty under Section 42 of Finance ▇▇▇ ▇▇▇▇; or
(C) in either case, it would not be necessary to produce
the document in question (i) as evidence in a court in the United
Kingdom in order to enable the Company to enforce its rights in
respect of the Receivables against the Obligors or (ii) where
relevant, for any of the purposes described in Section
5.19(b)(ii) of the Contribution Agreement;
and, if such confirmation cannot be given, to advise as to the amount
of stamp duty (including any interest and penalties) which would be
chargeable on the Relevant Document in question (the
24
"Applicable Stamp Duty Amount" in relation to that document) and
----------------------------
additionally as to the amount of Stamp Duty which is chargeable on any
existing Relevant Document.
(s) Stamp Duty Program Termination Event. Where the Company notifies
-------------------------------------
the Trustee pursuant to Section 2.07(r)(i) above, a Program Termination Event
------------------
shall be deemed to occur upon the expiration of a period of ninety (90) Business
Days after the date of receipt of such notice (the "Stamp Duty Program Cure
-----------------------
Period") unless, before such expiration, one of the conditions set out in
------
Section 2.07(s)(i)(ii), (iii) or (iv) below is satisfied:
---------------------- ----- ----
(i) the Company shall have received an opinion from ▇▇▇▇▇▇▇▇
Chance Limited Liability Partnership (or any other U.K. Tax Advisor)
containing a confirmation in the terms set out in Section
2.07(r)(ii)(a), (b) or (c) above and either:
(A) where any debt which is secured on any Participation
(or any interest in a Participation) under this Pooling Agreement
is already rated by the Rating Agencies on a basis which takes
into account this Agreement without reference to any credit
support provided through the Asset Purchase Agreement or
otherwise, the Rating Agencies have confirmed such opinion is
adequate to maintain the existing rating; or
(B) where such debt is not yet rated, the Rating
Agencies have confirmed that such opinion is adequate to allow
them to grant an appropriate rating on such a basis without a
Rating Agency requirement for additional adjudication of the
Stamp Office indicating that the Section 42 exemption is
available for Relevant Documents; or
(ii) the Company shall (and, if applicable, shall have procured
that the Trustee, the Contributor and any Affiliate of the Company
shall) have altered the relationships between members of the Stamp
Duty Group with a view to ensuring that Section 42 Exemption is
available in relation to any Relevant Documents (such exemption to be
confirmed by the delivery of an appropriate tax opinion acceptable to
the Rating Agency if requested by the Funding Agent together with, if
required by any Rating Agency, evidence of an adjudication of a
Relevant Document (specified by the Rating Agency) by the Stamp Office
indicating that Section 42 Exemption is available for Relevant
Documents; or
(iii) the Company shall have agreed with the Trustee what amount
should be credited to the Stamp Duty Reserve Accounts in order to
provide against any possible requirement for
25
stamp duty to be paid on any Relevant Document referred to in
Section 2.07(r) above and the said amount shall have been
---------------
credited to the Stamp Duty Reserve Accounts; provided that:
-------- ----
(A) the Trustee undertakes to act in good faith in
agreeing that said amount having regard to (inter alia) the
Applicable Stamp Duty Amount referred to in Section
-------
2.07(r)(ii) above (and shall have no obligation to do so to
-----------
the extent the Applicable Stamp Duty Amount is not clearly
prescribed in the relevant opinion) and any requirements of
the Rating Agencies; and
(B) the amount to be credited to the Stamp Duty
Reserve Accounts in accordance with this Section
-------
2.07(s)(iii) shall not exceed 8% of the outstanding balance
------------
of all Receivables; or
(iv) the Company and Trustee shall have agreed as to what
change should be made to the Discounted Percentage in order to
reflect the relevant circumstances referred to in Section
-------
2.07(q).
-------
No Offer Letter may be delivered during the Cure Period unless and
until one of the conditions set out in (i), (ii), (iii) and (iv) above have been
satisfied.
(t) Stamp Duty Program Termination Event. Notwithstanding the
------------------------------------
provisions of Section 2.07(s) above, where the Company notifies the Trustee
--------------
pursuant to Section 2.07(r)(ii) above and such notification relates to any
-------------------
document which is an Existing Relevant Document, a Program Termination Event
shall be deemed to occur immediately upon the expiration of a period of seven
(7) Business Days after the date of receipt of such notice unless, before such
expiration, either:
(i) the Company shall have received an opinion from
▇▇▇▇▇▇▇▇ Chance (or any other U.K. Tax Advisor) containing a
confirmation in the terms set out in Section 2.07(r)(ii)(a), (b)
---------------------- ---
or (c) above in relation to such existing Relevant Documents; or
---
(ii) the Company shall have agreed with the Trustee (in
consultation with the Rating Agencies) what amount should be
credited to the Stamp Duty Reserve Accounts in order to provide
against any possible requirement for stamp duty to be paid on any
existing Relevant Document referred to in Section 2.07(r) above
---------------
and said amount shall have been credited to the Stamp Duty
Reserve Accounts provided that:
(A) the Trustee undertakes to act in good faith in
agreeing that said amount having regard to, inter alia,
the Applicable Stamp Duty Amount relating to existing
26
Relevant Documents referred to in Section 2.07(r)(ii)
-------------------
above (and shall have no obligation to do so to the extent
the Applicable Stamp Duty Amount is not clearly prescribed
in the relevant opinion) and any requirements of the Rating
Agencies; and
(B) the amount to be credited to the Stamp Duty
Reserve Accounts in accordance with this Section 2.07(t)
---------------
shall not exceed 8% of the outstanding balance of all
Receivables which have already been acquired by the Company
to which an existing Relevant Document relates; or
(iii) Receivables which are the subject of any existing
Relevant Documents referred to in Section 2.07(r) above are dealt
---------------
with according to Section 2.06 of the Contribution Agreement as
if they were Ineligible Receivables and a Dilution Adjustment
Payment is made to the Company in respect of such Receivables
within seven (7) Business Days of the commencement of the Cure
Period; or the Company and the Trustee shall have agreed what
change should be made to the Discounted Percentage in order to
reflect the relevant circumstances referred to in Section 2.07(q)
---------------
provided that:
(iv) the Trustee undertakes to act in good faith in
agreeing that said amount having regard to, inter alia, the
Applicable Stamp Duty Amount relating to existing Relevant
Documents referred to in Section 2.07(r)(ii) above (and shall
-------------------
have no obligation to do so to the extent the Applicable Stamp
Duty Amount is not clearly prescribed in the relevant opinion)
and any requirements of the Rating Agencies; and
(v) the amount to be credited to the Stamp Duty Reserve
Accounts in accordance with this Section 2.07(t) shall not exceed
---------------
8% of the outstanding balance of all Receivables which have
already been acquired by the Company to which an existing
Relevant Document relates; or
(u) Release of Funds from Stamp Duty Reserve Accounts. Funds
-------------------------------------------------
shall be released from the Stamp Duty Reserve Accounts in the circumstances and
in the amounts set out in this Section 2.07(u). In each case the relevant amount
---------------
shall be released to the Company and the amount released shall cease to be
subject to any security interests granted by the Company to the Trustee or
otherwise to or for the benefit of the Investors Certificateholders or to any
restrictions contained in the Transaction Documents over the assets of the
Company. Amounts shall be released from the Stamp Duty Reserve Accounts as
follows:
27
(i) if (A) any amount (or any part of an amount)
standing to the credit of the Stamp Duty Reserve Accounts
shall have been so credited in order to provide against the
payment of stamp duty on any particular Relevant Document
(such amount being the "Attributable Stamp Duty Reserve
-------------------------------
Amount" in relation to the Relevant Document in question),
------
and (B) the Contributor or the Company or any of their
Affiliates (or any other person on their behalf) shall have
paid any amount either (x) to the Inland Revenue in order to
secure the stamping of the Relevant Document in question; or
(y) to any other person in order to indemnify that person
for the payment of stamp duty on the Relevant Document in
question;
an amount equal to the amount paid by the Contributor, the
Company or any Affiliate (or on their behalf) as mentioned
in (B) above (but not exceeding the relevant Attributable
Stamp Duty Reserve Amount) shall be released to the Company;
(ii) if any Relevant Document is adjudicated by the
Inland Revenue as being free of ad valorem stamp duty and
any amount standing to the credit of the Stamp Duty Reserve
Accounts represents an Attributable Stamp Duty Reserve
Amount in relation to that Relevant Document, said amount
shall be released provided that no amount shall be released
-------------
from the Stamp Duty Reserve Accounts pursuant to this
Section 2.07(u) if any Rating Agency shall have indicated
---------------
that such release would cause a downgrading of any debt
which is secured on the debt under this Agreement;
(iii) subject to the written consent of the Trustee,
if the Rating Agencies shall confirm (following a request
from the Company or otherwise) that the release of a given
amount from the Stamp Duty Reserve Accounts would not cause
a down-grading of any debt which is secured on the debt
under this Agreement without reference to any credit support
provided through the Asset Purchase Agreement or otherwise;
and
(iv) if at any time the Company shall either (a) have
no outstanding rights or claims against any Obligors and
shall have ceased to acquire any rights in respect of
Receivables, or (b) shall have discharged all of its
liabilities under this Agreement and there is no prospect of
any further Participation being granted, any funds remaining
in the Stamp Duty Reserve Accounts at that time shall be
released.
(v) Further Assurances. Take all other actions as
------------------
may be reasonably requested, from time to time, by the Trustee or the Funding
Agent to ensure that no action is taken by the Company or any Affiliate which
would or might result in (x) any member of the Stamp Duty Group ceasing to be
associated with any other
28
member or members of the Stamp Duty Group for the purposes of Section 42 Finance
Act 1930 or (y) the provisions of Section 27 Finance ▇▇▇ ▇▇▇▇ applying to any
transfer of UK Receivables made between members of the Stamp Duty Group.
(w) Enforcement of Contribution Agreement. The Company shall
-------------------------------------
enforce its rights under the Contribution Agreement and shall cause the
Contributor to enforce the Contributor's rights under the Origination
Agreements, in each case, including, without limitation, the right to receive
Adjustment Payments and indemnification rights.
SECTION 2.08. Negative Covenants of the Company. The Company hereby
---------------------------------
covenants that, until the Trust Termination Date occurs, it shall not directly
or indirectly:
(a) Limitation on Liabilities. Create, incur, assume or suffer to
-------------------------
exist any Indebtedness, except (i) Indebtedness evidenced by the Subordinated
Loan, (ii) liabilities (including accrued and contingent liabilities) or
obligations arising under or in respect of the Transaction Documents, including
but not limited to liabilities and obligations representing fees, expenses and
indemnities payable pursuant to and in accordance with the Transaction Documents
and (iii) immaterial amounts due and payable in the ordinary course of business
of a special purpose company, provided that any Indebtedness permitted hereunder
and described in clauses (i) and (iii) shall be payable by the Company solely
from funds available to the Company which are not otherwise required to be
applied to the payment of any amounts by the Company pursuant to any Pooling and
Servicing Agreement.
(b) Limitation on Transfers of Receivables, etc. Except as
--------------------------------------------
otherwise permitted by the Transaction Documents, at any time sell, transfer,
grant a Participation and security interest in or otherwise dispose of any of
the Receivables, Related Property, Participation Assets or the proceeds thereof
pursuant to:
(i) any Lien Creation except for Permitted Liens; or
(ii) any Investment except in respect of or in connection with
(A) the purchase of Receivables and Related Property from any
Originator or its Affiliates, (B) an advance, distribution or loan
made to an Originator or (C) investments of proceeds as contemplated
in any Pooling and Servicing Agreement.
(c) Limitation on Guarantee Obligations. Become or remain liable,
-----------------------------------
directly or contingently, in connection with any Indebtedness or other liability
of any other Person, whether by guarantee, endorsement (other than endorsements
of negotiable instruments for deposit or collection in the ordinary course of
business), agreement to purchase or repurchase, agreement to supply or advance
funds, or otherwise other than under or as contemplated by any Transaction
Documents.
29
(d) Limitation on Fundamental Changes. Except to the extent
---------------------------------
permitted under the Transaction Documents, enter into any merger, consolidation
or amalgamation, or liquidate, to the fullest extent permitted by law, wind up
or dissolve itself (or suffer any liquidation or dissolution), or make any
material change in its present method of conducting business, or convey, sell,
lease, assign, transfer, grant a Participation, security interest in or
otherwise dispose of, all or substantially all of its property, business or
assets other than the Participation and the security interests contemplated
hereby.
(e) Business. Engage at any time in any business or business
--------
activity other than the acquisition of Receivables pursuant to the related
Origination Agreements, the security interests hereunder, the other transactions
contemplated by the Transaction Documents, the incurrence of Indebtedness under
the Subordinated Company Interests, any Subordinated Loan as contemplated in the
Transaction Documents, and any activity incidental to the foregoing and
necessary or convenient to accomplish the foregoing, or otherwise contemplated
by any of the Transaction Documents or enter into or be a party to any agreement
or instrument other than in connection with the foregoing.
(f) Agreements. Become a party to any indenture, mortgage,
----------
instrument, contract, agreement, lease or other undertaking, except the
Transaction Documents, the Subordinated Interests, any Subordinated Loan as
contemplated in the Transaction Documents, leases of office space, equipment or
other facilities for use by the Company in its ordinary course of business,
employment agreements, service agreements, agreements relating to shared
employees and the other Transaction Documents and agreements necessary to
perform its obligations under the Transaction Documents, (ii) issue any power of
attorney (except to the Trustee or the Master Servicer or except for the purpose
of permitting any Person to perform any ministerial functions on behalf of the
Company that are not prohibited by or inconsistent with the terms of the
Transaction Documents), or (iii) other than pursuant to the terms of the
Origination Agreements, amend, supplement, modify or waive any of the provisions
of the Origination Agreement or request, consent or agree to or suffer to exist
or permit any such amendment, supplement, modification or waiver or exercise any
consent rights granted to it thereunder unless such amendment, supplement,
modification or waiver or such exercise of consent rights would not have a
Material Adverse Effect with respect to the Company or any Outstanding Series
and the Rating Agency Condition shall have been satisfied with respect to any
such amendments, supplements, modifications or waivers.
(g) Policies. Make any change or modification 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 and the Funding Agent shall have consented with respect thereto.
(h) Instruments. Unless delivered to the Trustee pursuant to
-----------
subsection 2.01(b), the Company shall not take any action to cause any U.S.
------------------
Receivable not evidenced by an "instrument" (as defined in the applicable UCC or
other similar applicable statute or legislation) upon origination to become
evidenced by an instrument, except in connection with its enforcement or
collection of a Defaulted Receivable.
30
(i) Offices. Move the location of the Company'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 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
ownership or security interest in all Receivables now owned or hereafter
created.
(j) Change in Name. Change the Company's name, identity or
--------------
corporate structure in any manner that would or is likely (i) to make any
financing statement or continuation statement (or other similar instrument)
relating to this Agreement seriously misleading within the meaning of Section 9-
402(g) of the applicable UCC (or analogous provision of any other similar
applicable statute or legislation) or (ii) to impair the perfection of the
Trust's interest in any U.S. Receivable under any other similar law, without 30
days' prior written notice to the Trustee and each Rating Agency.
(k) Charter. 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 subsection 2.08(k), the Company may make
------------------
amendments, changes or modifications pursuant to changes in law of the
jurisdiction of its formation or amendments to change the Company's name
(subject to compliance with clause (j) above), registered agent or address of
registered office).
(l) Limitation on Restricted Payments. Declare or pay any dividend
---------------------------------
on, or make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of, any shares of any class of capital stock of the Company,
whether now or hereafter outstanding, or make any other distribution in respect
thereof, either directly or indirectly, whether in cash or property or in
obligations of the Company (such declarations, payments, setting apart,
purchases, redemptions, defeasance, retirements, acquisitions and distributions
being herein called "Restricted Payments"), unless (i) at the date such
-------------------
Restricted Payment is made, the Company shall have made all payments in respect
of its obligations pursuant to the Transaction Documents, and (ii) the
Restricted Payment Test for each outstanding Series is satisfied on such date;
provided, however, that such limitation on Restricted Payments shall not
-------- -------
preclude the Company from making, in accordance with the Transaction Documents,
a distribution or paying as a dividend to its Shareholder in respect of the
Shares in the Company to the extent of the Principal Amount of additional
Eligible Receivables contributed to the Company by the Contributor on such day;
provided that no Early Amortization Event or Potential Early Amortization Event
--------
has occurred and is continuing.
(m) Accounting for Purchases. Except in accordance with any
------------------------
Requirement of Law, prepare any financial statements which shall account for the
transactions contemplated under any Origination Agreement or the transactions
31
contemplated hereunder in any manner other than, as a contribution of the
Receivables from Huntsman International to the Company and as a grant of secured
Participation in the Receivables from time to time by the Company to the Trust,
respectively, or in any other respect account for or treat the transactions
contemplated under any Origination Agreement or the transactions contemplated
hereunder (including for financial accounting purposes, except as required by
law) in any manner other than as a contribution of the Receivables from Huntsman
International to the Company and as a grant of a secured Participation in the
Receivables from the Company to the Trust, respectively; provided, however, that
-------- -------
this subsection shall not apply for any tax or tax accounting purposes.
(n) Extension or Amendment of Receivables. 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 the
Contributor or any Originator, as the case may be, and the related Obligor with
respect to such Receivable; provided that if the Company cancels an invoice
related to a Receivable, either (i) such invoice must be replaced with an
invoice relating to the same transaction as the cancelled invoice of equal or
greater Principal Amount on the same Business Day as the cancellation; (ii) such
invoice must be replaced with an invoice relating to the same transaction as the
cancelled invoice of lesser Principal Amount on the same Business Day as the
cancellation and the Company shall make a Cash Dilution Payment in an amount
equal to the difference between such cancelled and replacement invoices; or
(iii) the Company must make a Cash Dilution Payment, in an amount equal to the
full value of such cancelled invoice; provided that the Company may decrease the
amount of its Exchangeable Company Interest in an amount equal to the Cash
Dilution Payment required to be made hereunder and pursuant to Subsection
----------
4.05(a) of the Servicing Agreement.
-------
(o) 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 Origination
Agreements.
(p) Origination Agreements. Take any action under the Origination
----------------------
Agreements that could reasonably be expected to have a Material Adverse Effect.
(q) Limitation on Investments, Loans and Servicer Advances. Make
------------------------------------------------------
any advance, loan, extension of credit or capital contribution to, or purchase
any
32
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person,
except for any Exchangeable Company Interest, any Subordinated Company
Interests, any Subordinated Loan, the Receivables and the other Participation
Assets or as otherwise contemplated under the Transaction Documents.
(r) Limitation on Mergers, Acquisitions and Asset Sales. Enter
---------------------------------------------------
into any agreement to merge with or acquire another company or sell all or
substantially all of the Company's assets, other than as permitted in Section
-------
6.03 hereof.
----
SECTION 2.09. Addition of Approved Currency, Approved Originator and
------------------------------------------------------
Addition of Approved Obligor Country. At the written request of the Master
------------------------------------
Servicer delivered to the Company, the Trustee and any Funding Agent, the
addition of a currency as an Approved Currency, the addition of an originator as
an Approved Originator, the addition of a jurisdiction as an Approved Obligor
Country or as an Approved Contract Jurisdiction after the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇
Date shall be permitted upon satisfaction of the relevant conditions set forth
in this Section 2.09, the relevant Origination Agreement and any Supplement.
------------
(a) Approved Currency. The Company, the Trustee and each Funding
-----------------
Agent shall have received evidence that the Rating Agency Condition shall have
been satisfied prior to the addition of such currency.
(b) Approved Originator.
-------------------
(i) such Originator is an Affiliate of Huntsman
International;
(ii) the Master Servicer, the Company, the Trustee and the
Funding Agent shall have received a copy of the Policies of such
Originator, which Policies shall be in form and substance satisfactory
to the Master Servicer, the Servicer Guarantor, the Company and each
Funding Agent;
(iii) the governing law of the Contracts relating to the
Receivables originated by such proposed Originator is the law of an
Approved Contract Jurisdiction;
(iv) the Company, the Trustee and each Funding Agent shall
have received confirmation that there is no pending or threatened
action or proceeding affecting such Originator before any Governmental
Authority that could reasonably be expected to have a Material Adverse
Effect with respect to it;
(v) the Trustee shall have received an Opinion of Counsel in
form and substance satisfactory to it, each Rating Agency and any
Funding Agent from a nationally recognized law firm qualified to
practice in the jurisdiction in which such
33
Originator is located to the effect that the sale of Receivables by
such Originator to the Contributor or the Company (or such other
entity as shall have been agreed) constitute true sales of such
Receivables to the Contributor or the Company or such entity;
(vi) the Trustee shall have received an Opinion of Counsel
from a nationally recognized law firm in form and substance
satisfactory to it, each Rating Agency and any Funding Agent together
with such other opinions as were rendered on the Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇ Date with respect to the Originators from one or more
nationally recognized law firms authorized to practice law in the
jurisdiction in which such Originator is located, the jurisdictions
governing the contracts originated by such Originator and in New York;
(vii) the Master Servicer and Servicer Guarantor shall have
agreed in writing to service such Originator's Receivables in
accordance with the terms and conditions of the Servicing Agreement
and the Servicer Guarantor shall have agreed to guarantee the Master
Servicer's obligations in connection therewith;
(viii) the Liquidation Servicer shall have notified the Company
and the Rating Agencies and the Funding Agent that a Standby
Liquidation System is in place for such proposed Originator;
(ix) the Company, the Trustee and each Funding Agent shall
have received a certificate prepared by a Responsible Officer of the
Master Servicer certifying that after giving effect to the addition of
such Originator, the Aggregate Target Receivables Amount shall be
equal to or less than the Aggregate Receivables Amount on the related
Originator Addition Date;
(x) such Originator shall have executed an Additional
Originator Joinder Agreement in the form of Schedule 8.04(b) attached
to the applicable Receivables Purchase Agreement;
(xi) such Originator shall have executed, filed and recorded,
at its own expense, appropriate financing statements with respect to
the Receivables (and Related Assets) originated and proposed to be
sold by it in such manner and such jurisdictions as are necessary to
perfect the Company's continuing first priority perfected security
interest in such Receivables;
(xii) the Company and each Funding Agent shall be satisfied
that there are no Liens on the Receivables to be sold by
34
such Originator, except as may be provided in the relevant Origination
Agreement;
(xiii) the Collection Accounts with respect to the Receivables
to be sold or contributed by such Originator shall have been
established in the name of the Company and the Company shall have
caused the Trustee to have a first priority perfected security
interest in such accounts; and
(xiv) if the aggregate Principal Amount of Receivables added
to the pool of Receivables by Additional Originators added as Approved
Originators pursuant to the provisions of this Section 2.09 in the
------------
immediately preceding twelve (12) calendar months including the
aggregate Principal Amount of all Receivables of such proposed
Originator proposed to be sold by such proposed Originator is greater
than ten percent (10%) of the Aggregate Receivables Amount on such
date before giving effect to the addition of such proposed Originator,
such calculation to be made immediately prior to the proposed addition
of such Originator, then (i) each Funding Agent shall have consented
to the addition of such Originator, (ii) the historical aging and
liquidation schedule information of the Receivables originated by such
proposed Originator and other data relating to the Receivables is
satisfactory to each Funding Agent and (iii) the Company, the Trustee
and each Funding Agent shall have received evidence that the Rating
Agency Condition shall have been satisfied with respect to the
addition of such Originator. If the calculation set forth above
results in a percentage which is less than or equal to ten percent
(10%), then satisfaction of the Rating Agency Condition shall not be
required with respect to the addition of such Approved Originator.
(c) Approved Obligor Country.
------------------------
(i) the Company, the Trustee and each Funding Agent shall
have received evidence that the Rating Agency Condition shall have
been satisfied with respect to the inclusion of such jurisdiction as
an Approved Obligor Country;
(ii) the Company, the Trustee and each Funding Agent shall
have consented in advance, in writing, to such inclusion of a
jurisdiction as an Approved Obligor Country; and
(iii) the Company, the Trustee and each Funding Agent shall
have consented in advance, in writing, to such inclusion of a
jurisdiction as an Approved Obligor Country.
35
(d) Approved Contract Jurisdiction.
------------------------------
(i) the Company, the Trustee and each Funding Agent shall have
received evidence that the Rating Agency Condition shall have been
satisfied with respect to the inclusion of such jurisdiction as an
Approved Contract Jurisdiction; and
(ii) the Company, the Trustee and each Funding Agent shall have
consented in advance, in writing, to inclusion of a jurisdiction as an
Approved Contract Jurisdiction.
SECTION 2.10. Removal and Withdrawal of Originators and Approved
--------------------------------------------------
Originators.
-----------
(a) At the written request of the Company or the Master Servicer, an
Approved Originator may be removed or terminated as an originator and an
Approved Originator may withdraw as an originator, provided that, in each case,
--------
(i) such removal or withdrawal is in accordance with the
applicable Origination Agreement,
(ii) each Funding Agent shall have given its prior written
consent to such removal, termination or withdrawal, such consent not
to be unreasonably withheld,
(iii) the Rating Agency Condition shall have been satisfied with
respect thereto,
(iv) no Program Termination Event or Potential Termination
Event has occurred and is continuing or would occur as a result
thereof,
(v) the Trustee shall have received prior written notice of
such removal, termination or withdrawal (accompanied by a pro forma
Daily Report which confirms that the Aggregate Allocated Receivables
Amount will be greater than or equal to the Aggregate Target
Receivables Amount after giving effect to such removal, termination or
withdrawal).
(b) An Originator that is removed, terminated or withdraws shall have
a continuing obligation with respect to Receivables previously sold or
contributed by it pursuant to the relevant Origination Agreement (including
making Originator Dilution Adjustment Payments, Originator Adjustment Payments
and payments in respect of indemnification).
36
ARTICLE III
RIGHTS OF HOLDERS AND ALLOCATION
--------------------------------
AND APPLICATION OF COLLECTIONS
------------------------------
THE FOLLOWING PORTION OF THIS ARTICLE III
IS APPLICABLE TO ALL SERIES.
SECTION 3.01. Establishment of the Company Concentration Accounts,
----------------------------------------------------
Series Concentration Accounts, Stamp Duty Reserve Accounts and General Reserve
------------------------------------------------------------------------------
Accounts; Certain Payments and Allocations.
------------------------------------------
(a) Trustee's Duties in Respect of the Company Concentration
--------------------------------------------------------
Accounts, Series Concentration Accounts, Stamp Duty Reserve Accounts and General
--------------------------------------------------------------------------------
Reserve Accounts.
----------------
(i) The Trustee, for the benefit of the Company, as sole
beneficial owner shall cause to be established and maintained in
the name of the Trustee, with an Eligible Institution or with the
corporate trust department of the Trustee or an Eligible
Institution, a segregated account for each Approved Currency and,
at the instruction of the Master Servicer, an additional
segregated account for each currency designated as an Approved
Currency after the date hereof (each a "Company Concentration
---------------------
Account" and, collectively, the "Company Concentration
------- ---------------------
Accounts"), bearing a designation clearly indicating that the
--------
funds deposited therein are held for the benefit of the Company.
Collections on deposit in the applicable Collection Account and
Master Collection Account established pursuant to Section 2.09 of
------------
the Contribution Agreement, shall be transferred to the
applicable currency Company Concentration Account on the next
Business Day following the day on which such Collections are
received.
(ii) The Trustee shall also cause to be established and
maintained in the name of the Trustee, as Trustee of the Trust
and for the benefit of the Investor Certificateholders, with such
institution for each Approved Currency, individual accounts for
each Outstanding Series (each, for each Series a "Series
------
Concentration Account" and, collectively, the "Series
---------------------
Concentration Accounts"). Each Series Concentration Account shall
----------------------
be solely and beneficially owned by the relevant Series for the
benefit of the Investor Certificateholders of such Series and
shall bear a designation clearly indicating that the funds
deposited therein are held for the benefit of the relevant
Series.
(iii) The Trustee shall further establish or cause to be
established for each Series, so long as such Series is an
Outstanding Series, subaccounts of the Series Concentration
37
Accounts with respect to each Series (respectively, the "Series
------
Principal Concentration Subaccount", "Series Non-Principal
---------------------------------- --------------------
Concentration Subaccount" and "Series Accrued Interest
------------------------ -----------------------
Subaccount" and collectively, the "Series Concentration
---------- --------------------
Subaccounts". Schedule 1 hereto identifies each Collection
----------- ----------
Account, each Master Collection Account, each Company
Concentration Account, each Series Concentration Account and
subaccounts thereof and each Company Receipts Account by setting
forth the account number of each such account and subaccount, the
currency of the Collections or other amounts to be deposited into
such account, the location of such account, the account
designation of each such account and the name of the institution
with which each such account has been established.
(iv) On or before the Effective Date, the Trustee shall
establish and maintain for the benefit of the Company, as sole
beneficial owner, three segregated accounts (one for each
Approved Currency) (each a "Stamp Duty Reserve Account" and
--------------------------
collectively, the "Stamp Duty Reserve Accounts") bearing a
---------------------------
designation that the funds deposited therein are held for the
benefit of the Company, which account shall be under the sole
dominion and control of the Trustee and in which the Trustee
shall have a first priority projected security interest. If an
amount is required to be credited to the Stamp Duty Reserve
Accounts to satisfy any of the provisions of Sections 2.07(q),
----------------
(r), (s) or (t), the Company shall remit or cause to be remitted
---------------
such amount as is necessary to ensure that the combined balance
of the Stamp Duty Reserve Accounts is equal to the amount
required to satisfy any such provisions.
(v) On or before the Effective Date, the Trustee shall
establish and maintain for the benefit of the Investor
Certificateholders three segregated accounts (one for each
Approved Currency) (each a "General Reserve Account" and
collectively, the "General Reserve Accounts") bearing a
------------------------
designation that the funds deposited therein are held for the
benefit of the Investor Certificateholders. There shall be
separate subaccounts of the General Reserve Accounts for each
outstanding Series to the extent funds are required to be
deposited therein with respect to such Series pursuant to be
related Supplement. Funds shall be deposited to and withdrawn
from the applicable subaccount of the General Reserve Accounts as
and to the extent provided in each Supplement.
(b) Authority of the Trustee in Respect of Accounts.
-----------------------------------------------
(i) The Trustee shall have a first priority perfected
security interest in each of the Collection Accounts, the Master
Collection Accounts, the Company Concentration Accounts, the
38
Stamp Duty Reserve Accounts and the General Reserve Accounts.
Each of the Series Concentration Accounts, the Stamp Duty Reserve
Accounts and the General Reserve Accounts shall be under the sole
dominion and control of the Trustee for the benefit of the
Holders. If, at any time, the Master Servicer has actual notice
or knowledge that any institution holding the Collection
Accounts, the Master Collection Accounts, the Company
Concentration Accounts, the Stamp Duty Reserve Accounts or the
General Reserve Accounts has ceased to be an Eligible
Institution, the Master Servicer shall direct the Company to
establish within thirty (30) days a substitute account therefor
with an Eligible Institution, transfer any cash and any Eligible
Investments to such new account and from the date any such
substitute accounts are established, such newly established
accounts shall be the Collection Accounts, the Master Collection
Accounts, the Company Concentration Accounts, the Stamp Duty
Reserve Accounts and the General Reserve Accounts, as applicable.
Neither the Company, the Master Servicer nor any person or entity
claiming by, through or under the Company or the Master Servicer,
shall have any right, title or interest in, except to the extent
expressly provided under the Transaction Documents, or any right
to withdraw any amount from, the Series Concentration Accounts,
the Stamp Duty Reserve Accounts or the General Reserve Accounts.
So long as the security interest created hereunder subsists
neither the Company nor the Master Servicer nor any person or
entity claiming by, through or under the Company or the Master
Servicer shall have any right to withdraw any amount from the
Company Concentration Accounts except to the extent expressly
provided in the Transaction Documents. Pursuant to the authority
granted to the Master Servicer in subsection 2.02(b) of the
------------------
Servicing Agreement, the Master Servicer shall have the power to
instruct the Trustee, in writing, to make withdrawals from and
payments to the Company Concentration Accounts, the Stamp Duty
Reserve Accounts and the General Reserve Accounts for the
purposes of carrying out the Master Servicer's or Trustee's
duties hereunder.
(ii) The Master Servicer agrees to give written direction
(which may be included within any Daily Report to be delivered to
the Trustee by 12:30 p.m. London time on each Business Day) to
apply all Aggregate Daily Collections with respect to the
Receivables and to make all other applications and allocations
described in Article III and in the Supplement with respect to
-----------
each Outstanding Series.
(iii) Each Series of Investor Certificates shall represent
Fractional Undivided Interests in the right to receive amounts
39
calculated by reference to Collections and other amounts at the
times and in the amounts specified in this Article III (as
-----------
supplemented by the Supplement related to such Series) to be
deposited in the Collection Accounts or Master Collection
Accounts and transferred to the Company Concentration Accounts
and any other accounts secured for the benefit of the Investor
Certificateholders or paid to the Investor Certificateholders
(with respect to each outstanding Series, the "Investor
--------
Certificateholders' Interest"). The Exchangeable Company Interest
----------------------------
shall represent the Company's exclusive beneficial ownership
interest in the Participation Assets subject to any security
interest granted by it under this Agreement and the Subordinated
Company Interests, if any, shall represent the rights comprising
such Subordinated Company Interests pursuant to the related
Supplement; provided, however, that no such Exchangeable Company
-------- -------
Interest or Subordinated Company Interests shall represent any
interest in any Trust Account and any other accounts maintained
for the benefit of the Investor Certificateholders, except as
specifically provided in this Article III.
-----------
(c) Establishment of the Company Receipt Accounts. The
---------------------------------------------
Company, for its own benefit and as sole beneficial owner shall cause to be
established and maintained in its name, a segregated account for each Approved
Currency (each a "Company Receipts Account" and, collectively the "Company
------------------------ -------
Receipts Accounts"), bearing a designation clearly indicating that the funds
-----------------
deposited therein are held for the benefit of the Company.
(d) Additional Accounts. The Company may establish and
-------------------
maintain in the name of the Trustee, as trustee of the Trust, segregated
accounts in addition to or in place of the segregated accounts set forth in
Schedule 1, provided that such accounts are established and maintained at an
---------- --------
Eligible Institution and, provided, further, that prior to establishing such
-------- -------
accounts, the Company shall have (i) obtained the prior written consent of any
Funding Agent and (ii) the Master Servicer shall have delivered an Opinion of
Counsel from a nationally recognized law firm to the effect that such changes in
the accounts do not materially and adversely affect the Investor
Certificateholders.
(e) Administration of the Series Concentration Accounts, the
--------------------------------------------------------
Stamp Duty Reserve Accounts and the General Reserve Accounts by the Trustee. At
---------------------------------------------------------------------------
the written direction of the Master Servicer, funds on deposit in the Series
Concentration Accounts, the Stamp Duty Reserve Accounts and the General Reserve
Accounts available for investment, shall be invested by the Trustee in Eligible
Investments selected by the Master Servicer. All such Eligible Investments shall
be held by the Trustee as trustee for the benefit of the Investor
Certificateholders. Amounts on deposit in each Series Non-Principal
Concentration Subaccount, the Stamp Duty Reserve Accounts and the General
Reserve Accounts shall, if applicable, be invested in Eligible Investments that
will mature, or that are payable or redeemable upon demand of the holder thereof
so that such
40
funds will be available on or before the Business Day immediately preceding the
next Distribution Date. None of such Eligible Investments shall be disposed of
prior to the maturity date with respect thereto unless such disposition is
reasonably determined by the Master Servicer to be necessary to prevent a loss.
All interest and investment earnings (net of losses and investment expenses) on
funds deposited in any Series Non-Principal Concentration Subaccount shall be
deposited in such subaccount. Amounts on deposit in any Series Principal
Concentration Subaccount and any other accounts or subaccounts as specified in
the related Supplement shall be invested in Eligible Investments that mature, or
that are payable or redeemable upon demand of the holder thereof, so that such
funds will be available not later than the date which is specified in any
Supplement. The Trustee, or its nominee or custodian, shall maintain possession
of the negotiable instruments or securities, if any, evidencing any Eligible
Investments from the time of purchase thereof until the time of sale or
maturity. Any earnings (net of losses and investment expenses) (the "Investment
----------
Earnings") on such invested funds in a Series Principal Concentration Subaccount
--------
and any other accounts or subaccounts as specified in the related Supplement
will be deposited by the Trustee in the related Series Non-Principal
Concentration Subaccount. Investment Earnings on funds held in any subaccount of
the General Reserve Accounts shall be deposited by the Trustee in such
subaccount.
(f) Daily Collections.
-----------------
(i) On the Business Day Received, promptly
following the receipt of Collections in the form of
available funds in any Collection Account, the Company
shall have authorized a transfer of all Collections on
deposit in (A) any Collection Account with respect to the
U.S. Originators directly to the applicable Company
Concentration Account, such transfer to be completed by
12.30 p.m. London time on the next succeeding Business Day
following the day on which such Collections are received
in the Collection Account, each such individual transfer
amount to be reported by the Master Servicer to the
Trustee by 10:00 a.m. London time; and (B) any Collection
Account with respect to the European Originators directly
to the applicable Master Collection Account.
(ii) Promptly following the transfer of Collections
to the applicable Master Collection Account, the Master
Servicer shall transfer, or cause to be transferred, such
transfer to be completed by 12.30 p.m. London time on the
next succeeding Business Day following the day on which
such Collections are received in the Master Collection
Accounts, an amount equal to the amount of Collections to
the applicable Company Concentration Account.
(iii) Promptly following the transfer of Collections
to the applicable Company Concentration Account, but in no
event later than the next succeeding Business Day of the
Collections
41
being received in such Company Concentration Accounts, the
Master Servicer shall calculate (such calculations to be
contained in the Daily Report) and direct the Trustee to
make the transfers, allocations and distributions set
forth in subsections 3.01(d), 3.01(e), 3.01(f), 3.01(g)
------------------- ------- ------- -------
and 3.01(h), as applicable, based on such U.S. Dollar
-------
equivalent of such Aggregate Daily Collections as
demonstrated in the Daily Report.
(iv) If the Aggregate Daily Collections are
deposited into a Company Concentration Account pursuant to
the preceding subsection 3.01(d)(ii) at or before 12.30
----------------------
p.m. London time, and the Daily Report specified in
subsection 3.01(b)(ii) is received by the Trustee at or
----------------------
before 12:30 p.m. London time, the Trustee shall transfer,
within a reasonable time, on such Business Day, from the
Company Concentration Accounts, to the respective Series
Concentration Accounts, an amount equal to the product of
(x) the applicable Invested Percentage for such
Outstanding Series and (y) such Aggregate Daily
Collections (in accordance with the Daily Report which
should be reconciled with balances in the Company
Concentration Accounts).
(v) If (A) the applicable amount referred to in
subsection 3.01(d)(iv) is deposited into a Series
---------------------
Concentration Account at or before 12:30 p.m. London time,
and the Daily Report is received by the Trustee at or
before 12:30 p.m. London time, as set forth in the
preceding subsection 3.01(d)(iv), or (B) the Servicer has
----------------------
deposited Servicer Advances into a Series Concentration
Account, the Trustee shall transfer, within a reasonable
time but in any event no later than 2:30 p.m. London time
funds, on such Business Day, from the Series Concentration
Account for each Outstanding Series to the Series Non-
Principal Concentration Subaccount, the Series Principal
Concentration Subaccount and the Series Accrued Interest
Subaccount of each such Series in accordance with the
Daily Report and the related Supplement for such Series.
(vi) Except as otherwise provided in a Supplement,
if the applicable amount referred to in subsection
----------
3.01(d)(iv) is deposited into the Company Concentration
-----------
Accounts at or before 12:30 p.m. London time, and the
Daily Report is received by the Trustee at or before 12:30
p.m. London time, as set forth in subsection 3.01(d)(iv),
----------------------
the Trustee shall, in accordance with the Daily Report,
transfer, within a reasonable time, but in any event no
later than 2:30 p.m. London time, on such Business Day, to
the relevant Company Receipts Account the remaining funds,
if any, on deposit in the Company Concentration Accounts
on such day
42
after giving effect to the distributions to be
made pursuant to the Supplement for any Outstanding
Series.
(vii) If the Collections received in respect of a
Receivable that is not set forth in a Daily Report can be
identified by the Master Servicer within five (5) Local
Business Days of receipt, the Master Servicer shall send
written notice to the Trustee identifying such Receivable
and setting forth the amount of Collections attributable
to such Receivable. If the Trustee shall have received
such written notice within five (5) Local Business Days of
the Local Business Day on which such Collections has been
deposited into a Collection Account, such Collections
shall be transferred to the relevant Company Receipts
Account by the Trustee. If the Collections received with
respect to an Excluded Receivable can be identified by the
Master Servicer immediately upon receipt of such
Collections in any Collection Account, such Collections
may be transferred to the relevant Company Receipts
Account by the Trustee in accordance with the Daily
Report. If the Collections with respect to such Excluded
Receivable cannot be immediately identified by the Master
Servicer upon receipt, such Collections shall be allocated
as set forth in subsections 3.01(d), 3.01(e), 3.01(f),
------------------- ------- -------
3.01(g) and 3.01(h), as applicable.
------- -------
(g) Certain Allocations Following an Amortization
---------------------------------------------
Period.
------
(i) If, on any Settlement Report Date, an
Amortization Period has occurred and is continuing with
respect to any Outstanding Series and at such Settlement
Report Date, a Revolving Period is still in effect with
respect to any other Outstanding Series (a "Special
-------
Allocation Settlement Report Date"), then the Master
---------------------------------
Servicer shall make the following calculations:
(A) the amount (the "Allocable Charged-Off
---------------------
Amount") equal to the excess, if any, of (I) the
------
aggregate Principal Amount of Charged-Off
Receivables for the related Settlement Period over
(II) the aggregate Principal Amount of Recoveries
received during the related Settlement Period; and
(B) the amount (the "Allocable Recoveries
--------------------
Amount") equal to the excess, if any, of (I) the
------
aggregate Principal Amount of Recoveries received
during the related Settlement Period over (II) the
aggregate Principal Amount of Charged-Off
Receivables for the related Settlement Period.
43
(ii) If, on any Special Allocation
Settlement Report Date, either of the Allocable
Charged-off Amount or the Allocable Recoveries
Amount is greater than zero for the related
Settlement Period, the Trustee shall (in accordance
with written directions received pursuant to
subsection (b)(ii) above) make (A) a pro rata
----------------- --- ----
allocation to each Outstanding Series (based on the
Invested Percentage for such Series) of a portion
(as determined in clause (iii) below) of each such
positive amount and (B) a pro rata allocation to the
--- ----
Exchangeable Company Interest of the remaining
portion of each such positive amount.
(iii) With respect to each portion of the
Allocable Charged-off Amount and the Allocable
Recoveries Amount which is allocated to an
Outstanding Series pursuant to subsection
----------
3.01(e)(ii), the Trustee shall (in accordance with
-----------
the written direction of the Master Servicer) apply
each such amount to such Series in accordance with
the related Supplement for such Series.
(h) Allocations for the Exchangeable Company
----------------------------------------
Interest. On each Business Day and, after the occurrence and continuation of a
--------
Potential Early Amortization Event or an Early Amortization Event in each case
set forth in Section 7.1 of the Agreement, and until the Trust Termination Date,
-----------
on each Distribution Date, after making all transfers and allocations required
pursuant to subsection 3.01(d), the Trustee shall (in accordance with the
------------------
written direction of the Master Servicer (which may be given in the form of the
Daily Report) upon which the Trustee may conclusively rely) transfer, using its
best efforts to make such transfer no later than 2:30 p.m. London time, on such
Business Day, the amounts on deposit in the Company Receipts Accounts to the
holder of the Exchangeable Company Interest or to such accounts or such Persons
as the holder of the Exchangeable Company Interest may direct in writing (which
direction may consist of standing instructions provided by the holder of the
Exchangeable Company Interest that shall remain in effect until changed by such
holder of the Exchangeable Company Interest in writing); provided, however, that
-------- -------
a transfer for purposes of this subsection 3.01(f) shall be deemed to have
------------------
occurred at such time as the Trustee instructs the bank at which the Company
Concentration Accounts are held to debit the Company Concentration Accounts in
the amount of the outgoing amount; provided, further, that a failure of the
-------- -------
Trustee to transfer funds by 2:30 p.m. London time, shall not be a breach of
this subsection 3.01(f) if (i) the same bank wire transfer program is not used
------------------
by the Company and the Trustee to make such transfers or (ii) a Trustee/Master
Servicer Force Majeure Delay occurs, and in either such event the Trustee shall
use its best efforts to transfer funds within a reasonable time.
(i) Setoff. In addition to the provisions of
------
Section 8.05, (i) if the Company shall fail to make a payment as provided in
------------
this Agreement or any Supplement, the Master Servicer or the Trustee may set off
and apply any amounts otherwise payable to the Company under any Transaction
Document. The Company hereby waives demand, notice or declaration of such setoff
and application; and (ii) in the event the Master Servicer shall fail to make a
payment as provided in any Transaction
44
Document, the Trustee may set off and apply any amounts otherwise payable to the
Master Servicer in its capacity as Master Servicer under the Transaction
Documents on account of such obligation. The Master Servicer hereby waives
demand, notice or declaration of such setoff and application.
(j) Allocation and Application of Funds. The Master
-----------------------------------
Servicer shall direct the Trustee in writing (which may be given in the form of
the Daily Reports and the Monthly Settlement Reports) to apply all amounts
computed by reference to Aggregate Daily Collections with respect to the
Receivables as described in this Article III and in the Supplement with respect
-----------
to each Outstanding Series. The Master Servicer shall direct the Trustee in
writing to pay such collections and other amounts to the holder of the
Exchangeable Company Interest to the extent such amounts are allocated to the
Exchangeable Company Interest under subsection 3.01(f) and as otherwise provided
------------------
in Article III if and to the extent that such amounts represent amounts
-----------
transferred to a Company Receipts Account pursuant to subsection 3.01(d)(vi) or
----------------------
(as the case maybe) subsection 3.01(d)(vii) such amounts shall be paid to the
-----------------------
holder of the Exchangeable Company Interests by way of consideration for the
grant of the Participation pursuant to Section 2.01. Unless otherwise provided
------------
in one or more Supplements, if the Trustee receives any Daily Report at or
before 12:30 p.m. London time, on any Business Day, the Trustee shall make any
applications of funds required thereby on the same Business Day, but in any
event no later than 2:30 p.m. London time and otherwise on the next succeeding
Business Day.
THE REMAINDER OF ARTICLE III SHALL BE SPECIFIED IN THE
SUPPLEMENT WITH RESPECT TO EACH SERIES. SUCH REMAINDER SHALL BE
APPLICABLE ONLY TO THE SERIES RELATING TO THE SUPPLEMENT IN
WHICH SUCH REMAINDER APPEARS.
ARTICLE IV
ARTICLE IV IS RESERVED
----------------------
AND MAY BE SPECIFIED IN ANY SUPPLEMENT
--------------------------------------
WITH RESPECT TO THE SERIES RELATING THERETO
-------------------------------------------
ARTICLE V
THE INVESTOR CERTIFICATES AND
-----------------------------
EXCHANGEABLE COMPANY INTEREST
-----------------------------
SECTION 5.01. The Investor Certificates. The Investor Certificates
-------------------------
of each Series and any Class thereof shall be in fully registered form and shall
be substantially in the form of the exhibits with respect thereto attached to
the applicable Supplement. The Investor Certificates shall, upon issue, be
executed by the Trustee (on behalf of the Trust and without the Trustee
incurring any personal liability in respect of the Investor Certificates) and
the Trustee shall authenticate and redeliver the Investor Certificates as
provided in Section 5.02. Except as otherwise set forth as to any Series or
------------
Class in the related Supplement, the Investor Certificates shall be issued by
the Trust in
45
minimum denominations of $1,000,000 and in integral multiples of $100,000 in
excess thereof. Unless otherwise specified in any Supplement for any Series, the
Investor Certificates shall be issued upon initial issuance as a single global
certificate in an original principal amount equal to the Initial Invested Amount
with respect to such Series. Each Investor Certificate shall be executed by
manual or facsimile signature by the Trustee or a Responsible Officer of the
Trustee on behalf of the Trustee. Investor Certificates bearing the manual or
facsimile signature of the individual who was, at the time when such signature
was affixed, authorized to sign on behalf of the Trustee shall not be rendered
invalid, notwithstanding that such individual has ceased to be so authorized
prior to or on the date of the authentication and delivery of such Investor
Certificates or does not hold such office at the date of such Investor
Certificates. No Investor Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, unless there appears on such
Investor Certificate a certificate of authentication substantially in the form
provided for herein executed by or on behalf of the Trustee by the manual
signature of a duly authorized signatory, and such certificate of authentication
upon any Investor Certificate shall be conclusive evidence, and the only
evidence, that such Investor Certificate has been duly authenticated and
delivered hereunder. All Investor Certificates shall be dated the date of their
authentication but failure to do so shall not render them invalid.
SECTION 5.02. Authentication of Certificates.
------------------------------
(a) Authentication and Delivery of Certificates. The Trustee shall
-------------------------------------------
authenticate and deliver the initial Series of Investor Certificates that are
issued upon the written order of the Master Servicer in a form reasonably
satisfactory to the Trustee, to the holders of the initial Series of Investor
Certificates, against payment for the first Series issued by the Trustee of the
Initial Invested Amount to the Company. The Investor Certificates shall be duly
authenticated by or on behalf of the Trustee in authorized denominations equal
to (in the aggregate) such Initial Invested Amount. Upon a Company Exchange as
provided in Section 5.10 and the satisfaction of certain other conditions
------------
specified therein, the Trustee shall authenticate and deliver the Investor
Certificates of additional Series (with the designation provided in the
applicable Supplement) (or, if provided in any Supplement, the additional
Investor Certificates of an existing Series), upon the written order of the
Company, to the Persons designated in such Supplement. Upon the written order
of the Master Servicer, the Investor Certificates of any Series shall be duly
authenticated by or on behalf of the Trustee, in authorized denominations equal
to (in the aggregate) the Initial Invested Amount of such Series of Investor
Certificates.
(b) Company Certificates. Upon written request of the Master
--------------------
Servicer, the Trustee shall authenticate and deliver to the Company one or more
certificates representing the Exchangeable Company Interest in a form reasonably
satisfactory to the Trustee. Such certificates shall be duly authenticated by
or on behalf of the Trustee in denominations as requested by the Company. The
Company shall pay all costs associated with such issuance of certificates.
46
SECTION 5.03. Registration of Transfer and Exchange of Investor
-------------------------------------------------
Certificates.
------------
(a) The Trustee shall cause to be kept at the office
or agency to be maintained by a transfer agent and registrar (which may be the
Trustee) (the "Transfer Agent and Registrar") in accordance with the provisions
----------------------------
of Section 8.16 a register (the "Certificate Register") in which, subject to
------------ --------------------
such reasonable regulations as the Trustee may prescribe, the Transfer Agent and
Registrar shall provide for the registration of the Investor Certificates and of
transfers and exchanges of the Investor Certificates as herein provided. The
Company hereby appoints Chase Manhattan Bank (Ireland) plc as Transfer Agent and
Registrar for the purpose of registering the Investor Certificates and transfers
and exchanges of the Investor Certificates as herein provided. Chase Manhattan
Bank (Ireland) plc shall be permitted to resign as Transfer Agent and Registrar
upon 30 days' prior written notice to the Company the Trustee and the Master
Servicer; provided, however, that such resignation shall not be effective and
-------- -------
Chase Manhattan Bank (Ireland) plc shall continue to perform its duties as
Transfer Agent and Registrar until the Trustee has appointed a successor
Transfer Agent and Registrar reasonably acceptable to the Company and such
successor Transfer Agent and Registrar has accepted such appointment. The
provisions of Sections 8.01, 8.02, 8.03, 8.05 and 10.19 shall apply to Chase
------------- ---- ---- ---- -----
Manhattan Bank (Ireland) plc (or the Trustee to the extent it is so acting) also
in its role as Transfer Agent or Registrar, as the case may be, for so long as
Chase Manhattan Bank (Ireland) plc (or the Trustee to the extent it is so
acting) shall act as Transfer Agent or Registrar, as the case may be.
Each of Huntsman International and the Company hereby jointly and
severally agrees to provide the Trustee from time to time sufficient funds, on a
timely basis and in accordance with and subject to Section 8.05, for the payment
------------
of any reasonable compensation payable to the Transfer Agent and Registrar for
its services under this Section 5.03 and under Section 5.10. The Trustee hereby
------------ ------------
agrees that, upon the receipt of such funds from the Company, it shall pay the
Transfer Agent and Registrar such amounts.
Upon surrender for registration of transfer of any Investor
Certificate at any office or agency of the Transfer Agent and Registrar
maintained for such purpose, the Company shall execute (on behalf of the Trust),
and the Trustee shall, upon the written order of the Company, authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Investor Certificates in authorized denominations of the same Series (and
Class) representing like aggregate Fractional Undivided Interests and which bear
numbers that are not contemporaneously outstanding.
At the option of an Investor Certificateholder, Investor Certificates
may be exchanged for other Investor Certificates of the same Series (and Class)
in authorized denominations of like aggregate Fractional Undivided Interests,
bearing numbers that are not contemporaneously outstanding, upon surrender of
the Investor Certificates to be exchanged at any such office or agency of the
Transfer Agent and Registrar maintained for such purpose.
47
Whenever any Investor Certificates of any Series are so surrendered
for exchange, the Company shall execute (on behalf of the Trust), and the
Trustee shall, upon the written order of the Company, authenticate and (unless
the Transfer Agent and Registrar is different from the Trustee, in which case
the Transfer Agent and Registrar shall) deliver, the Investor Certificates of
such Series which the Investor Certificateholder making the exchange is entitled
to receive. Every Investor Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer, with sufficient instructions, duly executed by the
Investor Certificateholder thereof or his attorney-in-fact duly authorized in
writing delivered to the Trustee (unless the Transfer Agent and Registrar is
different from the Trustee, in which case to the Transfer Agent and Registrar)
and complying with any requirements set forth in the applicable Supplement.
No service charge shall be made for any registration of transfer or
exchange of Investor Certificates, but the Transfer Agent and Registrar may
require any Investor Certificateholder that is transferring or exchanging one or
more Investor Certificates to pay a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Investor Certificates.
All Investor Certificates surrendered for registration of transfer and
exchange shall be canceled and disposed of in a customary manner satisfactory to
the Trustee.
The Company shall and without incurring personal liability with
respect to the Investor Certificates, execute and deliver Investor Certificates
to the Trustee or the Transfer Agent and Registrar in such amounts and at such
times as are necessary to enable the Trustee and the Transfer Agent and
Registrar to fulfill their respective responsibilities under this Agreement and
the Investor Certificates.
(b) The Transfer Agent and Registrar will maintain at its
expense in Ireland and, subject to subsection 5.03(a), if specified in the
------------------
related Supplement for any Series, any other city outside the United Kingdom
designated in such Supplement, an office or offices or agency or agencies where
Investor Certificates may be surrendered for registration or transfer or
exchange.
(c) Unless otherwise stated in any related Supplement,
registration of transfer of Investor Certificates containing a legend relating
to restrictions on transfer of such Investor Certificates (which legend shall be
set forth in the Supplement relating to such Investor Certificates) shall be
effected only if the conditions set forth in the related Supplement are complied
with.
Investor Certificates issued upon registration or transfer of, or in
exchange for, Investor Certificates bearing the legend referred to above shall
also bear such legend unless the Company, the Master Servicer, the Trustee and
the Transfer Agent and Registrar receive an Opinion of Counsel satisfactory to
each of them, to the effect that such legend may be removed.
48
SECTION 5.04. Additional Issuance of Certificates.
-----------------------------------
(a) The Company may cause the Trustee to issue one of more
additional Series. To the extent provided in the related Supplement, the
Company may cause the Trustee to increase the Invested Amount of a Class of
Investor Certificates of an Outstanding Series and an increase in any related
Subordinated Company Interests.
(b) A new issuance or an additional issuance, as the case may
be, may only occur upon delivery to the Trustee of, among other things, the
following: (i) an additional Supplement specifying the principal terms of such
Series (except in the case of an additional issuance to the extent provided in
the related Supplement), (ii) the applicable credit enhancement, if any, and
(iii) satisfaction of the Rating Agency Condition.
SECTION 5.05. Mutilated, Destroyed, Lost or Stolen Investor
---------------------------------------------
Certificates. If (a) any mutilated Investor Certificate is surrendered to the
------------
Transfer Agent and Registrar, or the Transfer Agent and Registrar receives
evidence to its satisfaction of the destruction, loss or theft of any Investor
Certificate and (b) there is delivered to the Transfer Agent and Registrar and
the Trustee such security or indemnity as may be required by them to save the
Trust, each of them and the Company harmless, then, in the absence of actual
notice to the Trustee or Transfer Agent and Registrar that such Investor
Certificate has been acquired by a bona fide purchaser, and, upon the written
request of the Company, the Trustee shall authenticate and deliver on behalf of
the Trust, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Investor Certificate, a new Investor Certificate of like tenor and
aggregate Fractional Undivided Interest and bearing a number that is not
contemporaneously outstanding. In connection with the issuance of any new
Investor Certificate under this Section 5.05, the Trustee or the Transfer Agent
------------
and Registrar may require the payment by the Investor Certificateholder of a sum
sufficient to cover any tax or other governmental expenses (including the fees
and expenses of the Trustee and Transfer Agent and Registrar) connected
therewith. Any duplicate Investor Certificate issued pursuant to this Section
-------
5.05 shall constitute complete and indefeasible evidence of ownership in the
----
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Investor Certificate shall be found at any time.
SECTION 5.06. Persons Deemed Owners. At all times prior to due
---------------------
presentation of an Investor Certificate for registration of transfer, the
Company, the Trustee, the Paying Agent, the Transfer Agent and Registrar, any
Funding Agent and any agent of any of them may treat the Person in whose name
any Investor Certificate is registered as the owner of such Investor Certificate
for the purpose of receiving distributions pursuant to Article IV of the related
----------
Supplement and for all other purposes whatsoever, and neither the Trustee, the
Paying Agent, the Transfer Agent and Registrar nor any agent of any of them
shall be affected by any notice to the contrary. Notwithstanding the foregoing
provisions of this Section 5.06, in determining whether the Investor
------------
Certificateholders of the requisite Fractional Undivided Interests have given
any request, demand, authorization, direction, notice, consent or waiver
hereunder, Investor Certificates owned by the Company, or any Affiliate thereof,
shall be disregarded and deemed not to be outstanding, except that, in
determining whether the
49
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Investor Certificates
which a Responsible Officer of the Trustee actually knows to be so owned shall
be so disregarded. Investor Certificates so owned by the Company or any
Affiliate thereof which have been pledged in good faith shall not be disregarded
and may be regarded as outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Investor Certificates and that the pledgee is not the Company or any Affiliate
thereof.
SECTION 5.07. Appointment of Paying Agent. The Paying Agent shall
---------------------------
make distributions to Investor Certificateholders from the Series Concentration
Accounts (and/or any other account or accounts maintained for the benefit of
Investor Certificateholders as specified in the related Supplement for any
Series) pursuant to Articles III and IV. The Trustee may revoke such power and
------------ --
remove the Paying Agent if the Trustee determines in its sole discretion that
the Paying Agent shall have failed to perform its obligations under this
Agreement in any material respect. Unless otherwise specified in the related
Supplement for any Series and with respect to such Series, the Paying Agent
shall initially be Chase Manhattan Bank (Ireland) plc and any co-paying agent
chosen by Chase Manhattan Bank (Ireland) plc Each Paying Agent other than the
Initial Paying Agent shall have a combined capital and surplus of at least
$100,000,000. The Paying Agent shall be permitted to resign upon thirty (30)
days' prior written notice to the Trustee. In the event that the Paying Agent
shall so resign, the Trustee shall appoint a successor to act as Paying Agent
(which shall be a depositary institution or trust company) reasonably acceptable
to the Company which appointment shall be effective on the date on which the
Person so appointed gives the Trustee written notice that it accepts the
appointment. Any resignation or removal of the Paying Agent and appointment of
successor Paying Agent pursuant to this Section 5.07 shall not become effective
------------
until acceptance of appointment by the successor Paying Agent, as provided in
this Section 5.07. The Trustee shall cause such successor Paying Agent or any
------------
additional Paying Agent appointed by the Trustee to execute and deliver to the
Trustee an instrument in which such successor Paying Agent or additional Paying
Agent shall agree with the Trustee that as Paying Agent, such successor Paying
Agent or additional Paying Agent will hold all sums, if any, held by it for
payment to the Holders in trust for the benefit of the Holders entitled thereto
until such sums shall be paid to such Holders. The Paying Agent shall return
all unclaimed funds to the Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Trustee. The
provisions of Sections 8.01, 8.02, 8.03, 8.05 and 10.19 shall apply to Chase
------------- ---- ---- ---- -----
Manhattan International Limited (or the Trustee to the extent it is so acting)
also in its role as Paying Agent, for so long as Chase Manhattan International
Limited (or the Trustee to the extent it is so acting) shall act as Paying
Agent. Any reference in this Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
The Company hereby agrees to provide the Trustee from time to time
sufficient funds, on a timely basis and in accordance with and subject to
Section 8.05, for the payment of any reasonable compensation payable to the
------------
Paying Agent for its services under this Section 5.06. The Trustee hereby
------------
agrees that, upon the receipt of such funds from the Company it shall pay the
Paying Agent such amounts.
50
SECTION 5.08. Access to List of Investor Certificateholders' Names
----------------------------------------------------
and Addresses. The Trustee will furnish or cause to be furnished by the
-------------
Transfer Agent and Registrar to the Company, the Master Servicer or the Paying
Agent, within ten (10) Business Days after receipt by the Trustee of a request
therefor from the Company, the Master Servicer or the Paying Agent,
respectively, in writing, a list of the names and addresses of the Investor
Certificateholders as then recorded by or on behalf of the Trustee. The costs
and expenses incurred in connection with the provision of such list shall
constitute Program Costs under the Supplement for the applicable Series. If
three or more Investor Certificateholders of record or any Investor
Certificateholder of any Series or a group of Investor Certificateholders of
record representing Fractional Undivided Interests aggregating not less than 10%
of the Invested Amount of the related Outstanding Series (the "Applicants")
----------
apply in writing to the Trustee, and such application states that the Applicants
desire to communicate with other Investor Certificateholders of any Series with
respect to their rights under this Agreement or under the Investor Certificates
and is accompanied by a copy of the communication which such Applicants propose
to transmit, then the Trustee, after having been adequately indemnified by such
Applicants for its costs and expenses, shall transmit or shall cause the
Transfer Agent and Registrar to transmit, such communication to the Investor
Certificateholders reasonably promptly after the receipt of such application.
Every Investor Certificateholder, by receiving and holding an Investor
Certificate, agrees with the Trustee that neither the Trustee, the Transfer
Agent and Registrar, nor any of their respective agents, officers, directors or
employees shall be held accountable by reason of the disclosure or mailing of
any such information as to the names and addresses of the Investor
Certificateholders hereunder, regardless of the sources from which such
information was derived.
As soon as practicable following each Record Date, the Trustee shall
provide to the Paying Agent or its designee, a list of Investor
Certificateholders in such form as the Paying Agent may reasonably request.
SECTION 5.09. Authenticating Agent.
--------------------
(a) The Trustee may appoint one or more authenticating agents
with respect to the Investor Certificates which shall be authorized to act on
behalf of the Trustee in authenticating the Investor Certificates in connection
with the issuance, delivery, registration of transfer, exchange or repayment of
the Investor Certificates; provided, that each such authenticating agent shall
satisfy the conditions set forth in Section 8.06. Whenever reference is made in
------------
this Agreement to the authentication of Investor Certificates by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication on behalf of the Trustee by an authenticating agent and a
certificate of authentication executed on behalf of the Trustee by an
authenticating agent.
(b) Any institution succeeding to the corporate trust business
of an authenticating agent shall continue to be an authenticating agent without
the execution or filing of any paper or any further act on the part of the
Trustee or such authenticating agent; provided such institution satisfies the
conditions set forth in Section 8.06.
------------
51
(c) An authenticating agent may at any time resign by giving
written notice of resignation to the Trustee. Upon the receipt by the Trustee
of any such notice of resignation and upon the giving of any such notice of
termination by the Trustee, the Trustee shall immediately give notice of such
resignation or termination to the Company.
(d) Any resignation of an authenticating agent shall not become
effective until acceptance of appointment by the successor authenticating agent
as provided in this Section 5.08. The Trustee may at any time terminate the
------------
agency of an authenticating agent by giving notice of termination to such
authenticating agent. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time an authenticating agent shall cease to be
acceptable to the Trustee or fail to satisfy the conditions set forth in Section
-------
8.06, the Trustee promptly may appoint a successor authenticating agent.
----
(e) Any successor authenticating agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
authenticating agent. No successor authenticating agent (other than an
Affiliate of the Trustee) shall be appointed unless such authenticating agent
(i) is reasonably acceptable to the Trustee and the Company and (ii) satisfies
the conditions set forth in Section 8.06.
------------
(f) The Company hereby agrees to provide the Trustee from time to
time sufficient funds, on a timely basis and in accordance with and subject to
Section 8.05, for the payment of any reasonable compensation payable to each
------------
authenticating agent for its services under this Section 5.08. The Trustee
------------
hereby agrees that, upon the receipt of such funds from the Company, it shall
pay each authenticating agent such amounts.
(g) The provisions of Sections 8.01, 8.02, 8.03, 8.05 and
------------- ---- ---- ----
10.18 shall be applicable to any authenticating agent.
-----
(h) Pursuant to an appointment made under this Section 5.09, the
------------
Investor Certificates may have endorsed thereon, in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
"This is one of the Investor Certificates
described in the Pooling Agreement
dated as of December 21, 2000, among Huntsman Receivables Finance LLC,
Huntsman (Europe) B.V.B.A., as Master Servicer
and
Chase Manhattan Bank (Ireland) plc, as Trustee"
_________________________________________
as Authenticating Agent
for the Trustee
52
By _________________________
Authorized Signatory
SECTION 5.10. Tax Treatment. It is the intent of the Master
-------------
Servicer, the Company, the Investor Certificateholders and the Trustee that,
under applicable U.S. Federal, State and local income and franchise tax laws
(but for no other purpose), the Investor Certificates will qualify as
indebtedness of the Company secured by the Participation Assets and that the
Trust will not be characterized as an association or publicly traded partnership
taxable as a corporation. The Company, the Master Servicer and the Trustee, by
entering into this Agreement, and each Investor Certificateholder, by its
acceptance of its Investor Certificate, agree to treat, except as otherwise
required by law, the Investor Certificates for applicable U.S. Federal, State
and local income and franchise tax purposes (but for no other purpose) as
indebtedness of the Company. The provisions of this Agreement and all related
Transaction Documents shall be construed to further these intentions of the
parties. This Section 5.10 shall survive the termination of this Agreement and
------------
shall be binding on all transferees of any of the foregoing persons.
SECTION 5.11. Exchangeable Company Interest.
-----------------------------
(a) The Company may decrease the amount of its Exchangeable
Company Interest in exchange for (i) an increase in the Invested Amount of a
Class of Investor Certificates of an Outstanding Series and an increase in any
related Subordinated Company Interests in connection with an issuance of
additional Investor Certificates of such Outstanding Series in accordance with
the respective Supplement or (ii) one or more newly issued Series of Investor
Certificates and any related newly issued Subordinated Company Interests (any
such decrease, a "Company Exchange"). A Company Exchange shall not be necessary
----------------
in connection with an increase in the Invested Amount of any Investor
Certificates issued in a Series with an Invested Amount that may increase or
decrease from time to time. Such Investor Certificates are expected to be
designated as "Variable Funding Certificates" or "VFC Certificates". The Master
----------------------------- ----------------
Servicer may perform a Company Exchange by notifying the Trustee, in writing at
least twenty (20) Business Days in advance (an "Exchange Notice") of the date
---------------
upon which the Company Exchange is to occur (an "Exchange Date"). Any Exchange
-------------
Notice given by the Company shall state the designation of any Series to be
issued on the Exchange Date and, with respect to each such Series: (a) its
additional or Initial Invested Amount, as the case may be, if any, which in the
aggregate at any time may not be greater than the current principal amount of
the Company's Exchangeable Company Interest if any, at such time and (b) its
Certificate Rate (or the method for allocating interest payments or other cash
flow to such Series), if any. On the Exchange Date, the Trustee shall only (i)
authenticate and deliver any Investor Certificates evidencing an increase in the
Invested Amount of a Class of Investor Certificates or a newly issued Series and
(ii) permit the issuance of any related Subordinated Company Interests, upon
delivery to the Trustee of the following (together with the delivery by the
Company to the Trustee of any additional agreements, instruments or other
documents as are specified in the related Supplement): (a) a Supplement executed
by the Master Servicer and specifying the Principal Terms of such Series
(provided that no such Supplement shall be required for any increase in the
Invested Amount of a Class of Investor Certificates, and any related increase in
any
53
related Subordinated Company Interests, unless it is so required by the related
Supplement), (b) a Tax Opinion addressed to the Trustee and the Trust, (c) a
General Opinion addressed to the Trustee and the Trust, (d) a Responsible
Officer's certificate of the Company certifying that all conditions precedent to
the authentication and delivery of such Investor Certificates have been
satisfied and upon which Responsible Officer's certificate the Trustee may
conclusively rely, (e) evidence that the Rating Agency Condition shall have been
satisfied after giving effect to the Company Exchange, (f) written instructions
of an officer of the Company specifying the amount, Series, Investor
Certificates and other Interests to be issued with respect to the Company
Exchange and (g) the applicable Investor Certificates if necessary. Upon
delivery of the items listed in clauses (a) through (g) above and satisfaction
of any conditions set forth in any Supplement for an Outstanding Series, the
existing Exchangeable Company Interest and the applicable Subordinated Company
Interests, as the case may be, shall be deemed adjusted as of such Exchange
Date, and the new Subordinated Company Interests, if any, shall be deemed duly
created as of such Exchange Date, in each case as provided above. The Trustee
shall cause to be kept at the office or agency to be maintained by the Transfer
Agent and Registrar in accordance with the provisions of Section 8.16 a register
------------
(the "Exchange Register") in which, subject to such reasonable regulations as
-----------------
the Trustee may prescribe, the Transfer Agent and Registrar shall record all
Company Exchanges and the amount of the Exchangeable Company Interest following
any the Company Exchange. There is no limit to the number of Company Exchanges
that the Company may perform under this Agreement. If the Company shall, on any
Exchange Date, retain any Investor Certificates issued on such Exchange Date, it
shall, prior to transferring any such Investor Certificates to another Person,
obtain a Tax Opinion. Additional restrictions relating to a Company Exchange may
be set forth in any Supplement.
(b) Upon any Company Exchange, the Trustee, in accordance with the
written directions of the Master Servicer shall issue to the Company under
Section 5.01, for execution, as agent of the Trustee, and redelivery to the
------------
Trustee for authentication under Section 5.02, (i) one or more Investor
------------
Certificates representing an increase in the Invested Amount of an Outstanding
Series, or (ii) one or more new Series of Investor Certificates. Any such
Investor Certificates shall be substantially in the form specified in the
applicable Supplement and each shall bear, upon its face, the designation for
such Series to which each such Certificate belongs so selected by the Master
Servicer.
(c) In conjunction with a Company Exchange, the parties hereto
shall, except as otherwise provided in subsection 5.11(a) above, execute a
------------------
Supplement to this Agreement, which shall define, with respect to any additional
Investor Certificates or newly issued Series, as the case may be: (i) its name
or designation, (ii) its additional or initial principal amount, as the case may
be, (or method for calculating such amount), (iii) its Certificate Rate (or
formula for the determination thereof), (iv) the interest payment date or dates
and the date or dates from which interest shall accrue, (v) the method for
allocating Collections to Holders, (vi) the names of any accounts or subaccounts
to be used by such Series and the terms governing the operation of any such
accounts or subaccounts, (vii) the issue and terms of a letter of credit or
other form of Enhancement, if any, with respect thereto, (viii) the terms on
which the Certificates of such Series may be repurchased by the Company or may
be remarketed to other
54
investors, (ix) the Series Termination Date thereafter, (x) any deposit account
maintained for the benefit of Holders, (xi) the number of classes of such
Series, and if more than one Class, the rights and priorities of each such
Class, (xii) the rights of the holder of such Exchangeable Company Interest that
have been transferred to the holders of such Series, (xiii) the designation of
any Series Accounts or subaccounts and the terms governing the operation of any
such Series Accounts or subaccounts, (xiv) provisions acceptable to the Trustee
concerning the payment of the Trustee's fees and expenses and (xv) other
relevant terms (all such terms, the "Principal Terms" of such Series). The
---------------
Supplement executed in connection with the Company Exchange shall contain
administrative provisions which are reasonably acceptable to the Trustee.
(d) The Company shall not transfer, assign, exchange or otherwise
dispose of its Exchangeable Company Interest or any Subordinated Company
Interests without (i) the prior satisfaction of the Rating Agency Condition and
(ii) delivery of a Tax Opinion. If the Company shall transfer, assign, exchange
or otherwise dispose of all or any portion of its Exchangeable Company Interest
or any Subordinated Company Interests, in accordance with the preceding
sentence, the Transfer Agent and Registrar shall record the transfer,
assignment, exchange or other disposition of (i) the Exchangeable Company
Interest in the Exchange Register and (ii) any Subordinated Company Interests in
a register maintained by the Transfer Agent and Registrar at its office or
agency (the "Subordinated Interest Register"). Any Holder who wishes to
------------------------------
transfer, assign, exchange or otherwise dispose of all or any portion of the
Exchangeable Company Interest or any Subordinated Company Interests held by it
shall deliver instructions and a written instrument of transfer, with sufficient
instructions, duly executed by such Holder or his attorney-in-fact duly
authorized in writing delivered to the Trustee (unless the Transfer Agent and
Registrar is different from the Trustee, in which case to the Transfer Agent and
Registrar) and complying with any requirements set forth in the applicable
Supplement. No service charge shall be made for any registration of transfer or
exchange of all or any portion of the Exchangeable Company Interest or any
Subordinated Company Interests, but the Transfer Agent and Registrar may require
any Holder that is transferring or exchanging all or any portion of the
Exchangeable Company Interest or any Subordinated company interests to pay a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of all or any portion of the
Exchangeable Company Interest or the Subordinated company interests.
(e) Except as specified in any Supplement for a related Series, all
Investor Certificates of any Series shall be equally and ratably entitled as
provided herein to the benefits hereof without preference, priority or
distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Agreement and
the applicable Supplement.
(f) If the Company reduces its Exchangeable Company Interest
pursuant to Section 2.05 (a) and (b) and Section 2.08(n) hereof, the Company
------------------------ ---------------
shall immediately notify the Trustee of any such reduction and the Trustee shall
make the appropriate notification in its records that such reduction of the
Exchangeable Company Interest has been made.
55
SECTION 5.12. Book-Entry Certificates. If specified in any related
-----------------------
Supplement, the Investor Certificates, or any portion thereof, upon original
issuance, shall be issued in the form of one or more typewritten Investor
Certificates representing the Book-Entry Certificates, to be delivered to the
Depository specified in such Supplement which shall be the Clearing Agency,
specified by, or on behalf of, the Company for such Series. The Investor
Certificates shall initially be registered on the Certificate Register in the
name of the nominee of such Clearing Agency, and no Certificate Book-Entry
Holder will receive a definitive certificate representing such Certificate Book-
Entry Holder's interest in the Investor Certificates, except as provided in
Section 5.14. Unless and until definitive, fully registered Investor
------------
Certificates ("Definitive Certificates") have been issued to Investor
-----------------------
Certificateholders pursuant to Section 5.14 or the related Supplement:
------------
(a) the provisions of this Section 5.12 shall be in full force
------------
and effect;
(b) the Master Servicer (or the Servicer Guarantor on behalf
of the Master Servicer) and the Trustee may deal with each Clearing Agency for
all purposes (including the making of distributions on the Investor
Certificates) as the Investor Certificateholder without respect to whether there
has been any actual authorization of such actions by the Certificate Book-Entry
Holders with respect to such actions;
(c) to the extent that the provisions of this Section 5.12
------------
conflict with any other provisions of this Agreement, the provisions of this
Section 5.12 shall control; and
------------
(d) the rights of Certificate Book-Entry Holders shall be
exercised only through the Clearing Agency and the related Clearing Agency
Participants and shall be limited to those established by law and agreements
between such related Certificate Book-Entry Holders and the Clearing Agency
and/or the Clearing Agency Participants. Pursuant to the Depository Agreement,
the initial Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit distributions of amounts due in
respect of the Investor Certificates to such Clearing Agency Participants.
Notwithstanding the foregoing, no Class or Series of Investor
Certificates may be issued as Book-Entry Certificates (but, instead, shall be
issued as Definitive Certificates) unless at the time of issuance of such Class
or Series, the Company and the Trustee receive a Tax Opinion.
SECTION 5.13. Notices to Clearing Agency. Whenever notice or other
--------------------------
communication to the Investor Certificateholders is required under this
Agreement, unless and until Definitive Certificates shall have been issued to
Certificate Book-Entry Holders pursuant to Section 5.14, the Trustee shall give
------------
all such notices and communications specified herein to be given to the Investor
Certificateholders to the Clearing Agencies.
56
SECTION 5.14. Definitive Certificates. If (a)(i) the Master Servicer
-----------------------
advises the Trustee in writing that any Clearing Agency is no longer willing or
able to properly discharge its responsibilities under the applicable Depository
Agreement, and (ii) the Master Servicer is unable to locate a qualified
successor, (b) the Master Servicer at its option advises the Trustee in writing
that it elects to terminate the book-entry system through such Clearing Agency
or (c) after the occurrence of a Master Servicer Default or an Early
Amortization Event, Certificate Book-Entry Holders representing Fractional
Undivided Interests aggregating more than 50% of the Invested Amount held by
such Certificate Book-Entry Holders of each affected Series then issued and
outstanding advise the Clearing Agency through the Clearing Agency Participants
in writing, and the Clearing Agency shall so notify the Trustee, that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interests of the Certificate Book-Entry Holders, the Trustee shall
notify the Clearing Agency, which shall be responsible to notify the Certificate
Book-Entry Holders, of the occurrence of any such event and of the availability
of Definitive Certificates to Certificate Book-Entry Holders requesting the
same. Upon surrender to the Trustee of the Book-Entry Certificates by the
Clearing Agency, accompanied by registration instructions from the Clearing
Agency for registration, the Trustee shall issue the Definitive Certificates.
Neither the Master Servicer (or the Servicer Guarantor on its behalf) nor the
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
SECTION 5.15. Securities Act Restrictions. Investor Certificates may
---------------------------
be issued pursuant to an exemption from registration under the Securities Act or
may be registered pursuant to an effective registration statement under the
Securities Act. Investor Certificates that have not been registered pursuant to
an effective registration statement under the Securities Act and any interest
therein may not be reoffered, resold, pledged or otherwise transferred, and
shall not be registered for transfer in the Certificate Register except pursuant
to the provisions set forth in the Supplement relating to such Series of
Investor Certificates. Such Investor Certificates shall contain a legend
substantially to the effect set forth in the related Supplement.
ARTICLE VI
OTHER MATTERS RELATING TO THE COMPANY
-------------------------------------
SECTION 6.01. Liability of the Company. Except as set forth below in
------------------------
this Section 6.01, the Company shall be liable for all obligations, covenants,
------------
representations and warranties of the Company arising under or related to this
Agreement or any Supplement. Except as provided in the preceding sentence and
otherwise herein, the Company shall be liable only to the extent of the
obligations specifically undertaken by it in its capacity as Company hereunder
and shall not be liable for any act or omission of the Paying Agent, an
authenticating agent, the Transfer Agent and Registrar or the Trustee.
Notwithstanding any other provision hereof or of any Supplement, the sole remedy
of the Trust, the Trustee (in its individual capacity or as Trustee), the
Holders or any other Person in respect of any obligation, covenant,
representation, warranty or agreement of the Company under or related to this
Agreement or any Supplement shall be
57
against the assets of the Company, subject to the payment priorities contained
herein. Neither the Trust, the Trustee, the Holders nor any other Person shall
have any claim against the Company to the extent that the Company's assets are
insufficient to meet such obligations, 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.
SECTION 6.02. Limitation on Liability of the Company. Subject to
--------------------------------------
Sections 6.01 and 10.19, neither the Company nor any of their respective
------------- -----
directors or officers or employees or agents shall be under any liability to the
Trust, the Trustee, the Holders or any other Person for any action taken or for
refraining from the taking of any action pursuant to this Agreement whether or
not such action or inaction arises from express or implied duties under any
Transaction Document; provided, however, that this provision shall not protect
-------- --------
the Company against any liability which would otherwise be imposed by reason of
willful misconduct, bad faith or gross negligence in the performance of any
duties or by reason of reckless disregard of any obligations and duties
hereunder.
SECTION 6.03. Merger or Consolidation of, or Assumption of the
------------------------------------------------
Obligations of, Huntsman International or Certain of Its Affiliates.
-------------------------------------------------------------------
(a) Neither Huntsman International nor any of its Affiliates which is
a party to any of the Transaction Documents shall consolidate with or merge into
any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person or engage in any corporate
restructuring or reorganization unless:
(i) the business entity formed by such consolidation or into
which Huntsman International or any of its Affiliates which is a party
to any of the Transaction Documents is merged or the Person which
acquires by conveyance or transfer the properties and assets of
Huntsman International or any of its Affiliates which is a party to
any of the Transaction Documents substantially as an entirety if
Huntsman International or any of its respective Affiliates is not the
surviving entity shall expressly assume, by an agreement supplemental
hereto, executed and delivered to the Trustee, in form and substance
reasonably satisfactory to the Trustee, the performance of every
covenant and obligation of Huntsman International and any of its
respective Affiliates which is a party to any of the Transaction
Documents, as applicable, hereunder;
(ii) Huntsman International and such Affiliates, as applicable,
have delivered to the Trustee an Officer's Certificate and an Opinion
of Counsel each stating that such consolidation, merger,
restructuring, reorganization, conveyance or transfer or engage in any
corporate restructuring or reorganization and such supplemental
agreement comply with this Section 6.03, that such
------------
58
supplemental agreement is a valid and binding obligation of such
surviving entity enforceable against such surviving entity in
accordance with its terms, except as such enforceability may be
limited by Applicable Insolvency Laws and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity), and that all conditions
precedent herein provided for relating to such transaction have been
complied with;
(iii) if any Series is outstanding, the Rating Agency Condition
shall have been satisfied with respect to such consolidation, merger,
reorganization, conveyance or transfer and any Funding Agent shall
have consented to such consolidation, merger; restructuring,
reorganization, conveyance or transfer;
(iv) the Master Servicer, the Company and their respective
Affiliates, as applicable, shall have delivered to the Trustee, any
Funding Agent and each Rating Agency of each outstanding Series a Tax
Opinion, dated the date of such consolidation, merger, restructuring,
reorganization, conveyance or transfer, with respect thereto;
(v) in connection with any merger, consolidation or corporate
restructuring or reorganization of the Company, the business entity
into which the Company shall merge or consolidate shall be (x) with
respect to the Company, U.S. Originators and any Approved Originator,
a business entity that is not subject to Title 11 of the United States
Code or (y) a special purpose corporation, the powers and activities
of which shall be limited to the performance of the obligations of the
Company under this Agreement, any Supplement and the Origination
Agreements; and
(vi) if such entity is not the surviving entity, the surviving
entity shall file new UCC-1 financing statements and all other
documents which may be required with respect to the participation and
security interest of the Trust in relation to the U.S. Receivables.
(b) The obligations of the Company or its Affiliates, as
applicable, hereunder shall not be assigned nor shall any Person succeed to the
obligations of the Company or its Affiliates, as applicable, hereunder except in
each case in accordance with (i) the provisions of the foregoing paragraphs or
(ii) conveyances, mergers, consolidations, assumptions, sales or transfers to
other entities (1) for which Huntsman International or its Affiliates, as
applicable, delivers an Officer's Certificate to the Trustee indicating the
Huntsman International or its Affiliates, as applicable, reasonably believes
that such action will not adversely affect in any material respect the interests
of any Investor Certificateholder or Holder of a Participation therein, (2)
which meet the requirements of clause (ii) of the preceding paragraph and (3)
for which such
59
purchaser, transferee, pledgee or entity shall expressly assume, in an agreement
supplemental hereto, executed and delivered to the Trustee in writing in form
satisfactory to the Trustee, the performance of every covenant and obligation of
the Transferor thereby conveyed.
ARTICLE VII
EARLY AMORTIZATION EVENTS
-------------------------
SECTION 7.01. Early Amortization Events. Unless modified with
-------------------------
respect to any Series of Investor Certificates by any related Supplement, if any
one of the following events (each, an "Early Amortization Event") shall occur:
------------------------
(a) an Insolvency Event shall have occurred with respect to the
Trust, the Company, any Originator or Huntsman International;
(b) the Trust or the Company shall become an "investment
company" or "controlled" by an "investment company" within the meaning of the
1940 Act;
(c) the Trust shall receive a written notice from the U.S.
Internal Revenue Service taking the position that the Trust should be
characterized for United States federal income tax purposes as a "publicly
traded partnership" or as an association taxable as a corporation and counsel to
the Company cannot provide an opinion reasonably acceptable to the Trustee and
each Funding Agent that such claim is without merit; or
(d) no Successor Master Servicer shall have been appointed and
accepted such appointment pursuant to the Servicing Agreement following a Master
Servicer Default; or
(e) a Program Termination Event shall have occurred and be
continuing under the Contribution Agreement or any Origination Agreement;
then, an "Early Amortization Period" with respect to all Outstanding Series
-------------------------
shall commence without any notice or other action on the part of the Trustee or
any Investor Certificateholder immediately upon the occurrence of such event.
The Master Servicer shall notify each Rating Agency, each Funding Agent and the
Trustee in writing of the occurrence of such Early Amortization Period,
specifying the date of the occurrence of such event. Upon the commencement
against the Trust, the Company, any Originator or Huntsman International of a
case, proceeding or other action described in clause (ii) of the definition of
"Insolvency Event", the Company shall cease to accept contributions of
-----------------
Receivables from Huntsman International and cease to grant a Participation or
security interest in Receivables to the Trust, until such time, if any, as such
case, proceeding or other action is vacated, discharged, or stayed or bonded
pending appeal. If an Insolvency Event with respect to the Trust or the Company
occurs, the Company shall immediately cease to grant a Participation or security
interest in
60
Receivables to the Trust (or, if the Company has previously suspended the grant
of a Participation or security interest in Receivables to the Trust to comply
with the preceding sentence, such suspension shall become a permanent cessation
of the grant of a Participation or security interest in Receivables to the
Trust) and the entity with respect to which such Insolvency Event has occurred,
shall promptly give written notice to the Trustee of such occurrence.
Notwithstanding any cessation of the grant of a Participation or security
interest in to or granting of a security interest in favor of the Trust of
additional Receivables, Receivables participated to or in which a security
interest was granted in favor of the Trust prior to the occurrence of such
Insolvency Event and Collections in respect of such Receivables and interest,
whenever created, accrued in respect of such Receivables, shall continue to be a
part of the Trust.
Additional Early Amortization Events and the consequences thereof may
be set forth in each Supplement with respect to the Series relating thereto.
SECTION 7.02. Additional Rights upon the Occurrence of Certain
------------------------------------------------
Events.
------
(a) If after the occurrence of an Insolvency Event with respect
to the Trust, the Company, any Originator or the Servicer Guarantor, the
Aggregate Invested Amount and all accrued and unpaid amounts due in respect
thereon have not been paid to the Investor Certificateholders, the Company as
beneficial owner of the Receivables acknowledges that the Trustee may in
pursuance of the security interest granted hereunder and in accordance with the
written direction of the Liquidation Servicer shall (i) publish a notice in the
Wall Street Journal, International Wall Street Journal and the Financial Times
(each, an "Authorized Newspaper") that an Insolvency Event has occurred and that
--------------------
the Trustee intends, pursuant to the enforcement of its security interest, to
instruct the Liquidation Servicer to sell, dispose of or otherwise liquidate the
Receivables in a commercially reasonable manner and (ii) send written notice to
the Investor Certificateholders and request instructions from such holders,
which notice shall request each Certificateholder to advise the Trustee in
writing that it elects one of the following options: (A) the Certificateholder
wishes the Liquidation Servicer not to so sell, dispose of or otherwise
liquidate the Receivables; (B) the Certificateholder wishes the Liquidation
Servicer to sell, dispose of or otherwise liquidate the Receivables; or (C) the
Certificateholder refuses to advise the Trustee as to the specific action the
Liquidation Servicer should take. If after 60 days from the day notice pursuant
to clause (i) above is first published (the "Publication Date"), the Trustee
----------------
shall not have received written instructions selecting option (A) above from (x)
Investor Certificateholders representing more than 50% of the Invested Amount of
each Series (or, in the case of a Series having more than one Class of Investor
Certificates, Investor Certificateholders representing more than 50% of the
Invested Amount of each Class of such Series) and (y) if there are any Holders
of the Exchangeable Company Interest other than the Company, the Holders of the
Exchangeable Company Interest representing more than 50% of the Company Interest
not held by the Company, the Trustee shall proceed to direct the Liquidation
Servicer to so sell, dispose of, or otherwise liquidate the Receivables in a
commercially reasonable manner and on commercially reasonable terms, which shall
include the solicitation of competitive bids and the Trustee shall cause the
Liquidation Servicer to consummate the sale, liquidation or disposition of the
61
Receivables as provided above with the highest bidder for the Receivables. The
Company hereby expressly waives any rights of redemption or rights to receive
notice of any such sale except as may be required by law. All reasonable costs
and expenses incurred by the Liquidation Servicer in such sale shall be
reimbursable to the Liquidation Servicer as provided in Section 8.05. After the
------------
appointment of the Liquidation Servicer as Successor Master Servicer pursuant to
the Servicing Agreement, the Liquidation Servicer shall proceed to sell, dispose
of, or otherwise liquidate the Receivables in a commercially reasonable manner
and on commercially reasonable terms, which shall include the solicitation of
competitive bids and the Liquidation Servicer shall proceed to consummate the
sale, liquidation or disposition of the Receivables as provided above with the
highest bidder for the Receivables. The provisions of Sections 7.01 and 7.02
------------- ----
shall be cumulative. All reasonable costs and expenses incurred by the
Liquidation Servicer in such sale shall be reimbursable to the Liquidation
Servicer as provided in Section 8.05.
------------
(b) The proceeds from the sale, disposition or liquidation of
the Receivables pursuant to subsection 7.02(a) above shall be treated as
------------------
Collections on the Receivables and such proceeds shall be released to the
Liquidation Servicer in an amount equal to the amount of any expenses incurred
by the Liquidation Servicer acting in its capacity as Liquidation Servicer under
this Section 7.02 that have not otherwise been reimbursed and the remainder, if
------------
any, will be distributed to Investor Certificateholders of each Series after
immediately being deposited in the related Company Concentration Account, in
accordance with the provisions of subsection 3.01(d) and the related Supplement
------------------
for such Series. After giving effect to all such distributions, the remainder,
if any, shall be allocated to the Exchangeable Company Interest and such amount
shall be released to the Holder of the Exchangeable Company Interest.
ARTICLE VIII
THE TRUSTEE
-----------
SECTION 8.01. Duties of Trustee.
-----------------
(a) The Trustee, prior to the occurrence of a Master Servicer
Default or Early Amortization Event of which a Responsible Officer of the
Trustee has actual knowledge and after the curing of the Master Servicer
Defaults and Early Amortization Events which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in the
Pooling and Servicing Agreements or any Supplement and no implied covenants or
obligations shall be read into such Pooling and Servicing Agreements against the
Trustee. If a Master Servicer Default or Early Amortization Event of which a
Responsible Officer of the Trustee has actual knowledge occurred (which has not
been cured or waived), the Trustee shall exercise the rights and powers vested
in it by any Pooling and Servicing Agreement or any Supplement and shall use the
same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) The Trustee may conclusively rely as to the truth of the
statements and the correctness of the opinions expressed therein upon
resolutions,
62
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee; provided, that (i) in the case of any of
the above which are specifically required to be furnished to the Trustee
pursuant to any provision of the Pooling and Servicing Agreements, the Trustee
shall, subject to Section 8.02, examine them to determine whether they appear on
------------
their face to conform to the requirements of this Agreement and (ii) in the case
of any of the above as to which the Trustee is required to perform procedures
pursuant to the internal operating procedures memorandum, the Trustee shall
perform said procedures in accordance with the internal operating procedures
memorandum.
(c) Subject to subsection 8.01(a), no provision of this Agreement
------------------
shall be construed to relieve the Trustee from liability for its own grossly
negligent action, its own grossly negligent failure to act or its own willful
misconduct; provided, however, that:
-------- --------
(i) the Trustee shall not be liable for an error of judgment
unless it shall be proved that the Trustee was grossly negligent, or
acted in bad faith, in ascertaining the pertinent facts;
(ii) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith;
(iii) the Trustee shall not be charged with knowledge of any
failure by the Master Servicer to comply with any of its obligations,
unless a Responsible Officer of the Trustee obtains actual knowledge
of such failure or the Trustee receives written notice of such failure
from the Master Servicer, any Funding Agent or any Investor
Certificateholder;
(iv) the Trustee shall not be charged with knowledge of a Master
Servicer Default or Early Amortization Event unless a Responsible
Officer of the Trustee obtains actual knowledge of such event or the
Trustee receives written notice of such default or event from the
Master Servicer or Servicer Guarantor, as the case may be, any Funding
Agent or any Holder of Investor Certificates;
(v) the Trustee shall not be liable for any investment losses
resulting from any investments of funds on deposit in the Company
Concentration Accounts or Series Concentration Accounts (provided that
the Trustee has complied with the instructions of the Master Servicer
in accordance of the terms of this Agreement in conducting such
investments); and
(vi) the Trustee shall have no duty to monitor the performance
of the Master Servicer or the Servicer Guarantor, nor shall it have
any liability in connection with malfeasance or nonfeasance by the
Master Servicer or the Servicer Guarantor; the
63
Trustee shall have no liability in connection with compliance of
the Master Servicer, the Servicer Guarantor or the Company with
statutory or regulatory requirements related to the Receivables;
and the Trustee shall have no duty to perform, except as
otherwise required pursuant to the internal operating procedures
memorandum, any recalculation or verification of any calculation
with respect to data provided to the Trustee by the Master
Servicer.
(d) Except as expressly provided in any Pooling and Servicing
Agreement, the Trustee shall have no power to vary the corpus of the Trust.
(e) Provided that the Master Servicer and the Company shall have
provided to the Trustee and the Liquidation Servicer, promptly upon request, all
books, records and other information reasonably requested by the Trustee and the
Liquidation Servicer and shall have provided the Trustee and the Liquidation
Servicer with all necessary access to the properties, books and records of the
Master Servicer and the Company which the Trustee and the Liquidation Servicer
may reasonably require, then within sixty (60) days following the Effective Date
the Trustee shall notify the Master Servicer, each Rating Agency, each Funding
Agent and each Investor Certificateholder of such events.
SECTION 8.02. Rights of the Trustee. Except as otherwise provided in
---------------------
Section 8.01 and in the internal operating procedures memorandum:
------------
(a) The Trustee may delegate any of the duties, rights and
powers vested in it hereunder to an Eligible Institution; provided, however,
-------- -------
that no such delegation shall be effective unless (i) such third party has a
combined capital and surplus of at least $100,000,000 and short-term ratings of
at least "A-1"/"P-1" by S&P and ▇▇▇▇▇'▇, respectively, and subject to
supervision or examination by federal or state authority and (ii) the Rating
Agency Condition is satisfied.
(b) The Trustee may conclusively rely on and shall be protected
in acting on, or in refraining from acting in accord with, any resolution,
Responsible Officer's certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, appraisal, bond, note or other paper or document believed by it
to be genuine and to have been signed or presented to it pursuant to any Pooling
and Servicing Agreement by the proper party or parties.
(c) The Trustee may consult with counsel, and any Opinion of
Counsel and any advice of such counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such Opinion of Counsel.
(d) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by any Pooling and Servicing Agreement, or to
institute, conduct or defend any litigation hereunder or in relation hereto, at
the request, order or direction of any of the Holders, pursuant to the
provisions of any Pooling and Servicing
64
Agreement, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may be
incurred therein or thereby; provided, however, that nothing contained herein
-------- -------
shall relieve the Trustee of the obligations, upon the occurrence of a Master
Servicer Default and default under the Servicing Guarantee or Early Amortization
Event (which has not been cured), to exercise such of the rights and powers
vested in it by any Pooling and Servicing Agreement, and to use the same degree
of care and skill in their exercise as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs. The right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be answerable for
other than its gross negligence or willful misconduct in the performance of any
such act. For the purposes set forth hereunder, the Trustee's obligation to
agree the matters referred to in Section 2.7(r), (s), (t) and (n) shall be
--------------------------------
treated as an act of discretion.
(e) The Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by any
Pooling and Servicing Agreement; provided that the Trustee shall be liable for
--------
its gross negligence or willful misconduct.
(f) The Trustee shall not be bound to make any investigation
into the facts of matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, direction, order,
approval, bond, note or other paper or document, unless requested in writing so
to do by the Holders of Investor Certificates evidencing Fractional Undivided
Interests aggregating more than 50% of the Invested Amount of any Series which
could be materially and adversely affected if the Trustee does not perform such
acts; provided, however, that such Holders of Investor Certificates shall
-------- -------
indemnify and reimburse the Trustee for any liability or expense resulting from
any such investigation requested by them; provided, further, that the Trustee
-------- -------
shall be entitled to make such further inquiry or investigation into such facts
or matters as it may reasonably see fit, and if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books and records of the Company, personally or by agent or attorney, at the
sole cost and expense of the Company.
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
Affiliates, agents or attorneys or a custodian or nominee, and the Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such Affiliate, agent, attorney, custodian or nominee
appointed with due care by it hereunder.
(h) The Trustee shall not be required to make any initial or
periodic examination of any documents or records related to the Receivables, the
Collection Accounts, the Company Concentration Accounts, the Master Collection
Accounts, the Company Receipts Account, the Stamp Duty Reserve Accounts and the
General Reserve Accounts for the purpose of establishing the presence or absence
of defects, the compliance by the Company with its representations and
warranties or for any other purpose.
65
(i) In the event that the Trustee is also acting as Paying
Agent or Transfer Agent and Registrar hereunder, the rights and protections
afforded to the Trustee pursuant to this Article VIII shall also be afforded to
------------
such Paying Agent or Transfer Agent and Registrar.
SECTION 8.03. Trustee Not Liable for Recitals. The Trustee assumes
-------------------------------
no responsibility for the correctness of the recitals contained herein and in
the Investor Certificates (other than the certificate of authentication on the
Investor Certificates). Except as set forth in Section 8.15, the Trustee makes
------------
no representations as to the validity or sufficiency of any Pooling and
Servicing Agreement, of the Investor Certificates (other than the certificate of
authentication on the Investor Certificates), of the Exchangeable Company
Interest, of any Subordinated company interests, of any Receivable or of any
related document or interest. The Trustee shall not be accountable for the use
or application by the Company of any of the Investor Certificates, any
Subordinated company interests or any Exchangeable Company Interest or of the
proceeds of such Investor Certificates, such Subordinated company interests or
such Exchangeable Company Interest or for the use or application of any funds
paid to the Company in respect of the Receivables or deposited in or withdrawn
from the Collection Accounts, the Company Concentration Accounts or other
accounts hereafter established to effectuate the transactions contemplated
herein and in accordance with the terms of any Pooling and Servicing Agreement.
The Trustee shall not be accountable for the use or application by the
Master Servicer of any of the Investor Certificates or of the proceeds of such
Investor Certificates, or for the use or application of any funds paid to the
Master Servicer in respect of the Receivables or deposited in or withdrawn from
the Collection Accounts or the Company Concentration Accounts by or at the
direction of the Master Servicer. The Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Receivable.
SECTION 8.04. Trustee May Own Investor Certificates. The Trustee in
-------------------------------------
its individual or any other capacity (a) may become the owner or pledgee of
Investor Certificates with the same rights as it would have if it were not the
Trustee and (b) may transact any banking and trust business with the Company,
the Master Servicer or an Originator as it would were it not the Trustee.
SECTION 8.05. Trustee's and the Liquidation Servicer's Fees and
-------------------------------------------------
Expenses. The Trustee shall be entitled to a fee (which shall not be limited by
--------
any provision of law in regard to the compensation of a trustee of an express
trust) for all services rendered by the Trustee in the execution of the trusts
hereby created and in the exercise and performance of any of the powers and
duties hereunder of the Trustee. The Master Servicer covenants and agrees to
pay to the Trustee annually in advance on the Effective Date and on or about
each one year anniversary thereof, a fee agreed upon in writing between the
Trustee and the Master Servicer. The Trustee shall also be entitled to
reimbursement from the Master Servicer or the Company upon its request for all
reasonable expenses (including, without limitation, expenses incurred in
connection with notices, requests for documentation or other communications to
Holders), disbursements, losses, liabilities, damages and advances incurred or
made by the Trustee in accordance
66
with any of the provisions of any Pooling and Servicing Agreement or by reason
of its status as Trustee under any Pooling and Servicing Agreement (including
the reasonable fees and expenses of its agents, any co-trustee and counsel)
except any such expense, disbursement, loss, liability, damage or advance that
is finally judicially determined to have resulted from its gross negligence,
willful misconduct or bad faith; provided, that any obligation of the Company to
--------
make payments under this Section 8.05 shall be Company Subordinated Obligations.
------------
To the extent the fees and expenses of the Trustee are not paid on a current
basis (including pursuant to the first sentence of this Section 8.05), the
------------
Trustee shall be entitled to be paid such items from amounts that would be
distributable to the Company under Article III of this Agreement. The Trustee
-----------
shall be entitled to reimbursement for any reasonable out-of-pocket costs or
expenses incurred in connection with the review, negotiation, preparation,
execution and delivery of any of the Transaction Documents or in connection with
the issuance of any Investor Certificates on the Effective Date. If the
Liquidation Servicer is appointed Successor Master Servicer by the Trustee in
accordance with the Servicing Agreement, the Liquidation Servicer, in its
capacity as Successor Master Servicer, shall also be entitled to be paid the
Servicing Fee as specified in the agreement between the Liquidation Servicer and
the Trustee (the "Liquidation Servicer Agreement") and any other compensation to
which the Master Servicer is expressly entitled under any Pooling and Servicing
Agreement. The Trustee shall not be liable for any fees of the Liquidation
Servicer in its capacity as Successor Master Servicer. The provisions of this
Section 8.05 shall apply to the reasonable expenses, disbursements and
------------
advances made or incurred by the Liquidation Servicer, to the extent not
otherwise paid. The covenants to pay the expenses, disbursements, losses,
liabilities, damages and advances provided for in this Section shall survive the
termination of any Pooling and Servicing Agreement and shall be binding on the
Company, the Master Servicer and any Successor Master Servicer.
SECTION 8.06. Eligibility Recitals. The initial Trustee hereunder on
--------------------
the Effective Date shall be a banking institution in Dublin, Ireland. Any
subsequent Trustee, other than the initial Trustee, shall be a banking
institution, located in Europe and shall have a combined capital and surplus of
at least $100,000,000 (or its foreign equivalent), short term ratings of at
least "A-1"/"P-1" by S&P and ▇▇▇▇▇'▇, respectively and subject to the regulatory
supervision in its jurisdiction. If such institution publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then, for the purpose of this
Section 8.06, the combined capital and surplus of such corporation shall be
------------
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section 8.06, the
------------
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07.
------------
SECTION 8.07. Resignation or Removal of Trustee.
---------------------------------
(a) Subject to paragraph (c) below, the Trustee may at any
time resign and be discharged from the trust hereby created by giving 60
calendar days prior written notice thereof to the Company, the Master Servicer
and the Rating Agencies. Upon receiving such notice of resignation, the Company
shall promptly appoint a
67
successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have
accepted such appointment within thirty (30) days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
------------
written request therefor by the Master Servicer, or if at any time the Trustee
shall be legally unable to act, or shall be adjudged a bankrupt or insolvent, or
if a receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Company may remove the Trustee and promptly appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee.
(c) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this Section 8.07
------------
shall not become effective until acceptance of such appointment as provided in
Section 8.08.
------------
(d) The obligations of the Company described in Section 8.05
------------
and the obligations of the Master Servicer described in Section 8.05 and Section
------------ -------
5.02 of the Servicing Agreement shall survive the removal or resignation of the
----
Trustee as provided in this Agreement.
(e) No Trustee under this Agreement shall be personally liable
for any action or omission of any successor trustee.
SECTION 8.08. Successor Trustee.
-----------------
(a) Any successor trustee appointed as provided in Section 8.07
------------
shall execute, acknowledge and deliver to the Company and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as Trustee
herein. The predecessor Trustee shall deliver to the successor trustee all
documents or copies thereof, at the expense of the Master Servicer, and
statements held by it hereunder; and the Company and the predecessor Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor trustee all such rights, power, duties and obligations. The Master
Servicer shall immediately give notice, but in no event less than ten (10) days
prior to any such resignation or removal, to each Rating Agency upon the
appointment of a successor trustee.
68
(b) No successor trustee shall accept appointment as provided
in this Section 8.08 unless at the time of such acceptance such successor
------------
trustee shall be eligible under the provisions of Section 8.06.
------------
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee (including the Servicer
------------
Guarantor) shall mail notice of such succession hereunder to all Holders at
their addresses as shown in the Certificate Register, the Exchange Register or
the Subordinated Interest Register, as applicable.
SECTION 8.09. Merger or Consolidation of Trustee. Any Person into
----------------------------------
which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be eligible under the
--------
provisions of Section 8.06, without the execution or filing of any paper or any
------------
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding. The Trustee shall promptly give notice (except to the
extent prohibited under any Requirement of Law or Contractual Obligation), but
in no event less than ten (10) days prior to any such merger or consolidation,
to the Company, the Master Servicer and the Rating Agencies upon any such merger
or consolidation of the Trustee. Information as to such merger or consolidation
that is made publicly available by the Trustee in the Authorized Newspapers
shall be deemed to satisfy the notice requirement of this Section 8.09.
------------
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
(a) Notwithstanding any other provisions of any Pooling and
Servicing Agreement, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the Trust may at the time
be located, the Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Persons to act as a co-trustee or co-
trustees, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in such Person or Persons, in such capacity and for the
benefit of the Holders, such title to the Trust, or any part thereof, and,
subject to the other provisions of this Section 8.10, such powers, duties,
------------
obligations, rights and trusts as the Trustee may consider necessary. No co-
trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 8.06 and no notice to Holders
------------
of the appointment of any co-trustee or separate trustee shall be required under
Section 8.08. The Trustee shall promptly notify each Rating Agency of the
------------
appointment of any co-trustee.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred or imposed upon
and exercised or performed by the Trustee and such
69
separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act
separately without the Trustee joining in such act), except to
the extent that under any statute of any jurisdiction in which
any particular act or acts are to be performed (whether as
Trustee hereunder or as successor to the Master Servicer
hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-
trustee, but solely at the direction of the Trustee;
(ii) neither the Trustee nor any separate trustee or co-
trustee shall be personally liable by reason of any act or
omission of any other trustee, separate trustee or co-trustee
hereunder so long as such trustee, separate trustee or co-trustee
is appointed with due care in accordance with the terms of this
Agreement; and
(iii) the Trustee may at any time accept the resignation
of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and co-
trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
------------
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of any Pooling and Servicing Agreement, specifically including every provision
of any Pooling and Servicing Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Every such instrument
shall be filed with the Trustee and a copy thereof given to the Master Servicer
and the Company.
(d) Any separate trustee or co-trustee may at any time
constitute the Trustee, its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect to any Pooling and Servicing Agreement on its behalf and in its name. If
any separate trustee or co-trustee shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Trustee, to the extent permitted by law, without
the appointment of a new or successor trustee.
SECTION 8.11. Tax Returns. In the event the Trust shall be required
-----------
to file U.S. Federal, state, local or foreign income tax returns, the Company
(or the Master Servicer on its behalf) shall prepare and file or shall cause to
be prepared and filed any such tax returns required to be filed by the Trust and
shall remit such tax returns to the Trustee for signature at least five (5)
Business Days before such tax returns are due to be
70
filed (including extensions). The Master Servicer (or the Servicer Guarantor on
its behalf) shall also prepare or shall cause to be prepared all U.S. Federal
tax information in connection with this Agreement required by law to be
distributed to Holders and shall deliver such information to the Trustee at
least five (5) Business Days prior to the date it is required by law to be
distributed to the Holders. The Trustee, upon request, will furnish the Company
or the Master Servicer with all such information known to the Trustee as may be
reasonably determined by the Company or the Master Servicer to be required in
connection with the preparation of all U.S. Federal, state, local or foreign
income tax returns of the Trust, and shall, upon the Company's (or the Master
Servicer's on behalf of the Company) written request, execute such tax returns.
In no event shall the Trustee in its individual capacity be liable for any
liabilities, costs or expenses of the Trust, the Holders, the Master Servicer
(or the Servicer Guarantor on its behalf), arising under any U.S. Federal,
state, local or foreign income tax law or regulation, including, without
limitation, excise taxes or any other tax imposed by a Governmental Authority on
or measured by income (or any interest or penalty with respect thereto or
arising from any failure to comply therewith). The Trustee shall not be required
to determine whether any filing of tax returns is required.
SECTION 8.12. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Investor Certificates. All rights of action and claims under any Pooling and
---------------------
Servicing Agreement or the Investor Certificates may be prosecuted and enforced
by the Trustee without the possession of any of the Investor Certificates or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee. Any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders in respect of which such
judgment has been obtained.
SECTION 8.13. Suits for Enforcement. If a Master Servicer Default or
---------------------
a default under the Servicing Guarantee shall occur and be continuing, the
Trustee may, as provided in Section 6.01 of the Servicing Agreement, proceed to
------------
protect and enforce its rights and the rights of the Holders under this
Agreement or any other Transaction Document by suit, action or proceeding
(including any suit, action or proceeding on behalf of the Holders against any
third party) in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this Agreement or any
other Transaction Document or in aid of the execution of any power granted in
this Agreement or any other Transaction Document or for the enforcement of any
other legal, equitable or other remedy as the Trustee, being advised by counsel,
shall deem most effective to protect and enforce any of the rights of the
Trustee or the Holders. In furtherance of and without limiting the generality
of subsection 8.01(d), the Trustee shall have the right to obtain, before
------------------
initiating any such action, such reasonable indemnity from the Holders as the
Trustee may require against the costs, expenses and liabilities that may be
incurred therein or thereby. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Investor Certificates, the Subordinated company interests or the
Exchangeable Company
71
Interest or the rights of any holder thereof, or authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
SECTION 8.14. Rights of Investor Certificateholders to Direct
-----------------------------------------------
Trustee. Investor Certificateholders evidencing more than 50% of the Invested
Amount of any Series affected by the conduct of any proceeding or the exercise
of any right conferred on the Trustee shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee; provided,
--------
however, that nothing in any Pooling and Servicing Agreement shall impair the
-------
right of the Trustee to take any action deemed proper by the Trustee and which
is not inconsistent with such direction of the Investor Certificateholders;
provided, further, that in furtherance and without limiting the generality of
-------- -------
subsection 8.01(d), the Trustee shall have the right to obtain, before acting in
------------------
accordance with any such direction of the Investor Certificateholders, such
reasonable indemnity from the Investor Certificateholders as the Trustee may
require against the costs, expenses and liabilities that may be incurred in so
acting.
SECTION 8.15. Representations and Warranties of Trustee. The Trustee
-----------------------------------------
represents and warrants that:
(a) the Trustee is a banking institution organized, existing
and in good standing under the laws of Dublin, Ireland and is duly authorized to
exercise trust powers under applicable law;
(b) the Trustee has the power and authority to enter into this
Agreement and any Supplement, and has taken all necessary action to authorize
the execution, delivery and performance by it of this Agreement and any
Supplement; and
(c) this Agreement and each of the Transaction Documents
executed by it have been duly executed and delivered by the Trustee and, in the
case of all such Transaction Documents, are legal, valid and binding obligations
of the Trustee, enforceable in accordance with their respective terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors, rights generally and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
SECTION 8.16. Maintenance of Office or Agency. The Trustee will
-------------------------------
maintain at its expense in Dublin, Ireland, an office or offices or agency or
agencies where notices and demands to or upon the Trustee in respect of the
Investor Certificates or any other Interests and the Pooling and Servicing
Agreements may be served. The Trustee will give prompt written notice to the
Company, the Master Servicer and the Holders of any change in the location of
the Certificate Register, the Exchange Register, the Subordinated Interest
Register or any such office or agency.
SECTION 8.17. Limitation of Liability. The Investor Certificates are
-----------------------
executed by the Trustee, not in its individual capacity but solely as Trustee of
the Trust, in the exercise of the powers and authority conferred and vested in
it by the Trust
72
Agreement. Each of the undertakings and agreements made on the part of the
Trustee in the Investor Certificates is made and intended not as a personal
undertaking or agreement by the Trustee but is made and intended for the purpose
of binding only the Trust.
ARTICLE IX
TERMINATION
-----------
SECTION 9.01. Termination of Trust.
--------------------
(a) The Trust and the respective obligations and
responsibilities of the Company, the Master Servicer and the Trustee created
hereby (other than the obligation of the Trustee to make payments to Holders as
hereafter set forth and any indemnification obligations hereunder) shall
terminate, except with respect to any such obligations or responsibilities
expressly stated to survive such termination, on the earliest of (i) the last
day of the June 2021 Settlement Period, or if such day is not a Business Day,
the immediately preceding Business Day, (ii) at the option of the Company, at
any time when the Aggregate Invested Amount is zero, (iii) following the
occurrence of any of the Early Amortization Events specified in Section 7.01, at
------------
any time when the Aggregate Invested Amount is zero and (iv) upon completion of
distribution of the amounts referred to in subsection 7.02(b) (the "Trust
------------------ -----
Termination Date").
----------------
(b) If on the Distribution Date in the month immediately
preceding the month in which the Trust Termination Date occurs (after giving
effect to all transfers, withdrawals, deposits and drawings to occur on such
date and the payment of principal on any Series of Investor Certificates to be
made on the related Distribution Date pursuant to Article III) the Invested
-----------
Amount of any Series would be greater than zero (as certified in writing by the
Master Servicer), the Company as beneficial owner of the Receivables hereby
authorizes the Trustee, at the written direction of the Master Servicer to make
reasonable efforts to cause the Liquidation Servicer to sell within 30 days of
such Distribution Date all of the Receivables. The proceeds of such sale shall
be treated as Collections on the Receivables and shall be allocated in
accordance with Article III. During such 30-day period, the Master Servicer
-----------
shall continue to collect Collections on the Receivables and allocate
Collections in accordance with the provisions of Article III. The reasonable
-----------
costs and expenses incurred by the Trustee and the Liquidation Servicer in such
sale shall be reimbursable to the Trustee and the Liquidation Servicer as
provided in Section 8.05.
------------
SECTION 9.02. Optional Purchase and Final Termination Date of
-----------------------------------------------
Investor Certificates of Any Series.
-----------------------------------
(a) On any Distribution Date during the Amortization Period
with respect to any Series on which the Invested Amount (or such other amount as
may be set forth in the related Supplement) of such Series is reduced to an
amount equal to or less than ten percent (10%) of the Initial Invested Amount
(or such other amount as may be set forth in the related Supplement) for such
Series as of the day preceding the beginning of such Amortization Period, the
Company shall have the option to repurchase the entire Investor
Certificateholders' Interest of such Series, at a purchase price equal to
73
(i) the outstanding Invested Amount of the Investor Certificates of such Series
plus (ii) amounts due in respect thereof through such Distribution Date (after
giving effect to any payment of principal and monthly interest on such date of
purchase) plus (iii) all other amounts payable to all Investor
Certificateholders of such Series under the related Supplement (such purchase
price, the "Clean-Up Call Repurchase Price"). The amount of the Clean-Up Call
-----------------------------
Repurchase Price will be deposited and credited to the applicable Series
Concentration Account for such Series on such Distribution Date in immediately
available funds and will be passed through in full to the applicable Investor
Certificateholders. Following any such repurchase, such Investor
Certificateholders' Interest in the Receivables shall terminate and such amounts
due therein will be allocated to the Exchangeable Company Interest and such
Investor Certificateholders will have no further rights with respect thereto. In
the event that the Company fails for any reason to deposit the Clean-Up Call
Repurchase Price for such Receivables, the Investor Certificateholders' Interest
in the Receivables will continue and monthly payments will continue to be made
to the Investor Certificateholders.
(b) The amount deposited pursuant to subsection 9.02(a) shall
------------------
be paid to the Investor Certificateholders of the related Series pursuant to
Article III on the Distribution Date following the date of such deposit. All
-----------
Investor Certificates of a Series which are purchased by the Company pursuant to
subsection 9.02(a) shall be delivered by the Company upon such purchase to, and
------------------
be canceled by (in accordance with the written directions of the Company), the
Transfer Agent and Registrar and be disposed of in a manner satisfactory to the
Trustee and the Company.
(c) All amounts due with respect to any Series of Investor
Certificates shall be due and payable no later than the Series Termination Date
with respect to such Series. Unless otherwise provided in a Supplement, in the
event that the Invested Amount of any Series of Investor Certificates is greater
than zero on its Series Termination Date (after giving effect to all transfers,
withdrawals, deposits and drawings to occur on such date and the payment of
amounts due to be made on such Series on such date), the Company as beneficial
owner of the Receivables acknowledges that the Trustee may in pursuance of the
security interest granted hereunder sell or cause to be sold, in accordance with
the directions of the Investor Certificateholders representing more than 50% of
the Invested Amount of such Series (upon which the Trustee may conclusively
rely) Receivables with an aggregate principal amount approximately equal to the
Outstanding Invested Amount of such Series and pay the proceeds to all Investor
Certificateholders of such Series pro rata (except that unless expressly
--------
provided to the contrary in the related Supplement, no payment shall be made to
Investor Certificateholders of any Class of any Series that is by its terms
subordinated to any other Class until such senior Class of Investor Certificates
have been paid in full) in payment of amounts due on such Series of Investor
Certificates, provided, however, in furtherance and without
--------- -------
limiting the generality of subsection 8.01(d), the Trustee shall have the right
------------------
to obtain, before acting in accordance with any such direction of the Investor
Certificateholders, such reasonable indemnity from the Investor
Certificateholders as the Trustee may require against the costs, expenses and
liabilities that may be incurred in so acting. Absent such direction from
Investor Certificateholders representing more than 50% of the Invested Amount of
such Series or absent such reasonable indemnity as the
74
Trustee may require in connection with such direction, the Trustee shall
continue to hold the Participation Assets in accordance with the terms of the
Pooling and Servicing Agreements until the Trust Termination Date (or until a
majority of the Investor Certificateholders shall otherwise direct the Trustee);
provided that the terms of this Agreement, the related Supplement and the
---------
Servicing Agreement shall be deemed to remain in full force and effect, except
that no additional Receivables shall be allocated with respect to such Series.
The reasonable costs and expenses incurred by the Trustee and the Liquidation
Servicer in such sale shall be reimbursable to the Trustee and the Liquidation
Servicer as provided in Section 8.05. Any proceeds of such sale in excess of
------------
such amounts due in respect thereof shall be paid, pro rata, to the holders of
the Exchangeable Company Interest, unless and to the extent otherwise specified
in any applicable Supplement. Upon such Series Termination Date with respect to
the applicable Series, final payment of all amounts allocable to any Investor
Certificates of such Series shall be made in the manner provided in this Section
-------
9.02.
----
SECTION 9.03. Final Payment with Respect to Any Series.
----------------------------------------
(a) Written notice of any termination, specifying the
Distribution Date upon which the Investor Certificateholders of any Series may
surrender their Investor Certificates for payment of the final distribution with
respect to such Series and cancellation, shall be given (subject to at least 30
days' prior written notice from the Master Servicer to the Trustee containing
all information required for the Trustee's notice or such shorter period as is
acceptable to the Trustee) by the Trustee to Investor Certificateholders of such
Series mailed not later than the fifth day of the month of such final
distribution specifying (i) the Distribution Date upon which final payment of
the Investor Certificates will be made upon presentation and surrender of
Investor Certificates at the office or offices therein designated, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Investor Certificates at the office or
offices therein specified. The Master Servicer's notice to the Trustee in
accordance with the preceding sentence shall be accompanied by a Responsible
Officer's certificate setting forth the information specified in Section 4.03 of
------------
the Servicing Agreement covering the period during the then current calendar
year through the date of such notice. The Trustee shall give such notice to the
Transfer Agent and Registrar and the Paying Agent at the time such notice is
given to such Investor Certificateholders.
(b) Notwithstanding the termination of the Trust pursuant to
subsection 9.01(a) or the occurrence of the Series Termination Date with respect
------------------
to any Series pursuant to Section 9.02, all funds then on deposit in the
------------
Collection Accounts (but only to the extent necessary to pay all outstanding and
unpaid amounts to Holders) shall continue to be held in trust for the benefit of
the Holders and the Paying Agent or the Trustee shall pay such funds to the
Investor Certificateholders upon surrender of their Investor Certificates in
accordance with the terms hereof. Any Investor Certificate not surrendered on
the date specified in subsection 9.03(a)(i) shall cease to accrue any amounts
---------------------
due provided for such Investor Certificate from and after such date. In the
event that all of the Investor Certificateholders shall not surrender their
Investor Certificates for
75
cancellation within six (6) months after the date specified in the above-
mentioned written notice, the Trustee shall give a second written notice to the
remaining Investor Certificateholders of such Series to surrender their Investor
Certificates for cancellation and receive the final distribution with respect
thereto. If within one (1) year after the second notice all the Investor
Certificates of such Series shall not have been surrendered for cancellation,
the Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Investor Certificateholders of such
Series concerning surrender of their Investor Certificates, and the cost thereof
shall be paid out of the funds in the related Series Concentration Account held
for the benefit of such Investor Certificateholders. The Trustee and the Paying
Agent shall pay, pro rata, to the holders of the Exchangeable Company Interest
upon request any monies held by them for the payment of amounts due in respect
thereof that remains unclaimed for two (2) years and neither the Trustee nor the
Paying Agent shall be liable to any Investor Certificateholder for such payment
to the Company upon its request. After such payment to the Company, Holders
entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another Person.
(c) All Investor Certificates surrendered for payment of the
final distribution with respect to such Investor Certificates and cancellation
shall be canceled by the Transfer Agent and Registrar and be disposed of in a
customary manner satisfactory to the Trustee.
SECTION 9.04. The Company's Termination Rights. Upon the termination
--------------------------------
of the Trust pursuant to Section 9.01 and payment to the Trustee (in its
------------
capacity as such) of all amounts owed to it under any Pooling and Servicing
Agreement, the Trustee shall release the security interest of the Trust in the
Participation Assets, whether then existing or thereafter created, and all
proceeds thereof except for amounts held by the Trustee pursuant to subsection
----------
9.03(b). The Trustee shall execute and deliver such instruments in each case
-------
without recourse, representation or warranty (except with respect to the Trustee
Liens as set forth below), as shall be reasonably requested by the Company to
effect the release of all right, title and interest which the Trust had in the
Participation Assets free and clear of all Trustee Liens.
ARTICLE X
MISCELLANEOUS PROVISIONS
------------------------
SECTION 10.01. Amendment.
---------
(a) This Agreement, the Servicing Agreement and each Supplement
in respect of an outstanding Series (collectively, the "Pooling and Servicing
---------------------
Agreements") may be amended in writing from time to time by the Master Servicer,
----------
the Company and the Trustee with the written consent of the Funding Agent with
respect to any Outstanding Series, and without the consent of any Holder, to
cure any ambiguity, to correct or supplement any provisions herein or therein
which may be inconsistent with any other provisions herein or therein or to add
any other provisions hereof to change in any manner or eliminate any of the
provisions with respect to matters or questions raised under any Pooling and
Servicing Agreement which shall not be inconsistent with the
76
provisions of any Pooling and Servicing Agreement; provided, however, that such
-------- -------
action shall not, as evidenced by a Responsible Officer's certificate of the
Company delivered to the Trustee, have a Material Adverse Effect with respect to
the Company (but, to the extent that the determination of whether such action
would have a Material Adverse Effect with respect to the Company requires a
conclusion as to a question of law, an Opinion of Counsel shall be delivered to
the Trustee in addition to such Responsible Officer's certificate); provided
further any amendment that is entered into to provide additional Enhancement for
any Outstanding Series or to conform to regulations issued by the Internal
Revenue Service shall be deemed to have no Material Adverse Effect with respect
to the Company. The Trustee may, but shall not be obligated to, enter into any
such amendment pursuant to this paragraph or paragraph (b) below which affects
the Trustee's rights, duties or immunities under any Pooling and Servicing
Agreement or otherwise.
(b) Any Pooling and Servicing Agreement and, to the extent provided
in any Pooling and Servicing Agreement, any other agreement relating to the
Receivables may also be amended (other than in the circumstances referred to in
the preceding paragraph (a)) in writing from time to time by the Master
Servicer, the Company and the Trustee with the consent of the Funding Agent and
Investor Certificateholders evidencing more than 50% of the Invested Amount of
any Series adversely affected in any material respect by the amendment (or, if
any such Series shall have more than one Class of Investor Certificates
adversely affected in any material respect by the amendment, more than 50% of
the Invested Amount of each such Class) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of such
Pooling and Servicing Agreement or such other agreement or of modifying in any
manner the rights of Holders of any Series then issued and outstanding;
provided, however, that no such amendment shall (i) reduce in any manner the
-------- --------
amount of, or delay the timing of, distributions which are required to be made
on any Investor Certificate of such Series without the consent of such Investor
Certificateholder of such Series; (ii) change the definition of or the manner of
calculating the interest of any Investor Certificateholder of such Series
without the consent of such Investor Certificateholder; or (iii) reduce the
aforesaid percentage of the Invested Amount of any adversely affected Series or
Class the Holders of which are required to consent to any such amendment without
the consent of all Investor Certificateholders of each Series adversely affected
in any material respect.
(c) Notwithstanding anything in this Section 10.01 to the contrary,
-------------
the Supplement with respect to any Series may be amended on the terms and with
the procedures provided in such Supplement.
(d) Promptly after the execution of any such amendment or consent,
the Trustee shall furnish written notification of the substance of such
amendment to each Investor Certificateholder of each Outstanding Series (or with
respect to an amendment of a Supplement, to each Investor Certificateholder of
the applicable Series), and the Master Servicer shall furnish written
notification of the substance of such amendment to the Funding Agent and each
Rating Agency. No such material amendment (including without limitation, the
amendment of any Supplement notwithstanding
77
anything to the contrary contained in any Supplement) shall be effective until
the Rating Agency Condition has been satisfied.
(e) It shall not be necessary for the consent of Investor
Certificateholders under this Section 10.01 to approve the particular form of
-------------
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Investor Certificateholders shall
be subject to such reasonable requirements as the Trustee may prescribe.
(f) In executing or accepting any amendment pursuant to this
Section 10.01, the Trustee shall, upon request, be entitled to receive and rely
-------------
upon (i) an Opinion of Counsel stating that such amendment is authorized
pursuant to a specific provision of a Pooling and Servicing Agreement and
complies with such provision, (ii) a certificate from a Responsible Officer of
the Company stating that such (A) amendment shall not adversely affect the
interests of the Holders of any outstanding Investor Certificates in any
material respect except for Holders of the Series whose consent to such
amendment has been obtained in accordance with clause (b) of this Section 10.01
-------------
and (B) all conditions precedent to the execution and delivery of such amendment
shall have been satisfied in full and (iii) a Tax Opinion.
SECTION 10.02. Protection of Right, Title and Interest to Trust. The
------------------------------------------------
Company (or the Master Servicer or Servicer Guarantor) shall cause each Pooling
and Servicing Agreement, all amendments thereto and/or all financing statements
and continuation statements and any other necessary documents covering the
Holders' and the Trustee's right, title and interest to the Trust and the
Participation Assets to be promptly recorded, registered and filed, and at all
times to be kept recorded, registered and filed, all in such manner and in such
places as may be required by law fully to preserve and protect the right, title
and interest of the Trustee hereunder to all property comprising the Trust. The
Company (or the Master Servicer or Servicer Guarantor) shall deliver to the
Trustee copies of, or filing receipts for, any document recorded, registered or
filed as provided above, as soon as available following such recording,
registration or filing. In the event that the Master Servicer fails to file such
financing or continuation statements and the Trustee has received an Opinion of
Counsel, at the expense of the Company, that such filing is necessary to fully
preserve and to protect the Trustee's right, title and interest in any
Participation Asset then the Trustee shall have the right to file the same on
behalf of the Master Servicer, the Company and the Trustee shall be reimbursed
and indemnified by the Company for making such filing. The Company shall
cooperate fully with the Master Servicer in connection with the obligations set
forth above and will execute any and all documents reasonably required to
fulfill the intent of this Section 10.02.
-------------
(a) The death or incapacity of any Holder shall not operate to
terminate this Agreement or the Trust, nor shall such death or incapacity
entitle such Holder's legal representatives or heirs to claim an accounting or
to take any action or commence any proceeding in any court for a partition or
winding up of the Trust, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
78
(b) Except with respect to the Investor Certificateholders as
expressly provided in any Pooling and Servicing Agreement, no Holder shall have
any right to vote or in any manner otherwise control the operation and
management of the Trust, or the obligations of the parties hereto; nor shall any
Holder be under any liability to any third person by reason of any action taken
by the parties to this Agreement pursuant to any provision hereof.
(c) No Holder shall have any right by virtue of any provisions
of this Agreement to institute any suit, action or proceeding in equity or at
law upon or under or with respect to this Agreement, unless such Holder
previously shall have given to the Trustee written request to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to initiate any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted by
each Holder with every other Holder and the Trustee, that no one or more
Holder(s) shall have any right in any manner whatever by virtue or by availing
itself or themselves of any provisions of the Pooling and Servicing Agreements
to affect, disturb or prejudice the rights of any other of the Interests, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders. For the
protection and enforcement of the provisions of this Section 10.02, each and
-------------
every Holder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
(d) By their acceptance of Interests pursuant to this Agreement
and the applicable Supplement, the Holders agree to the provisions of this
Section 10.02.
-------------
SECTION 10.03. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY,
-------------
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ANY CONFLICTS OF LAWS PRINCIPLES OTHER THAN SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW, EXCEPT TO THE EXTENT THAT ISSUES OF PERFECTION
ARE GOVERNED BY THE LAWS OF ANOTHER JURISDICTION.
SECTION 10.04. 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 days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows (i) in the case of the Company, the Master
Servicer and the Trustee, or to such other address as may be hereafter notified
by the respective parties hereto:
The Company:
Huntsman Receivables Finance LLC
c/o Huntsman International LLC
79
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇:
Attention: Office of General Counsel
Telephone No.: ▇ (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: ▇ (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to the Master Servicer
The Master Servicer:
Huntsman (Europe) BVBA
▇▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: Treasury Department
Phone No.: ▇▇ ▇ ▇▇▇ ▇▇▇▇
Facsimile No.: 32 2 759 5501
The Trustee:
Chase Manhattan Bank (Ireland) plc
Chase Manhattan House
International Financial Services Centre
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone ▇▇. ▇▇▇ ▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ No. 353 1 612 5777
Any notice required or permitted to be mailed to a Holder shall be given by
first-class mail, postage prepaid, at the address of such Holder as shown in the
Certificate Register, the Exchange Register or the Subordinated Interest
Register, as the case may be. Any notice so mailed within the time prescribed in
any Pooling and Servicing Agreement shall be conclusively presumed to have been
duly given, whether or not the Holder receives such notice. With respect to
service of process in the United States, the Master Servicer and the Trustee
hereby appoint CT Corporation as their respective agent for service of process
in the United States.
SECTION 10.05. Severability of Provisions. If any one or more of
--------------------------
the covenants, agreements, provisions or terms of any Pooling and Servicing
Agreement shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of such Pooling and Servicing
Agreement and shall in no way affect the validity or enforceability of the other
provisions of any Pooling and Servicing Agreement or of the Investor
Certificates or rights of the Holders.
SECTION 10.06. Assignment. Notwithstanding anything to the
----------
contrary contained herein, except as provided in Section 5.03 of the Servicing
------------
Agreement, no Pooling and Servicing Agreement, nor any rights or interests
thereunder, may be assigned by the Company or the Master Servicer without the
prior written consent of the Trustee
80
acting on behalf of the Holders of 66-2/3% of the Invested Amount of each
Outstanding Series and without the Rating Agency Condition having been satisfied
with respect to such assignment.
SECTION 10.07. Investor Certificates Nonassessable and Fully Paid. It
--------------------------------------------------
is the intention of the parties to each Pooling and Servicing Agreement that the
Investor Certificateholders shall not be personally liable for obligations of
the Trust, that the interests in the Trust represented by the Investor
Certificates shall be nonassessable for any losses or expenses of the Trust or
for any reason whatsoever and that Investor Certificates upon authentication
thereof by the Trustee pursuant to Section 5.02 are and shall be deemed fully
------------
paid.
SECTION 10.08. Further Assurances. Each of the Company, the Servicer
------------------
Guarantor and the Master Servicer hereby agree to do and perform, from time to
time, any and all acts (including but not limited to notifying related Obligors
to the extent necessary to perfect the grant of any Participation hereunder by
the Company to the Trust, except to the extent that the relevant UCC and other
similar laws (to the extent applicable) permit the Company (or its assignees) to
provide such notification subsequent to the applicable Receivables Origination
Date without materially impairing the Trust's Participation and security
interest in the Participation Assets and without incurring material expenses in
connection with such notification) and to execute any and all further
instruments required or reasonably requested by the Trustee more fully to effect
the purposes of each Pooling and Servicing Agreement, including, without
limitation, the execution of any financing statements or continuation statements
relating to the Receivables for filing under the provisions of the UCC (or other
applicable laws) of any applicable jurisdiction.
SECTION 10.09. No Waiver; Cumulative Remedies. No failure to exercise
------------------------------
and no delay in exercising, on the part of the Trustee or the Investor
Certificateholders, 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.
SECTION 10.10. Counterparts. This Agreement may be executed in two or
------------
more counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one and
the same instrument.
SECTION 10.11. Third-Party Beneficiaries. This Agreement will inure
-------------------------
to the benefit of and be binding upon the parties hereto and the Holders and
their respective successors and permitted assigns. Except as otherwise provided
in this Section 10.11 and in any Supplement, no other Person will have any right
-------------
or obligation hereunder.
81
SECTION 10.12. Actions by Investor Certificateholders.
--------------------------------------
(a) Wherever in any Pooling and Servicing Agreement a provision
is made that an action may be taken or a notice, demand or instruction given by
Investor Certificateholders, such action, notice or instruction may be taken or
given by any Investor Certificateholders of any Series, unless such provision
requires a specific percentage of Investor Certificateholders of a certain
Series or all Series.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other act by an Investor Certificateholder shall bind such
Investor Certificateholder and every subsequent Holder of such Investor
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done or omitted to be done by
the Trustee, the Company and the Master Servicer in reliance thereon, whether or
not notation of such action is made upon such Investor Certificate.
SECTION 10.13. Merger and Integration. Except as specifically stated
----------------------
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement and the Servicing Agreement.
This Agreement and the Servicing Agreement may not be modified, amended, waived,
or supplemented except as provided herein.
SECTION 10.14. Headings. The headings herein are for purposes of
--------
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
SECTION 10.15. No Setoff. Except as expressly provided in this
---------
Agreement or any other Transaction Document, the Trustee agrees that it shall
have no right of setoff or banker's lien against, and no right to otherwise
deduct from, any funds held in the Collection Accounts or the Company
Concentration Accounts for any amount owed to it by the Company, the Master
Servicer or any Holder.
SECTION 10.16. No Bankruptcy Petition. Each of the Trustee (for
----------------------
itself and on behalf of the Holders) and the Master Servicer hereby covenant and
agree that it will not institute against, or join any other Person in
instituting against, the Company any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings (including, but not
limited to, petitioning for the declaration of the Company's assets en desastre)
under any Applicable Insolvency Laws.
SECTION 10.17. Limitation of Liability. It is expressly understood
-----------------------
and agreed by the parties hereto that (a) each Pooling and Servicing Agreement
is executed and delivered by the Trustee, not individually or personally but
solely as Trustee of the Trust, in the exercise of the powers and authority
conferred and vested in it, (b) except with respect to Section 8.15 the
------------
representations, undertakings and agreements herein made on the part of the
Trust are made and intended not as personal representations, undertakings and
agreements by the Trustee, but are made and intended for the purpose of binding
only the Trust, (c) nothing herein contained shall be construed as creating any
82
liability on the Trustee, individually or personally, to perform any covenant
either expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties who are signatories to this Agreement and by any
Person claiming by, through or under such parties; provided, however, the
-------- --------
Trustee shall be liable in its individual capacity for its own willful
misconduct or gross negligence and for any tax assessed against the Trustee
based on or measured by any fees, commission or compensation received by it for
acting as Trustee and (d) under no circumstances shall the Trustee be personally
liable for the payment of any indebtedness or expenses of the Trust or be liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Trust under any Pooling and Servicing
Agreement; provided, further, that this Section 10.17 shall survive the
-------- ------- -------------
resignation or removal of the Trustee.
Except as otherwise provided hereunder, each of Contributor, the
Company and the Master Servicer severally hereby agrees to indemnify and hold
harmless the Trustee, the Trust (for the benefit of the Holders) and the Holders
(each, an "Indemnified Person") from and against any loss, liability, expense,
------------------
damage or injury suffered or sustained by reason of any acts, omissions or
alleged acts or omissions arising out of, or relating to, activities of the
Company pursuant to any Pooling and Servicing Agreement to which it is a party,
including but not limited to any judgment, award, settlement, reasonable
attorneys' fees and other reasonable costs or expenses incurred in connection
with the defense of any actual or threatened action, proceeding or claim, except
to the extent such loss, liability, expense, damage or injury resulted from the
gross negligence, bad faith or willful misconduct of an Indemnified Person or
resulted from the performance of any Receivable, market fluctuations or other
market or investment risk not attributable to acts or omissions or alleged acts
or omissions of the Company; provided, however, that any payments to be made by
-------- -------
the Company pursuant to this subsection shall be Company Subordinated
Obligations.
SECTION 10.18. Certain Information. The Master Servicer and the
-------------------
Company shall promptly provide to the Trustee such information in computer tape,
hard copy or other form regarding the Receivables as the Trustee may reasonably
determine to be necessary to perform its obligations hereunder.
SECTION 10.19. Responsible Officer Certificates; No Recourse. Any
---------------------------------------------
certificate executed and delivered by a Responsible Officer of the Company or
the Trustee 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 Company or the Trustee, as applicable, and
such Responsible Officer will not subject to personal liability as to matters
contained in the certificate. A director, officer, employee or shareholder, as
such, of the Company shall not have liability for any obligation of the Company
hereunder or under any Transaction Document or for any claim based on, in
respect of, or by reason of, any Transaction Document, unless such claim results
from the gross negligence, fraudulent acts or willful misconduct of such
director, officer, employee or shareholder.
83
IN WITNESS WHEREOF, the Company, the Master Servicer and the Trustee
have caused this Agreement to be duly executed by their respective officers as
of the day and year first above written.
HUNTSMAN RECEIVABLES FINANCE LLC,
as the Company,
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
HUNTSMAN (EUROPE) BVBA,
as Master Servicer,
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
CHASE MANHATTAN BANK
(IRELAND) plc,
not in its individual capacity
but solely as Trustee,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
HUNTSMAN INTERNATIONAL LLC,
Acknowledged and agreed to with respect
to Sections 5.03, 6.03, 7.01 and 10.18
------------- ---- ---- -----
By: /s/ J. ▇▇▇▇ ▇▇▇▇▇▇
Name: J. ▇▇▇▇ ▇▇▇▇▇▇
Title: Executive VP and CFO
1
ANNEX X
"1940 Act" shall mean the United States Investment Company Act of
1940, as amended.
"ABR" shall mean, for any day, a per annum alternate base rate
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such
day plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. If for any reason, the Funding Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Base CD Rate or the Federal Funds Effective Rate or both for any
reason, including the inability or failure of the Funding Agent to obtain
sufficient quotations in accordance with the terms of the definitions thereof,
the ABR shall be determined without regard to clause (b) or (c), or both, of the
immediately preceding sentence, as appropriate, until the circumstances giving
rise to such inability no longer exist. Any change in the ABR due to a change
in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate, the Base CD
Rate or the Federal Funds Effective Rate, respectively. The term "Prime Rate"
shall mean the rate of interest per annum publicly announced from time to time
by the Funding Agent as its prime rate in effect at its principal office in New
York City; each change in the Prime Rate shall be effective on the date such
change is publicly announced as being effective. The term "Base CD Rate" shall
mean the sum of (a) the product of (i) the Three-Month Secondary CD Rate and
(ii) Statutory Reserves and (b) the Assessment Rate. The term "Three-Month
Secondary CD Rate" shall mean, for any day, the secondary market rate for three-
month certificates of deposit reported as being in effect on such day (or, if
such day shall not be a Business Day, the next preceding Business Day) by the
Board through the public information telephone line of the Federal Reserve Bank
of New York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the week
following such day), or, if such rate shall not be so reported on such day or
such next preceding Business Day, the average of the secondary market quotations
for three-month certificates of deposit of major money center banks in New York
City received at approximately 10:00 a.m. New York City time, on such day (or,
if such day shall not be a Business Day, on the next preceding Business Day) by
the Funding Agent from three negotiable certificate of deposit dealers in New
York City of recognized standing selected by it.
"Accrual Period" shall mean, for any Series, the period from and
including a Distribution Date, or, in the case of the initial Accrual Period for
such Series, the date of issuance of such Series, to but excluding the
succeeding Distribution Date.
"Additional Originator" shall mean any Originator added as an Approved
Originator pursuant to Section 2.09 of the Pooling Agreement after the Series
2000-1 Issuance Date.
"Adjusted Invested Amount" shall mean, with respect to any Outstanding
Series, the definition assigned to such term in the related Supplement.
"Adjusted Liquidity Price" shall have the meaning assigned to such
term in the Series 2000-1 Asset Purchase Agreement.
"Adjustment Payments" shall mean the collective reference to payments
of Transfer Deposit Amounts and Cash Dilution Payments.
"Administrative Agent" shall mean Chase, a New York banking APA
corporation, as administrative agent on behalf of PARCO, and its successors and
assigns in such capacity.
"Affected APA Bank" shall have the meaning assigned to such term in
the Series 2000-1 Asset Purchase Agreement.
"Affiliate" shall mean, with respect to any specified Person, any
other Person which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such specified Person. For purposes of this
definition "control" of a Person means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Aged Receivables Ratio" shall mean, as of the last day of each
Settlement Period, the percentage equivalent of a fraction, the numerator of
which shall be the sum of (a) the aggregate unpaid balance of Receivables
contributed by the Contributor to the Company (and with respect to which the
Company has granted the Participation and a security interest to the Trust) that
were 61 to 90 days past due and (b) the aggregate amount of Receivables that
were charged off as uncollectible prior to the day that is 61 days after its
original due date during such Settlement Period, and the denominator of which
shall be the aggregate Principal Amount of Receivables contributed by the
Contributor to the Company (and with respect to which the Company has granted
the Participation and a security interest to the Trust) during the fourth prior
Settlement Period (including the Settlement Period ended on such day).
"Aggregate Adjusted Invested Amount" shall mean, with respect to any
date of determination, the sum of the Adjusted Invested Amounts with respect to
all Outstanding Series on such date of determination.
"Aggregate Allocated Receivables Amount" shall mean, with respect to
any date of determination, the sum of the Allocated Receivables Amounts with
respect to all Outstanding Series on such date of determination.
"Aggregate Commitment" shall have the meaning assigned to such term in
the Series 2000-1 Asset Purchase Agreement.
"Aggregate Daily Collections" shall mean, with respect to any Business
Day, the aggregate amount of all Collections in immediately available funds
deposited into the Company Concentration Accounts on such day by 12:30 p.m.
London time and available for allocation to different Series. The Trustee shall
be informed by the Master
Annex X-2
Servicer by 10:00 a.m. London time, of each separate transfer to any Company
Collection Account.
"Aggregate Initial Daily Collections" shall mean, with respect to any
Business Day, the aggregate amount of all Collections deposited into the
Collection Accounts.
"Aggregate Invested Amount" shall mean, at any date of determination,
the sum of the Invested Amounts with respect to all Outstanding Series on such
date of determination.
"Aggregate Obligor Country Overconcentration Amounts" shall mean, on
any date of determination, the aggregate Principal Amount of non Defaulted
Receivables due from Obligors in Approved Obligor Countries which, when
expressed as a percentage of the Principal Amount of all Eligible Receivables in
the Trust at such date of determination, exceeds the Approved Obligor Country
Limit.
"Aggregate Obligor Overconcentration Amount" shall mean, on any date
of determination, the Principal Amount of non-Defaulted Receivables in the Trust
due from an Eligible Obligor when expressed as a percentage of the Principal
Amount of all Eligible Receivables in the Trust at such date of determination
exceeds the percentage set forth in Schedule 3 to the Pooling Agreement for the
applicable ratings category of long-term senior debt of that Obligor, or if such
Obligor is unrated and is a wholly-owned Subsidiary of a Person, then the
applicable ratings category of long-term senior debt (or such higher percentage
necessary to satisfy the Rating Agency Condition); provided, however, for
-------- -------
purposes of this definition that all Eligible Obligors that are Affiliates of
each other shall be deemed to be a single Eligible Obligor to the extent the
Master Servicer has actual knowledge of the affiliation and in that case, the
applicable debt rating for such group of Obligors shall be the debt rating of
the ultimate parent of the group.
"Aggregate Receivables Amount" shall mean, on any date of
determination, the aggregate Principal Amount of all Eligible Receivables owned
by the Company at the end of the Business Day immediately preceding such date
minus (i) the Aggregate Obligor Overconcentration Amount; (ii) the Aggregate
Obligor Country Overconcentration Amount; (iii) an amount equal to Timely
Payment Discounts and Commission Accruals; (iv) an amount equal to the Volume
Rebate Accrual; and (v) the Potential Offset Amount.
"Aggregate Subordinated Interest Amount" shall mean, the sum of the
Subordinated Interest Amounts held by all holders of the Series 2000-1
Subordinated Interests.
"Aggregate Target Receivables Amount" shall mean, on any date of
determination, the sum of the Target Receivables Amounts with respect to all
Outstanding Series on such date of determination.
Annex X-3
"Allocable Charged-Off Amount" shall have, with respect to any Series,
the meaning assigned in subsection 3.01(e)(i)(A) of the Pooling Agreement and in
any Supplement for such Series.
"Allocable Recoveries Amount" shall have, with respect to any Series,
the meaning assigned in subsection 3.01(e)(i)(B) of the Pooling Agreement and in
any Supplement for such Series.
"Allocated Receivables Amount" shall have, with respect to any
Outstanding Series, the meaning assigned in the related Supplement for such
Outstanding Series.
"Amortization Period" shall have, with respect to any Outstanding
Series, the meaning assigned to such term in the related Supplement.
"APA Bank Aggregate Invested Amount" shall have the meaning assigned
to it in the Series 2000-1 Asset Purchase Agreement.
"APA Bank Invested Amount" shall have the meaning assigned to such
term in the Series 2000-1 Asset Purchase Agreement.
"APA Bank Purchase Percentage" shall have the meaning assigned to such
term in the Series 2000-1 Asset Purchase Agreement.
"Applicable Insolvency Laws" shall mean, with respect to any Person,
any applicable bankruptcy, insolvency or other similar United States or foreign
law now or hereafter in effect.
"Applicable Stamp Duty Amount" shall have the meaning assigned in
Section 2.07(r) of the Pooling Agreement.
"Applicants" shall have the meaning assigned in Section 5.08 of the
Pooling Agreement.
"Appropriate Rating" shall mean (i) the rating required to maintain
the existing rating on each Outstanding Series of Investor Certificates and if
no such rating exists for such Series of Investor Certificates then (ii) a
rating at a level agreed upon between the Company and the Trustee acting at the
direction of the Funding Agent(s).
"Approved Contract Jurisdiction" shall mean (i) on the Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇ Date, the jurisdictions set forth in the Receivables Specification and
Exception Schedule attached to the Pooling Agreement as Schedule 4 under the
heading "Approved Contract Jurisdictions", representing jurisdictions the law of
which may govern Contracts and (ii) after the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date, any
additional contract jurisdiction added, provided that the provisions of Section
--------
2.09 of the Pooling Agreement have been satisfied.
Annex X-4
"Approved Currency" shall mean (i) on the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars, Pound Sterling, and Euro and (ii) after the Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇ Date, any other legal currency, provided that the provisions of Section
--------
2.09 of the Pooling Agreement have been satisfied.
"Approved Obligor Country" shall mean (i) on the Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇ Date, the countries set forth in the Receivables Specification and
Exception Schedule attached to the Pooling Agreement as Schedule 3 under the
heading "Approved Obligor Countries"; provided that Sweden and Denmark shall be
Approved Obligor Countries only upon receipt by the Funding Agent of
satisfactory historical financial data, as confirmed in writing by the Funding
Agent; provided, further, that a country will not be classified as an Approved
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Obligor Country unless the Rating Agency Condition have been satisfied prior to
and in connection with such classification; (ii) any conditions set forth in
Schedule 3 have been satisfied with respect to such country; and (iii) after the
----------
Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date, any Obligor Country which may be added pursuant to
and in accordance with the provisions of subsection 2.09(c) of the Pooling
Agreement.
"Approved Obligor Country Limit" shall mean, with respect to each
Approved Obligor Country set forth in the Receivables Specification and
Exception Schedule attached to the Pooling Agreement as Schedule 3 under the
heading "Approved Obligor Countries", the percentage appearing next to the name
of such country, such percentage representing with respect to each such country
the maximum aggregate percentage of Receivables that may constitute the Trust
pool where the related Obligors are residents in such country.
"Approved Originator" shall mean (i) on the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇
Date, (A) with respect to the U.S. Originators, Tioxide Americas Inc., Huntsman
Propylene Oxide Ltd., International Fuels L.P. and Huntsman International LLC;
and (B) with respect to the European Originators, Huntsman ICI Holland BV,
Tioxide Europe Ltd. and Huntsman Petrochemicals (UK) Limited and (ii) after the
Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date, any Originator which may be approved as an
Additional Originator pursuant to, and in accordance with, the provisions of
Section 2.09 of the Pooling Agreement.
"Approved Originator Joinder Agreement" shall mean the agreement in
the form attached to the applicable Origination Agreement.
"Attributable Stamp Duty Reserve Amount" shall have the meaning
assigned in Section 2.07(u)(i) of the Pooling Agreement.
"Authorized Newspaper" shall mean collectively, the Wall Street
Journal, the International Wall Street Journal, the Financial Times (European
Edition) of London, England, and solely with respect to Certificates listed on
the Luxembourg Stock Exchange, the Luxembourger Wort of Luxembourg. If any of
such newspapers shall cease to be published, the Master Servicer, the Company
(or the Master Servicer on behalf of the Company) or the Trustee shall
substitute for it another newspaper in Luxembourg (with respect to the
Luxembourger Wort) and in Europe (with respect to the International Wall Street
Journal and the Financial Times (European Edition) of London,
Annex X-5
England) and in the United States (with respect to the Wall Street Journal),
customarily published at least once a day for at least five (5) days in each
calendar week, of general circulation.
"Available Commitment" shall have the meaning assigned to such term in
the Series 2000-1 Asset Purchase Agreement.
"Bankruptcy Code" shall mean the United States Federal Bankruptcy
Code, 11 U.S.C. (S)(S) 101-1330, as amended.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States of America.
"Book-Entry Certificates" shall mean Certificates evidencing a
beneficial interest in the Investor Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.12 of the Pooling Agreement; provided, however, that after the
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occurrence of a condition whereupon book-entry registration and transfer are no
longer permitted and Definitive Certificates are issued to the Certificate Book-
Entry Holders, such Investor Certificates shall no longer be "Book-Entry
Certificates".
"Business Day" shall mean any day other than (i) a Saturday or a
Sunday and (ii) any other day on which commercial banking institutions or trust
companies in (A) the State of New York or (B) the city where the Corporate Trust
Office of the Trustee is located, which on the Effective Date shall be Dublin,
Ireland and which, in each case, are authorized or obligated by law, executive
order or governmental decree to be closed as set forth in Schedule 4 to Pooling
Agreement; provided that, when used in connection with the calculation of
--------
Certificate Rates which are determined by reference to the Eurodollar Rate or
One-Month LIBOR, "Business Day" shall mean any Business Day banks are open for
dealings in dollar deposits in the London interbank market.
"Business Day Received" shall mean, except as otherwise set forth in
the applicable Supplement, with respect to funds deposited in a Collection
Account, such day of deposit.
"Cash Dilution Payment" shall have the meaning assigned in subsection
4.05(a) of the Servicing Agreement.
"Certificate" shall mean any certificate issued pursuant to the
Pooling Agreement or any Supplement.
"Certificate Book-Entry Holder" shall mean, with respect to a Book-
Entry Certificate, the Person who is listed on the books of the Clearing Agency,
or on the books of a Person maintaining an account with such Clearing Agency, as
the beneficial owner of such Book-Entry Certificate (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
Annex X-6
"Certificate of Formation" shall mean the certificate of formation
with respect to the Company filed with the Secretary of State of Delaware
pursuant to Section 18-201 of the Delaware Limited Liability Company Act, and
any and all amendments thereto and restatements thereof.
"Certificate Payments" shall have the meaning assigned to such term in
the 2000-1 Asset Purchase Agreement.
"Certificate Rate" shall mean, with respect to any Series and Class of
Investor Certificates, the percentage interest rate (or formula on the basis of
which such interest rate shall be determined) stated in the applicable
Supplement.
"Certificate Register" shall mean the register maintained pursuant to
subsection 5.03(a) of the Pooling Agreement providing for the registration of
the Investor Certificates and transfers and exchanges thereof.
"Charged-Off Receivables" shall mean, with respect to any Settlement
Period, all Receivables which, in accordance with the Policies have or should
have been written off during such Settlement Period as uncollectible, including
without limitation the Receivables of any Obligor which becomes the subject of
any voluntary or involuntary bankruptcy proceeding.
"Chase" shall mean Chase Manhattan Bank (Ireland) plc, a banking
authority incorporated in Ireland and its permitted successors and assigns.
"Chase Roles" shall have the meaning assigned in Section 11.17 of the
Series 2000-1 Supplement and Section 4.10 of the Series ▇▇▇▇-▇ ▇▇▇▇▇ Purchase
Agreement.
"Class" shall mean, with respect to any Series, any one of the classes
of Investor Certificates of that Series as specified in the related Supplement.
"Clean-Up Call Repurchase Price" shall have the meaning assigned in
subsection 9.02(a) of the Pooling Agreement.
"Clearing Agency" shall mean each organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended.
"Clearing Agency Participant" shall mean a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
such Clearing Agency.
"Clearstream" means Clearstream Banking, societe anonyme.
"Closing Date" shall mean the Effective Date.
Annex X-7
"Code" shall mean the United States Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder from time to time.
"Collection Account Agreements" shall mean (i) on the Effective Date,
each of the Collection Account Agreements, dated as of December 21, 2000 (or
thereabout, between the Company and the Collection Account Bank, and (ii) after
the Effective Date, any other collection account agreement entered into by the
Company and an Eligible Institution, in each case substantially in the form
attached as Schedule 3 to the Contribution Agreement.
"Collection Account Bank" shall mean any bank holding a Collection
Account or a Master Collection Account which initially will be ABN AMRO,
Citibank, Lloyds TSB and Bank of America and thereafter, any Eligible
Institution appointed by the Company to be the Collection Account Bank.
"Collection Accounts" shall mean the accounts established and
maintained by the Company in accordance with the Collection Account Agreements
and into which Collections shall be deposited.
"Collections" shall mean all collections and all amounts received in
respect of the Receivables in which a Participation has been granted to the
Trust and in which a security interest was granted in favor of the Trustee for
the benefit of the Certificateholders, including Recoveries, Adjustment
Payments, indemnification payments made by the Master Servicer, an Originator or
the Company and payments received in respect of Dilution Adjustments, together
with all collections received in respect of the Related Property in the form of
cash, checks, wire transfers or any other form of cash payment, and all proceeds
of Receivables and collections thereof (including, without limitation,
collections evidenced by an account, note, instrument, letter of credit,
security, contract, security agreement, chattel paper, general intangible or
other evidence of indebtedness or security, whatever is received upon the sale,
exchange, collection or other disposition of, or any indemnity, warranty or
guaranty payable in respect of, the foregoing and all "proceeds" of the
Receivables as defined in Section 9-306 of the applicable UCC.
"Commercial Paper" shall mean the short-term promissory notes of PARCO
issued in the United States commercial paper market.
"Commission" shall have the meaning assigned to such term in the
Subscription Agreement.
"Common Depositary" shall mean, with respect to the Series 2000-2 Term
Certificates, Chase, London, in its capacity as common depositary for the
respective accounts of the Foreign Clearing Agencies and any successors thereto.
"Company" shall mean Huntsman Receivables Finance LLC, a limited
liability company organized under the laws of the State of Delaware.
Annex X-8
"Company Concentration Accounts" shall mean the accounts which are
established by the Trustee pursuant to Section 3.01(a)(i) of the Pooling
Agreement and set forth in Schedule 1 to the Pooling Agreement.
"Company Obligations" shall mean all obligations owed by the Company
for commissions, fees, expenses, indemnifications, and all other obligations and
liabilities of every nature of the Company, from time to time owed to the
Trustee, each Funding Agent and the Investor Certificateholders, whether direct
or indirect, absolute or contingent, due or to become due, or now existing or
thereafter incurred, whether on account of commissions, amounts owed and
payable, incurred fees, indemnities, out-of-pocket costs or expenses (including,
without limitation, all reasonable fees and disbursements of counsel) or
otherwise which arise under any Transaction Document.
"Company Receipts Accounts" shall mean the accounts established and
maintained by the Company pursuant to Section 3.01(c)(i) of the Pooling
Agreement and set forth in Schedule 1 to the Pooling Agreement, which are in
existence from time to time and into which amounts due to the Company under the
Pooling Agreement and any Supplement are deposited from time to time.
"Company Subordinated Obligations" shall mean any Company Obligation
or other liability designated as such in any Pooling and Servicing Agreement,
each of which payment obligations and other liabilities shall (i) be
subordinated and subject to the prior payment in full of all Company
Unsubordinated Obligations then due, (ii) be made solely from funds available to
the Company that are not required to be applied to Company Unsubordinated
Obligations then due and (iii) not constitute a general recourse claim against
the Company, but only a claim against the Company to the extent of funds
available to the Company after satisfying all Company Unsubordinated Obligations
then due.
"Company Unsubordinated Obligations" shall mean all Company
Obligations and other liabilities of the Company under any Pooling and Servicing
Agreement that are not designated as Company Subordinated Obligations.
"Company Exchange" shall have the meaning assigned in subsection
5.11(a) of the Pooling Agreement.
"Conduit Assignee" shall mean any special purpose vehicle issuing
indebtedness in the commercial paper market that is administered by Chase.
"Confidential Information" shall have the meaning assigned to such
term in Section 8.16 of the Contribution Agreement.
"Contract" shall mean an agreement between an Originator and an
Obligor (including but not limited to, a written contract, an invoice, a
purchase order or an open account) pursuant to or under which such Obligor shall
be obligated to make payments in respect of any Receivable or any Related
Property to such Originator from time to time.
Annex X-9
"Contractual Obligation" shall mean, as to any Person, any provision
of any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Contribution Agreement" shall mean the U.S. Contribution Agreement
dated as of December 20, 2000 between Huntsman International, as contributor,
and the Company, as amended, supplemented or otherwise modified from time to
time in accordance with the Transaction Documents.
"Contribution Date" has the meaning set forth in Section 2.01(a) of
the Contribution Agreement.
"Contribution Value" has the meaning set forth in Section 2.02 of the
Contribution Agreement.
"Contributor" shall mean Huntsman International LLC.
"Contributor Adjustment Payment" shall have the meaning assigned to
such term in Section 2.06(a) of the Contribution Agreement.
"Contributor Dilution Adjustment Payment" shall have the meaning
assigned to such term in Section 2.05 of the Contribution Agreement.
"Contributor Indemnification Payment" shall have the meaning assigned
to such term in Section 2.06(b) of the Contribution Agreement.
"Corporate Trust Office" shall mean the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the Effective Date is located at Chase Manhattan
House International Financial Services Centre, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇.
"Credit Enhancement" shall have the meaning ascribed to such term in
the Asset Purchase Agreement for the respective Series.
"Credit Enhancer" shall mean, with respect to any Series, that Person,
if any, designated as such in the applicable Supplement.
"CT Corporation" shall mean CT Corporation Inc.
"Daily Report" shall mean a report prepared by the Master Servicer
pursuant to Section 4.01 of the Servicing Agreement on each Business Day,
substantially in the form of Exhibit C attached to the Pooling Agreement. For
the avoidance of doubt, the copy of the Daily Report transmitted to the Trustee
pursuant to Section 2.01(d) of the Contribution Agreement shall be signed by the
Master Servicer but the Daily Report transmitted to the Company pursuant to
section 2.01(a) of the Contribution Agreement shall not be signed by any party.
Annex X-10
"Days Sales Outstanding" shall mean, as of any Settlement Report Date
and continuing until (but not including) the next Settlement Report Date, the
number of days equal to the product of (i) 91 and (ii) the amount obtained by
dividing (A) the aggregate Principal Amount of Receivables as of the last day of
the Settlement Period immediately preceding such earlier Settlement Report Date,
by (B) the aggregate Principal Amount of Receivables contributed by the
Contributor to the Company (and with respect to which thereafter the Company has
granted the Participation to the Trust and a security interest in favor of the
Trustee for the benefit of the Certificateholders) for the three Settlement
Periods immediately preceding such earlier Settlement Report Date.
"Defaulted Receivable" shall mean any Eligible Receivable (a) which is
unpaid in whole or in part (other than as a result of a Dilution Adjustment) for
more than sixty (60) days after its original due date or (b) which is a Charged-
Off Receivable prior to sixty (60) days after the original due date.
"Deficit" shall have the meaning assigned to such term in the Series
2000-1 Asset Purchase Agreement.
"Definitive Certificates" shall have the meaning assigned in Section
5.12 of the Pooling Agreement.
"Delinquency Ratio" shall mean, as of the last day of each Settlement
Period, the percentage equivalent of a fraction, the numerator of which shall be
the aggregate unpaid balance of Receivables contributed by the Contributor to
the Company (and with respect to which the Company has granted a Participation
and a security interest to the Trust) that were thirty one (31) to sixty (60)
days past due during such Settlement Period, and the denominator of which shall
be the aggregate Principal Amount of Receivables contributed by the Contributor
to the Company (and, in each case, the Company has granted a Participation and a
security interest to the Trust) during the third prior Settlement Period
(including the Settlement Period ended on such day).
"Depository" shall mean, with respect to any Series, the Clearing
Agency designated as the "Depository" in the related Supplement.
"Depository Agreement" shall mean, with respect to any Series, an
agreement among the Company, the Trustee and a Clearing Agency, in a form
reasonably satisfactory to the Trustee, and the Company.
"Depository Participant" shall mean a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Dilution Adjustment" shall mean any payment adjustments (including,
without limitation, payment adjustments arising as a result of any
reconciliation, but excluding any adjustments to correct clerical errors on
invoices that do not reduce the Principal Amount thereof) of any Eligible
Receivables, the amount owing for any cancellations (unless replaced on the same
Business Day as the day of cancellation with an invoice or invoices relating to
the same transaction of equal or greater Principal
Annex X-11
Amount) and the amount of any other reduction of any payment under any
Receivable, in each case granted or made by an Originator to the related
Obligor; provided, however, that a "Dilution Adjustment" does not include any
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Charged-Off Receivable, any Timely Payment Discount or any Volume Rebate.
"Dilution Horizon" shall mean in relation to any Receivable the number
of days from the date on which such Receivable was created until the earlier of
(i) the date on which a Dilution Adjustment with respect to such Receivable is
issued by the Originator and (ii) the date on which the Originator receives
notice that a Dilution Adjustment will have to be issued in respect of such
Receivable.
"Dilution Horizon Factor" shall mean, for any six-month period
following the Effective Date (beginning and ending on a Settlement Report Date
or for the first six-month period, beginning on the Effective Date and ending on
a Settlement Report Date), a fraction, the numerator of which is the aggregate
weighted average Dilution Horizon of the Originators (based upon the Dilution
Adjustment of the selected Receivables) for such period (which shall be
calculated by the Master Servicer, in accordance with its past procedures for
such calculations, selecting a random sample of approximately 50 Dilution
Adjustment memos from each Originator created during such period and determining
the weighted average Dilution Horizon therefrom) and the denominator of which is
30.
"Dilution Period" shall mean, as of any Settlement Report Date and
continuing until (but not including) the next Settlement Report Date, the
quotient of (i) the product of (A) the aggregate Principal Amount of Receivables
that were contributed by the Contributor to the Company (and thereafter a
Participation and security interest were granted by the Company to the Trust),
as applicable during the Settlement Period immediately preceding such earlier
Settlement Report Date and (B) the Dilution Horizon Factor as of such Settlement
Report Date and (ii) the Aggregate Receivables Amount as of the last day of the
Settlement Period immediately preceding such earlier Settlement Report Date.
"Dilution Ratio" shall mean, as of the last day of each Settlement
Period, an amount (expressed as a percentage) equal to the aggregate amount of
Dilution Adjustments made during such Settlement Period divided by the aggregate
Principal Amount of Receivables that were contributed by the Contributor to the
Company (and thereafter a Participation and security interest were granted by
the Company to the Trust) during the immediately preceding Settlement Period
(including the Settlement Period ended on such day).
"Disclosure Documents" shall have the meaning assigned to such term in
any subscription agreement.
"Discounted Percentage" shall mean (i) with respect to the calculation
of the Contribution Value attributed to the Receivables and other Receivable
Assets to be contributed by the Contributor to the Company, a percentage agreed
upon by the Contributor, and consented to by the Funding Agent (such consent not
to be unreasonably
Annex X-12
withheld) from time to time that reflects, among other factors, the historical
rate at which Receivables are charged-off in accordance with the Policies and
(ii) with respect to the calculation of the related Contribution Value or
Originator Purchase Price, a percentage agreed upon by the related Originator
and the Contributor and consented to by the Funding Agent (such consent not to
be unreasonably
withheld) from time to time that reflects, among other factors, the historical
rate at which Receivables are charged-off in accordance with the Policies of the
related Originator.
"Distribution Date" shall mean, (i) except as otherwise set forth in
the applicable Supplement and in clause (ii) hereof, the 15th day of the month,
or if such 15th day is not a Business Day, the next succeeding Business Day; and
(ii) with respect to any payments with respect to interest and principal in
connection with the Series 2000-1 VFC Certificate, the maturity date of any
Series 2000-1 Eurodollar Tranche, Series 2000-1 CP Tranche or Series 2000-1
Floating Tranche.
"Dollars", "United States Dollars", "U.S. Dollars" and "$" shall mean
dollars in lawful currency of the United States of America.
"Dutch Originator" shall mean (i) Huntsman ICI Holland BV and (ii)
after the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date, any Approved Originator incorporated in
the Netherlands.
"Dutch Receivables" shall mean the Receivables originated by the Dutch
Originator and sold to Huntsman International, then contributed, transferred,
assigned and conveyed to the Company with respect to which a Participation and
security interest were granted by the Company to the Trust.
"Dutch Receivables Purchase Agreement" means the Dutch Receivables
Purchase Agreement dated as of December 21, 2000 between Huntsman ICI Holland
BV, as seller, and Huntsman International, as purchaser, as amended,
supplemented or otherwise modified from time to time in accordance with the
Transaction Documents.
"Early Amortization Event" shall have, with respect to any Series, the
meaning assigned in Section 7.01 of the Pooling Agreement (without taking into
account any Supplements) and in any Supplement for such Series.
"Early Amortization Period" shall have, with respect to any Series,
the definition assigned to such term in Section 7.01 of the Pooling Agreement
(without taking into account any Supplements) and in any Supplement for such
Series.
"Early Originator Termination" shall have the meaning assigned in
Section 7.01 of the applicable Origination Agreement.
"Early Program Termination" shall have the meaning assigned in Section
7.02 of the applicable Origination Agreement.
"ECI Holder" shall mean any holder of an Exchangeable Company
Interest, but only to the extent of such Exchangeable Company Interest.
Annex X-13
"Effective Date" shall mean December 21, 2000.
"Eligible Assignee" shall mean the Series 2000-1 APA Banks, and with
respect to any Series 2000-1 Purchaser, any Person that (A) is a Conduit
Assignee; or (B) (i) is a financial institution formed under the laws of any
OECD Country provided that such Person, if not a financial institution organized
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under the laws of the United States, is acting through a branch or agency
located in the United States; (ii) has a short-term debt rating of at least "A-
1" from S&P, and "P-1" from ▇▇▇▇▇'▇; and (iii) except as to the Series 2000-1
APA Banks which in any event shall be an Eligible Assignee, is reasonably
acceptable to the Company.
"Eligible Institution" shall mean (a) with respect to accounts in the
United States a depositary institution or trust company (which may include the
Trustee and its Affiliates) organized under the laws of the United States of
America or any one of the States thereof or the District of Columbia; provided,
--------
however, that at all times (i) such depositary institution or trust company is a
-------
member of the Federal Deposit Insurance Corporation, (ii) the unsecured and
uncollateralized debt obligations of such depositary institution or trust
company are rated in one of the two highest long-term or short-term rating
categories by each Rating Agency and (iii) such depositary institution or trust
company has a combined capital and surplus of at least $100,000,000 and (b) with
respect to accounts outside the United States an entity authorized to accept
deposits in the relevant jurisdiction which has unsecured and uncollateralized
debt obligations rated in one of the two highest long-term or short-term rating
categories by each Rating Agency.
"Eligible Investments" shall mean any book-entry securities,
negotiable instruments or securities represented by instruments in bearer or
registered form which evidence:
(a) direct obligations of, or obligations fully guaranteed as to
timely payment by, the United States of America or any OECD
Country;
(b) federal funds, demand deposits, time deposits or certificates of
deposit of any depositary institution or trust company
incorporated under the laws of the United States of America, any
state thereof (or any domestic branch of a foreign bank) or any
OECD Country and subject to supervision and examination by
federal, state or foreign banking or depositary institution
authorities; provided, however, that at the time of the
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investment or contractual commitment to invest therein the
commercial paper or other short-term unsecured debt obligations
(other than such obligations the rating of which is based on the
credit of a Person other than such depository institution or
trust company) thereof shall have a credit rating from each of
the Rating Agencies rating such investment in the highest
investment category granted thereby;
Annex X-14
(c) commercial paper rated, at the time of the investment or
contractual commitment to invest therein, in the highest rating
category by each Rating Agency rating such commercial paper;
(d) investments in money market funds (including funds for which the
Trustee or any of its Affiliates is investment manager or
adviser) rated in the highest rating category by each Rating
Agency rating such money market fund (provided that, if such
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Rating Agency is S&P, such rating shall be "AAA");
(e) bankers acceptances issued by any depository institution or trust
company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States
of America, any OECD Country or any agency or instrumentality
thereof the obligations of which are backed by the full faith and
credit of the United States of America or such OECD Country, in
either case entered into with a depository institution or trust
company (acting as principal) described in clause (b) above; or
(g) any other investment upon satisfaction of the Rating Agency
Condition with respect thereto;
provided that "Eligible Investments" shall exclude any obligations
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which are
(i) issued by the United Kingdom government or by any governmental
entity or body (whether local or national) of the United Kingdom;
(ii) issued by a company resident in the United Kingdom (or by any
other body of persons having its main seat of business in the
United Kingdom);
(iii) issued by a company (or other body of persons) through a branch
situated in the United Kingdom or for the purposes of a business
carried on in the United Kingdom;
(iv) secured on assets situated in the United Kingdom; or
(v) represented by instruments in bearer form which instruments are
at any time physically situated in the United Kingdom; or
(vi) represented by instruments in registered form which are
registered in a register kept in the United Kingdom.
Annex X-15
"Eligible Obligor" shall mean, as of any date of determination, each
Obligor in respect of a Receivable that satisfies the following eligibility
criteria:
(a) it is located in an Approved Obligor Country;
(b) it is not Huntsman International LLC LLC or an Affiliate thereof;
and
(c) it is not the subject of any voluntary or involuntary bankruptcy
proceeding.
"Eligible Receivable" shall mean, as of any date of determination,
each Receivable owing by an Eligible Obligor that as of such date satisfies the
following eligibility criteria:
(a) it is not a Defaulted Receivable;
(b) the goods related to it shall have been shipped and the services
related to it shall have been performed and such Receivable shall
have been billed to the related Obligor;
(c) it arose in the ordinary course of business from the sale of
goods, products and/or services by the related Originator and in
accordance with the Policies of such Originator and, at such date
of determination, the related Origination Agreement has not been
terminated as to such Originator;
(d) it does not contravene any applicable law, rule or regulation and
the related Originator is not in violation of any law, rule or
regulation in connection with it, in each case which in any way
would render such Receivable unenforceable or would otherwise
impair in any material respect the collectibility of such
Receivable;
(e) it is not a Receivable for which an Originator has established a
specific offsetting reserve; provided that a Receivable subject
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only in part to the foregoing shall be an Eligible Receivable to
the extent not so subject;
(f) it is not a Receivable with original payment terms in excess of
120 days from the first day of the month following the month in
which an invoice was created ("Net Terms"); provided that
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receivables related to Arch Chemical (or its successors or
assigns) may have Net Terms of 180 days; and provided further
that a receivable may have Net Terms greater than 120 days if the
Rating Agency Condition is satisfied and each Funding Agent has
consented thereto;
Annex X-16
(g) the related Originator or Obligor is not in default in any
material respect under the terms of the Contract, if any, from
which such Receivable arose;
(h) all right, title and interest in such Receivable has been legally
and validly sold to the Contributor by each Originator and
contributed by Huntsman International to the Company pursuant to
the related Origination Agreement;
(i) (i) the Company will either have legal and beneficial ownership
therein or a continuing first priority perfected security
interest therein free and clear of all Liens other than Permitted
Liens and Trustee Liens and (ii) such Receivable has been the
subject of a grant of a Participation and security interest by
the Company to the Trust and the subject of the grant of a
continuing first priority perfected security interest therein
from the Company to the Trust free and clear of all Liens other
than such Permitted Liens and Trustee Liens;
(j) the Contract related to such Receivables (i) expressly prohibits
any offset, counterclaim, or defense with respect to such
Receivables or (ii) does not contain such prohibition but (x) the
Obligor with respect to such Receivables is not a purchaser of
goods or services supplied by the Originator of such Receivables
or (y) the Aggregate Receivables Amount has been reduced by the
Potential Offset Amount;
(k) it is at all times the legal, valid and binding obligation of the
Obligor thereon, enforceable against such Obligor in accordance
with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors rights
generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or law);
(l) as of the date of contribution or sale, as the case may be, of
such Receivable, neither of the Company nor any Originator has
(i) taken any action in contravention of the terms of any
Transaction Document that would impair the rights of the Trustee
or the Investor Certificateholders therein or (ii) failed to take
any action required to be taken by the terms of any Transaction
Document that was necessary to avoid impairing the rights therein
of the Trustee or Investor Certificateholders with respect to
such Receivables;
(m) as of the date of purchase of such Receivable, each of the
representations and warranties made in the Origination
Annex X-17
Agreements by the related Originator with respect to such
Receivable is true and correct in all material respects;
(n) at the time such Receivable was contributed by the Contributor to
the Company under the Contribution Agreement, no Insolvency Event
had occurred with respect to the Contributor or the Company;
(o) the governing law of the related Contract is the law of an
Approved Contract Jurisdiction;
(p) it is not subject to any withholding taxes of any applicable
jurisdiction or political subdivision and is assignable free and
clear of any sales or other tax, impost or levy;
(q) the Obligor of which is not a Government Obligor;
(r) either (i) the Contract related to such Receivable does not
expressly prohibit, or require consent to be obtained from the
related Obligor in connection with, a sale, transfer, assignment
or conveyance of such Receivable, (ii) if such consent is
required the related Obligor has consented in writing in
accordance with the terms of the Contract and applicable laws or
(iii) the Contract related to such Receivable is governed by the
laws of a State of the United States, the assignment thereof is
subject to Section 9-318(4) of the UCC (or similar applicable
provision) of such State which permits the effective assignment
of such Receivable and the related rights under such Contract
against the Obligor of such Receivable notwithstanding the
failure of the assignor to obtain the consent of the Obligor in
connection with such assignment;
(s) it is denominated and payable only in an Approved Currency;
(t) the Obligor of which has not defaulted on any payment obligation
to an Originator at any time during the three year period
preceding the contribution or sale of such Receivable to the
Company, other than any payments which the Obligor has disputed
in good faith;
(u) either the Trust is excluded from the definition of "investment
company" pursuant to Rule 3a-7 under the 1940 Act, or such
Receivable is an account receivable representing all or part of
the sales price of merchandise, insurance or services within the
meaning of Section 3(c)(5) of the 1940 Act;
(v) all required consents, approvals, authorizations or notifications
necessary for the creation and enforceability of such Receivable
and the effective contribution by the Contributor to the Company
and grant of a Participation and grant of a security interest by
the
Annex X-18
Company to the Trust shall have been obtained or made with
respect to such Receivable;
(w) constitutes an account (and not an "instrument" or "chattel
paper" unless such "instrument" or "chattel paper" has been
stamped in the manner set forth in Section 2.01(b) of the Pooling
Agreement) within the meaning of Section 9-106 of the UCC that
governs the perfection of the interest granted therein);
(x) no Originator Termination Event has occurred with respect to the
Originator of such Receivable; and
(y) the Company is named as loss payee in a certificate of insurance
issued in respect of such Receivable pursuant to the Marine
Insurance Policy (where applicable).
"Enhancement" shall mean, with respect to any Series, (i) the funds on
deposit in or credited to any bank account (or subaccount thereof) of the Trust,
(ii) any surety arrangement, any letter of credit, guaranteed rate agreement,
maturity guaranty facility, tax protection agreement, interest rate swap,
currency swap or other contract, agreement or arrangement, in each case for the
benefit of any Investor Certificateholders of such Series, as designated in the
applicable Supplement and (iii) the subordination of one Class of Investor
Certificates in a Series to another Class in such Series or the subordination of
any Interest to the Investor Certificates of such Series.
"ERISA" shall mean the United States Employee Retirement Income
Security Act of 1974, as amended.
"ERISA Affiliate" shall mean, with respect to any Person, any trade or
business (whether or not incorporated) that is a member of a group of which such
Person is a member and which is treated as a single employer under Section 414
of the Code.
"Euro" shall mean the legal currency of the member states of the
European Union that adopt the single currency in accordance with the European
Community Treaty.
"Euroclear" shall mean ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
"Eurodollar Rate" shall mean, with respect to any Series 2000-1
Eurodollar Period, a rate per annum equal to the sum (rounded upwards, if
necessary, to the next higher 1/16 of 1%) of (A) the rate obtained by dividing
(i) the applicable LIBOR Rate by (ii) a percentage equal to 100% minus the
reserve percentage used for determining the maximum reserve requirement as
specified in Regulation D of the Board of Governors of the Federal Reserve
System (including, without limitation, any marginal, emergency, supplemental,
special or other reserves) that is applicable to the Funding Agent during such
Series 2000-1 Eurodollar Period in respect of eurocurrency or eurodollar
funding, lending or liabilities (or, if more than one percentage shall be so
Annex X-19
applicable, the daily average of such percentage for those days in such Series
2000-1 Eurodollar Period during which any such percentage shall be applicable)
plus (B) the then daily net annual assessment rate (rounded upwards, if
necessary, to the nearest 1/16 of 1%) as estimated by the Funding Agent for
determining the current annual assessment payable by the Funding Agent to the
Federal Deposit Insurance Corporation in respect of eurocurrency or eurodollar
funding, lending or liabilities.
"European Originators" shall mean (i) Huntsman ICI Holland BV, Tioxide
Europe Ltd. and Huntsman Petrochemicals (UK) Limited and (ii) after the Series
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date, any originator which may be added pursuant to, and in
accordance with, the provisions of Section 2.09 of the Pooling Agreement.
"European Receivables Purchase Agreements" shall mean, collectively,
the Dutch Receivables Purchase Agreement and the U.K. Receivables Purchase
Agreement.
"Exchange Date" shall have the meaning, with respect to any Series
issued pursuant to a Company Exchange, assigned in subsection 5.11(a) of the
Pooling Agreement.
"Exchange Notice" shall have the meaning, with respect to any Series
issued pursuant to a Company Exchange, assigned in subsection 5.11(a) of the
Pooling Agreement.
"Exchange Register" shall have the meaning assigned in subsection
5.10(a) of the Pooling Agreement.
"Exchangeable Company Interests" shall mean the Company's exclusive
beneficial ownership interest in the Participation Assets subject to any
security interests granted by the Company under the Pooling Agreement.
"Excluded Receivable" shall mean each Receivable participated to the
Trust by the Company and/or a Participation in which has been granted, which is
not an Eligible Receivable as of the relevant Receivables Purchase Date and
which is identified on the Originator Daily Report and Daily Report as an
Excluded Receivable.
"Execution Date" shall mean the date of execution of the UK
Receivables Purchase Agreement and the Contribution Agreement, which shall be at
least one Business Day prior to the Effective Date.
"Exempt Purchaser" shall have the meaning assigned to such term in the
Subscription Agreement.
"Existing Relevant Document" shall mean a Relevant Document which is
already in existence and relating to Receivables which have already been made
the subject of a Participation granted to the Trust by the Company.
Annex X-20
"Face Amount" shall have the meaning assigned to such term in the
Asset Purchase Agreement.
"Federal Funds Effective Rate" shall mean, for any day, an interest
rate per annum equal to (a) the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, (b) if such rate is not so published
for any day which is a Business Day, the average of the quotations at
approximately 11:00 a.m. New York Time on such day on such transactions received
by the Funding Agent from three (3) Federal funds brokers of recognized standing
selected by it in its sole discretion.
"Fee Letter" shall mean the Fee Letter, dated as of the date hereof,
among the Company, the Funding Agent and the Series 2000-1 Initial Purchaser.
"Final Offering Circular" shall mean the final offering circular which
shall have been prepared or approved by Huntsman International and the Company
together with any amendments or supplements thereto, which describes, among
other things, the Series 2000-2 Term Certificates, the proposed use of proceeds
from the sale of the Series 2000-2 Term Certificates, the business of Huntsman
International, and the Company, the Participation Assets and due restrictions on
resale and transfer of the Series 2000-2 Term Certificates.
"Fiscal Period" shall have the meaning assigned to such term in the
Servicing Agreement.
"Force Majeure Delay" shall mean, with respect to the Master Servicer
or any agent thereof, any cause or event which is beyond the control and not due
to the negligence of the Master Servicer or such agent which delays, prevents or
prohibits the Master Servicer's delivery of Daily Reports and/or Monthly
Settlement Reports, including, without limitation, acts of God, or the elements
and fire, but shall not include strikes; provided that no such cause or event
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shall be deemed to be a Force Majeure Delay unless the Master Servicer shall
have given the Company, the Trustee and each Funding Agent written notice
thereof as soon as reasonably possible after the beginning of such delay.
"Foreign Clearing Agency" shall mean each of Clearstream and
Euroclear.
"Foreign Government Obligor" shall mean any government of a nation or
territory outside the United States or any subdivision thereof or any agency,
department or instrumentality thereof.
"Forward Rate" shall mean the forward exchange rate of the applicable
maturity indicated by the FX Counterparty or the Trustee, for currency exchange
into United States Dollars of the Pound Sterling, the Euro and any additional
Approved Currency.
Annex X-21
"Fractional Undivided Interest" shall mean a fractional undivided
interest, which, with respect to any Investor Certificate, can be expressed as a
percentage of the interest in the Participation Assets represented by the Series
or Class in which it was issued by taking the percentage equivalent of a
fraction the numerator of which is the principal amount of such Investor
Certificate and the denominator of which is the aggregate principal amount of
all Investor Certificates of such Series or Class.
"Funding Agent" shall mean, with respect to any Series, the Person, if
any, so designated in the related Supplement.
"Funding Account" shall have the meaning assigned in subsection
2.04(a) of the Series 2000-1 Asset Purchase Agreement.
"Funding Amount" shall mean, with respect to any Series, the amount so
designated in the Asset Purchase Agreement.
"FX Counterparty" shall mean (i) on the Effective Date, The Chase
Manhattan Bank; and (ii) thereafter any FX counterparty or counterparties in any
FX Hedging Agreement, which has a short-term unsecured rating of at least "A-1"
by S&P and "P-1" by ▇▇▇▇▇'▇ and that is located outside the United Kingdom.
"FX Hedging Agreements" shall mean each hedging agreement entered into
by the Trustee and the FX Counterparty for the purpose of managing currency risk
whether by way of forward exchange, cap, dollar, swap, forward rate agreement or
otherwise.
"GAAP" shall mean generally accepted accounting principles in the
respective jurisdiction of incorporation of the relevant entity, as in effect
from time to time.
"General Opinion" shall mean, with respect to any action, an Opinion
of Counsel to the effect that (i) such action has been duly authorized by all
necessary corporate action on the part of the Master Servicer, the Company or an
Originator, as the case may be, (ii) any agreement executed in connection with
such action constitutes a legal, valid and binding obligation of the Master
Servicer, the Company or an Originator, as the case may be, enforceable against
such party in accordance with the terms thereof, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereinafter in effect, affecting the enforcement of
creditors' rights and except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or in equity or
subject to similar exceptions), (iii) such action does not violate any
organization documents or require any consent or filing thereunder, (iv) such
action does not result in a breach of, or default under any material contractual
obligation, or creation of any Lien, pursuant thereto and (v) any condition
precedent to any such action specified in the applicable agreement, if any, has
been complied with.
"General Reserve Account" shall have the meaning assigned to such term
in Section 3.01(a) of the Pooling Agreement.
Annex X-22
"Governmental Authority" shall mean any nation or government, any
State or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guaranteed Obligations" shall mean the obligations of the Master
Servicer as set forth under Article VII of the Servicing Agreement.
"Government Obligor" shall mean any U.S. Government Obligor, any U.S.
State/Local Government Obligor or Foreign Government Obligor.
"Holders" shall mean any or all of the Investor Certificateholders,
the holders of Subordinated Company Interests and the holder of the Exchangeable
Company Interests.
"Huntsman BV" shall mean Huntsman ICI Holland BV, a limited liability
company organized under the laws of The Netherlands and its successors and
permitted assigns.
"Huntsman Europe" shall mean Tioxide Europe Ltd., a corporation
organized under the laws of England and Wales and its successors and permitted
assigns.
"Huntsman International" shall mean Huntsman International LLC, a
limited liability company organized under the laws of the State of Delaware and
its successors and permitted assigns.
"Huntsman Group" means Huntsman International and its Subsidiaries.
"Huntsman Propylene" means Huntsman Propylene Oxide Ltd., a limited
partnership organized under the laws of Texas.
"Huntsman (UK)" shall mean Huntsman (Petrochemicals) UK Limited, a
corporation organized under the laws of England and Wales and its successors and
permitted assigns.
"Indebtedness" shall mean, with respect to any Person at any date, (i)
all indebtedness of such Person for borrowed money, (ii) any obligation owed for
the deferred purchase price of property or services which purchase price is
evidenced by a note or similar written instrument, (iii) note payable and drafts
accepted representing extensions of credit whether or not representing
obligations for borrowed money, (iv) that portion of obligations of such Person
under capital leases which is properly classified as a liability on a balance
sheet in conformity with GAAP and (v) all liabilities of the type described in
the foregoing clauses (i) through (iv) secured by any Lien (other than Permitted
Liens and Liens on Receivables that are not Receivables) on any property owned
by such Person even though such Person has not assumed or otherwise become
liable for the payment thereof.
Annex X-23
"Indemnified Person" shall have the meaning assigned to such term in
Section 10.18 of the Pooling Agreement or Section 8(a) of the Subscription
Agreement, as applicable.
"Indemnifying Person" shall have the meaning assigned to such term in
the Subscription Agreement.
"Independent Public Accountants" shall mean, with respect to any
Person, any independent certified public accountants of nationally recognized
standing, or any successor thereto, (who may also render other services to the
Company, the Master Servicer or an Originator); provided that such firm is
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independent with respect to such Person within the meaning of Rule 2-01(b) of
Regulation S-X under the Securities Act.
"Ineligibility Determination Date" shall have the meaning assigned in
subsection 2.05(a) of the Pooling Agreement.
"Ineligible Receivable" shall, (i) as used in the Origination
Agreements, have the meaning specified in each Origination Agreement, and (ii)
as used in all other Transaction Documents, have the meaning specified in
subsection 2.05(a) of the Pooling Agreement.
"Information" shall have the meaning specified in Exhibit G to the
Series 2000-1 Supplement.
"Initial Contribution" shall mean the first contribution (if any) of
Receivables and Receivables Assets related thereto, made pursuant to section
2.01 of the Contribution Agreement.
"Initial Contribution Date" shall mean the date on which the Initial
Contribution is made.
"Initial Invested Amount" means (a) in respect of the Series 2000-1,
the Series 2000-1 Initial Invested Amount, (b) in respect of the Series 2000-2,
the Series 2000-2 Initial Invested Amount, and, in respect of any other Series,
any other amount identified as the "Initial Investment Amount" for such Series
in the Supplement for such Series.
"Inland Revenue" shall mean the United Kingdom Inland Revenue Service.
"Insolvency Event" shall mean, with respect to any Person, (i) a court
having jurisdiction shall enter a decree or order for relief in respect of such
Person in an involuntary case under Applicable Insolvency Laws, which decree or
order is not stayed or any other similar relief shall be granted under any
applicable federal, state or foreign law now or hereafter in effect and shall
not be stayed; (ii)(A) an involuntary case is commenced against such Person
under any Applicable Insolvency Law now or hereafter in effect, a decree or
order of a court having jurisdiction for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer having similar
powers
Annex X-24
over such Person, or over all or a substantial part of the property of such
Person, shall have been entered, an interim receiver, trustee or other custodian
of such Person for all or a substantial part of the property of such Person is
involuntarily appointed, a warrant of attachment, execution or similar process
is issued against any substantial part of the property of such Person, and (B)
any event referred to in clause (ii)(A) above continues for 60 days unless
dismissed, bonded or discharged; (iii) such Person shall at its request have a
decree or an order for relief entered with respect to it or commence a voluntary
case under any Applicable Insolvency Law now or hereafter in effect, or shall
consent to the entry of a decree or an order for relief in an involuntary case,
or to the conversion of an involuntary case to a voluntary case, under any such
Applicable Insolvency Law, consent to the appointment of or taking possession by
a receiver, trustee or other custodian for all or a substantial part of its
property; (iv) the making by such Person of any general assignment for the
benefit of creditors; (v) the inability or failure of such Person generally to
pay its debts as such debts become due; or (vi) the Board of Directors of such
Person authorizes action to approve any of the foregoing.
"Institutional Accredited Investor" shall mean an institutional
accredited investor, within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act.
"Interest" shall mean any interest in the Participation Assets issued
pursuant to the Pooling Agreement or any Supplement.
"International Fuels" shall mean Huntsman International Fuels L.P., a
limited partnership organized under the laws of Texas.
"Invested Amount" shall, with respect to any Series be determined on
the issuance date with respect to such Series.
"Invested Percentage" shall, with respect to any Series, be determined
on the issuance date with respect to such Series.
"Investment" shall mean the making by the Company of any advance,
loan, extension of credit or capital contribution to, the purchase of any stock,
bonds, notes, debentures or other securities of or any assets constituting a
business unit of, or the making by the Company of any other investment in, any
Person.
"Investment Earnings" shall have the meaning assigned in subsection
3.01(c) of the Pooling Agreement.
"Investor Certificateholder" shall mean the holder of record of, or
the bearer of, any Investor Certificates. On the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date
the Investor Certificateholder shall be PARCO and thereafter will be the holder
of record of, or the bearer of, any Investor Certificate issued with respect to
a particular Series.
"Investor Certificateholders' Interest" shall have the meaning
assigned in subsection 3.01(b) of the Pooling Agreement.
Annex X-25
"Investor Certificates" shall mean the Certificates executed by the
Trustee and authenticated by or on behalf of the Trustee, substantially in the
form attached to the applicable Supplement, but shall not include the
Exchangeable Company Interests, the Subordinated Company Interests or any other
Interests held by the Company.
"Issuance Date" shall mean, with respect to any Series, the date of
issuance of such Series, or the date of any increase to the Invested Amount of
such Series, as specified in the related Supplement.
"Junior Claims" shall mean any and all rights of the Company of any
kind in the Participation Assets (other than any rights of the Company in the
Participation Assets with respect to the Exchangeable Company Interests, if
any), including without limitation any right to receive any distribution
pursuant to the terms of any Supplement (other than any right of the Company to
receive any distribution with respect to the Exchangeable Company Interests, if
any).
"LIBOR Rate" shall mean, with respect to any Series 2000-1 Eurodollar
Period, the rate at which deposits in dollars are offered to the Funding Agent,
in the London interbank market at approximately 11:00 a.m. London time two (2)
Business Days before the first day of such Series 2000-1 Eurodollar Period in an
amount approximately equal to the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ to which the
Eurodollar Rate is to apply and for a period of time approximately equal to the
applicable Series 2000-1 Eurodollar Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, encumbrance, charge or security interest in or on such
asset and (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset;
provided, however, that if a lien is imposed under Section 412(n) of the Code or
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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, then such lien shall not be treated as a "Lien" from and after the time
(x)(i) any Person who is obligated to make such payment pays to such plan the
amount of such lien determined under Section 412(n)(3) of the Code or Section
302(f)(3) of ERISA, as the case may be, and provides to the Trustee, the Rating
Agencies and any Funding Agent a written statement of the amount of such lien
together with written evidence of payment of such amount, or (ii) such lien
expires pursuant to Section 412(n)(4)(B) of the Code or Section 302(f)(4)(B) of
ERISA and (y) the Rating Agency Condition shall have been satisfied.
"Lien Creation" shall mean the creation, incidence, assumption or
suffering to exist by the Company or an Originator of any Lien upon the
Receivables, Related Property or the proceeds thereof.
"Limited Liability Company Agreement" shall mean the Limited Liability
Company Agreement dated as of October 10, 2000, between the Contributor, as
Shareholder and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as the Special Member.
Annex X-26
"Liquidation Servicer" shall mean PricewaterhouseCoopers and its
successors and assigns.
"Liquidation Servicer Agreement" shall mean the letter agreement,
dated as of the Effective Date, between the Liquidation Servicer and the
Trustee.
"Liquidation Servicer Commencement Date" shall mean the date that the
Trustee gives notice to activate the appointment of PricewaterhouseCoopers as
the Liquidation Servicer, which shall take effect within no less than five (5)
Business Days after the delivery of the Termination Notice by the Trustee to the
Master Servicer.
"Liquidation Servicing Fee" shall mean the fee payable to the
Liquidation Servicer as set forth in the Liquidation Servicer Agreement.
"Liquidity Fee Letter" shall have the meaning set forth in the Series
2000-1 Asset Purchase Agreement.
"Local Business Day" shall mean, with respect to any Originator, any
day other than (i) a Saturday or a Sunday and (ii) any other day on which
commercial banking institutions or trust companies in the jurisdiction in which
such Originator has its principal place of business, are authorized or obligated
by law, executive order or governmental decree to be closed as set forth in
Schedule 4 to the Pooling Agreement.
"Local Servicer" shall have the meaning assigned to such term
subsection 2.02(a) of the Servicing Agreement.
"Luxembourg Paying Agent" shall mean any Person authorized by the
Trustee to act as the Luxembourg Paying Agent for the Series 2000-2 Term
Certificates until a successor Luxembourg Paying Agent shall have become such
pursuant to the applicable provisions of the Pooling Agreement, and thereafter
"Luxembourg Paying Agent" shall mean such Luxembourg Paying Agent. Pursuant to
the terms of the Pooling Agreement, the Trustee has initially appointed Chase
Manhattan Bank Luxembourg S.A. as the Luxembourg Paying Agent.
"Manager" shall mean Global Securitization Services, L.L.C., a
Delaware limited liability company, as manager on behalf of PARCO, and its
successors and assigns in such capacity.
"Margin Stock" shall have the meaning given to such term in Regulation
U of the Board.
"Marine Insurance Policy" shall mean the policy number OMC 879 issued
by Liberty Insurance Underwriters Inc. in favor of, amongst others, Huntsman
Corporation.
"Master Collection Accounts" shall have the meaning assigned to such
term in Section 2.09 of the Contribution Agreement.
Annex X-27
"Master Servicer" shall mean Huntsman (Europe) BVBA, and any Successor
Master Servicer under the Servicing Agreement.
"Master Servicer Default" shall have, with respect to any Series, the
meaning assigned to such term in Section 6.01 of the Servicing Agreement and, if
applicable, as supplemented by the related Supplement for such Series.
"Master Servicer Indemnification Event" shall have the meaning
assigned to such term in subsection 5.02(b) of the Servicing Agreement.
"Master Servicer Indemnified Person" shall have the meaning assigned
to such term in subsection 5.02(a) of the Servicing Agreement.
"Master Servicer Site Review" shall mean a review performed by the
Liquidation Servicer of the servicing operations of the Master Servicer's
central site location.
"Material Adverse Effect" shall mean, if used with respect to a
Person, (a) a material impairment of the ability of such Person to perform its
obligations under the Transaction Documents, (b) a materially adverse effect on
the business, operations, property or condition (financial or otherwise) of such
Person, (c) a material impairment of the validity or enforceability of any of
the Transaction Documents against such Person, (d) a material impairment of the
collectibility of the Eligible Receivables taken as a whole and (e) a material
impairment of the interests, rights or remedies of the Trustee or the Investor
Certificateholders of any Outstanding Series under or with respect to the
Transaction Documents or the Eligible Receivables taken as a whole.
"Monthly Servicing Fee" shall have the meaning assigned to such term
in subsection 2.05(a) of the Servicing Agreement.
"Monthly Settlement Report" shall mean a report prepared by the Master
Servicer for each Settlement Period pursuant to Section 4.02 of the Servicing
Agreement, in substantially the form of Exhibit C to the Pooling Agreement.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. or its succesors
and assigns.
"Multiemployer Plan" shall mean, with respect to any Person, a
multiemployer plan as defined in Section 4001(a)(3) of ERISA to which such
Person or any ERISA Affiliate of such Person (other than one considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Section 414 of the Code) is
making or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make contributions.
"Obligor" shall mean, with respect to any Receivable, the party
obligated to make payments with respect to such Receivable, including any
guarantor thereof.
Annex X-28
"Obligor Limit" shall mean the amount set forth in the Receivables
Specification and Exception Schedule attached to the Pooling Agreement as
Schedule 4 under the heading "Obligor Limit" which shall represent, at any date,
with respect to an Eligible Obligor, the percentage of the Principal Amount of
all Eligible Receivables in the Trust at such date which are due from such
Eligible Obligor for the applicable ratings category of long-term senior debt of
that Obligor, or if such Obligor is unrated and is a wholly-owned Subsidiary,
then the applicable ratings category of long-term senior debt of such Obligor's
parent (or such higher percentage upon satisfaction of the Rating Agency
Condition); provided that if in relation to any Special Obligor, such Special
--------
Obligor's Special Obligor Delinquency Ratio has exceeded 8% as reported on the
most recent Monthly Settlement Report, the Obligor Limit for such Special
Obligor shall become 8% and such Obligor Limit shall remain at 8% for at least
three (3) next succeeding Settlement Periods, following which the limit for such
Special Obligor will revert to the Obligor Limit as indicated in Schedule 4
attached to the Pooling Agreement, provided that the Special Obligor Delinquency
--------
Ratio for such Special Obligor has not exceeded 8% in the last three (3)
preceding Settlement Periods (including the Settlement Period ended on such
date); provided, however, for purposes of this definition that all Eligible
-------- -------
Obligors that are Affiliates of each other shall be deemed to be a single
Eligible Obligor to the extent the Master Servicer has actual knowledge of the
affiliation and in that case, the applicable debt rating for such group of
Obligors shall be the debt rating of the ultimate parent of the group.
If the ratings given by S&P and Moody's to the long-term senior debt
of any Obligor (or the ultimate parent of the Obligor or the affiliated group of
which such Obligor is a member, as the case may be) would result in different
applicable percentages under Schedule 3 to the Pooling Agreement, the applicable
percentage shall be the percentage associated with the lower rating, as between
S&P's rating and ▇▇▇▇▇'▇ rating, of such Obligor's (or such ultimate parent's,
as the case may be) long-term senior debt; provided that: (i) if an Obligor (or
--------
such ultimate parent, as the case may be) is not rated by one of the Rating
Agencies, then such Obligor (or the ultimate parent, as the case may be) shall
be deemed to be unrated unless the Rating Agency that does not rate the Obligor
consents to the application of the rating given the Obligor by the Rating Agency
that does give such a rating and (ii) if an Obligor (or such ultimate parent, as
the case may) does not have a long-term senior debt rating from either of the
Rating Agencies, but has a short-term senior debt rating, then the applicable
percentage shall be the percentage associated with the long-term senior debt
ratings that are equivalent to such short-term senior debt ratings as set forth
in the table set forth in the Receivables Specification and Exception Schedule
attached to the Pooling Agreement as Schedule 4 under the heading "Obligor
Limit". The ratings specified in the table are minimums for each percentage
category, so that a rating not shown in the table falls in the category
associated with the highest rating shown in the table that is lower than that
rating.
"OECD Country" shall mean a country that is a member of the grouping
of countries that are full members of the Organization of Economic Cooperation
and Development.
Annex X-29
"Offer Letter" shall have the meaning assigned to such term in the UK
Receivables Purchase Agreement.
"One-Month LIBOR" shall mean, for any Accrual Period, the rate per
annum, as determined by the Trustee, which is the arithmetic mean (rounded to
the nearest 1/100th of 1%) of the offered rates for U.S. Dollar deposits having
a maturity of one month commencing on the first day of such Accrual Period that
appears on Page 3750 of the Telerate System Incorporated Service (or on any
successor or substitute page of such service, or any successor to or substitute
for such service, providing rate quotations comparable to those currently
provided on such page of the Telerate System Incorporated Service, as determined
by the Trustee for purposes of providing interest rates applicable to U.S.
Dollar deposits having a maturity of one month in the London interbank market)
at approximately 11:00 a.m. London time, two Business Days prior to the
commencement of such Accrual Period. In the event that such rate is not so
available at such time for any reason, then "One-Month LIBOR" for such Accrual
Period shall be the rate at which U.S. Dollar deposits in a principal amount of
not less than $1,000,000 maturing in one month are offered to the principal
London office of the Trustee in immediately available funds in the London
interbank market at approximately 11:00 a.m. London time, two Business Days
prior to the commencement of such Accrual Period.
"Opinion of Counsel" shall mean a written opinion or opinions of one
or more counsel (who, unless otherwise specified in the Transaction Documents,
may be internal counsel to the Company, the Master Servicer or an Originator)
designated by the Company, the Master Servicer or an Originator, as the case may
be, that is reasonably acceptable to the Trustee and the Funding Agent.
"Optional Repurchase Percentage" shall have, with respect to any
Series, the meaning assigned to such term in the related Supplement for such
Series.
"Optional Termination Notice" shall have, with respect to any Series,
the meaning, if any, assigned in the related Supplement for such Series.
"Original Principal Amount" shall mean, with respect to any
Receivable, the Principal Amount of such Receivable as of the date on which such
Receivable is contributed, sold or otherwise conveyed to the Contributor or the
Company, as the case may be, under the applicable Origination Agreement.
"Origination Agreements" shall mean (i) on the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇
Date, the Contribution Agreement and the Receivables Purchase Agreements; and
(ii) after the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date, any contribution agreement or
receivables purchase agreements entered into by the Company and any Additional
Originator.
"Originator" means any Approved Originator.
"Originator Addition Date" shall have the meaning assigned to such
term in Section 3.05 of the Receivables Purchase Agreement.
Annex X-30
"Originator Adjustment Payment" shall have the meaning assigned to
such term in subsection 2.06(a) of the Origination Agreements.
"Originator Adjustment Payment" shall have the meaning assigned to
such term in subsection 2.06(a) of the Origination Agreements.
"Originator Daily Report" shall mean a report prepared by an
Originator on each date of contribution or sale, as the case may be, of
Receivables to the Company pursuant to and in accordance with the applicable
Origination Agreement, substantially in the form of Exhibit B to the Pooling
Agreement which shall not in any event be signed by any party.
"Originator Dilution Adjustment Payment" shall have the meaning
assigned to such term in subsection 2.05 of the Receivables Purchase Agreements.
"Originator Documents" shall have the meaning assigned to such term in
subsection 7.03(b)(iii) of the Origination Agreements.
"Originator Indemnification Event" shall have the meaning assigned to
such term in subsection 2.06(b) of the Origination Agreements.
"Originator Indemnification Payment" shall have the meaning assigned
to such term in subsection 2.06(b) of the Origination Agreements.
"Originator Indemnified Liabilities" shall have the meaning assigned
to such term in Section 8.02 of the Origination Agreement.
"Originator Payment Date" shall have the meaning assigned to such term
in subsection 2.03(a) of the U.K. Receivables Purchase Agreement, the Dutch
Receivables Purchase Agreement and the U.S. Receivables Purchase Agreement.
"Originator Purchase Price" shall have the meaning assigned to such
term in Section 2.02 of the U.K. Receivables Purchase Agreement, the Dutch
Receivables Purchase Agreement and the U.S. Receivables Purchase Agreement.
"Originator Termination Date" shall have the meaning assigned to such
term in Section 7.01 of the Origination Agreements.
"Originator Termination Event" shall have the meaning assigned to such
term in Section 7.01 of the Origination Agreements.
"Other Persons" shall have the meaning assigned to such term in
subsection 2.10(a) of the Series 2000-1 Supplement.
"Outstanding Amount Advanced" shall mean, on any date of
determination, the aggregate of all Servicer Advances remitted by the Master
Servicer out of its own funds pursuant to Section 2.06 of the Servicing
Agreement and Section 4A.04
Annex X-31
of the Pooling Agreement, less the aggregate of all related Servicer Advance
Reimbursement Amounts received by the Master Servicer.
"Outstanding Investor Certificates" shall mean, at any time, Investor
Certificates issued pursuant to an effective Supplement for which the Series
Termination Date has not occurred.
"Outstanding Series" shall mean, at any time, a Series issued pursuant
to an effective Supplement for which the Series Termination Date for such Series
has not occurred.
"PARCO" shall mean Park Avenue Receivables Corporation, a Delaware
corporation, and any successor thereto.
"PARCO Insolvency Event" shall have the meaning assigned such term in
the Series 2000-1 Asset Purchase Agreement.
"PARCO Interest" shall mean, on any date of determination, the Series
2000-1 Invested Amount less any interest therein transferred to the Series 2000-
1 APA Banks pursuant to Section 2.01 of the Series 2000-1 Asset Purchase
Agreement.
"PARCO Invested Amount" shall have the meaning assigned to such term
in the Series 2000-1 Asset Purchase Agreement.
"PARCO Termination Event" shall have the meaning assigned such term in
the Series 2000-1 Asset Purchase Agreement.
"Participation" shall have the meaning assigned to such term in
Section 2.01(a) of the Pooling Agreement.
"Participation Assets" shall have the meaning assigned to such term in
Section 2.01(a) of the Pooling Agreement.
"Participation Amount" shall have its meaning assigned to such term in
Section 2.01(a) of the Pooling Agreement.
"Paying Agency Agreement" shall mean the Paying Agency Agreement dated
as of December 21, 2000, between Huntsman International, Huntsman Receivable
Finance Corp., Chase and the Luxembourg Paying Agent.
"Paying Agent" shall mean any paying agent and co-paying agent
appointed pursuant to Section 5.07 of the Pooling Agreement and, unless
otherwise specified in the related Supplement of any Series and with respect to
such Series, shall initially be Chase.
"Payment Terms Factor" shall mean for each six-month period to occur
after the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date, a fraction calculated by the Master
Servicer, the numerator of which is the sum of (i) the weighted average payment
terms (based upon the
Annex X-32
Principal Amount of the Receivables and expressed as a number of days) for the
Receivables contributed by the Contributor to the Company, as the case may be,
(and a Participation and a security interest granted by the Company to the
Trust) during such period and (ii) 60, and the denominator of which is 90.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA and any Person succeeding to the
functions thereof.
"Permitted Liens" shall mean, at any time, for any Person:
(a) liens created pursuant to any Transaction Document;
(b) liens for taxes, assessments or other governmental charges or
levies (i) not yet due or (ii) with respect to which are being contested in
good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of such Person;
(c) liens of or resulting from any judgment or award, the time for the
appeal or petition for rehearing of which shall not have expired, or in
respect of which such Person shall at any time in good faith be prosecuting
an appeal or proceeding for a review and with respect to which adequate
reserves or other appropriate provisions are being maintained in accordance
with GAAP; and
(d) liens, charges or other encumbrances or priority claims incidental
to the conduct of business or the ownership of properties and assets
(including mechanics', carriers', repairers', warehousemen's and statutory
landlords' liens) and deposits, pledges or liens to secure statutory
obligations, surety or appeal bonds or other liens of like general nature
incurred in the ordinary course of business and not in connection with the
borrowing of money, provided in each case, the obligation secured is not
overdue, or, if overdue, is being contested in good faith by appropriate
actions or proceedings and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with GAAP.
"Person" shall mean any individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture,
limited liability company, Governmental Authority or other entity of whatever
nature.
"Placement Agent" shall have the meaning assigned to such term in the
Series 2000-1 Asset Purchase Agreement.
"Plan" shall mean, with respect to any Person, any pension plan (other
than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code which is maintained for employees of such Person or any
ERISA Affiliate of such Person.
Annex X-33
"Policies" shall mean the credit and collection policies of the
Approved Originators, a copy of any of which are in writing has been previously
delivered to the Trustee and the Funding Agent, prior to or on the Effective
Date, as the same may be amended, supplemented or otherwise modified from time
to time provided further that material changes to such Policies must be approved
by the Funding Agent.
"Pooling Agreement" shall mean the Pooling Agreement, dated as of
December 21, 2000, among the Company, the Master Servicer, the Servicer
Guarantor and the Trustee, as the same may be amended, supplemented or otherwise
modified from time to time, and including, unless expressly stated otherwise,
each Supplement.
"Pooling and Servicing Agreements" shall have the meaning assigned to
such term in subsection 10.01(a) of the Pooling Agreement.
"Potential Early Amortization Event" shall mean an event which, with
the giving of notice and/or the lapse of time, would constitute an Early
Amortization Event under the Pooling Agreement or under any Supplement.
"Potential Master Servicer Default" shall mean an event which, with
the giving of notice and/or the lapse of time, would constitute a Master
Servicer Default under the Servicing Agreement or any Supplement.
"Potential Offset Amount" shall mean an amount determined by the Local
Servicer and equal to the amount of any known potential offset, counterclaim, or
defense with respect to an Eligible Receivable, and further aggregated by the
Master Servicer for the purposes of calculating the Aggregate Receivable Amount.
"Potential Originator Termination Event" shall mean any condition or
act that, with the giving of notice or the lapse of time or both, would
constitute an Originator Termination Event
"Potential Program Termination Event" shall mean any condition or act
that, with the giving of notice or the lapse of time or both, would constitute a
Program Termination Event.
"Potential Series 2000-1 Early Amortization Event" shall mean an event
which, with the giving of notice and/or the lapse of time, would constitute a
Series 2000-1 Early Amortization Event.
"Potential Series 2000-2 Early Amortization Event" shall mean an event
which, with the giving of notice and/or the lapse of time, would constitute a
Series 2000-2 Early Amortization Event.
"Pound Sterling" shall mean the legal currency of the United Kingdom.
"Principal Amount" shall mean, with respect to any Receivable, the
unpaid principal amount due thereunder.
Annex X-34
"Principal Terms" shall have the meaning, with respect to any Series
issued pursuant to a Company Exchange, assigned to such term in subsection 5.11
of the Pooling Agreement.
"Principal Transfer Agent" shall have the meaning assigned to such
term in the Paying Agency Agreement.
"Program Costs" shall have, with respect to any Series, the meaning
assigned to such term in the related Supplement for such Series.
"Program Termination Event" shall have the meaning assigned to such
term in Section 7.02 of the Origination Agreements.
"Pro-Rata Share" shall have the meaning assigned to such term in the
Series 2000-1 Asset Purchase Agreement.
"Publication Date" shall have the meaning assigned to such term in
subsection 7.02(a) of the Pooling Agreement.
"Purchased Percentage" shall have the meaning assigned to such term in
the Series 2000-1 Supplement.
"Purchaser Letter" shall mean a Purchaser Letter in substantially the
form attached as Exhibit F to the Series 2000-2 Supplement.
"Purchaser's Acquisition Cost" shall have the meaning assigned to such
term in the Form of Transfer Supplement attached as Exhibit A to the Series
2000-1 Asset Purchase Agreement.
"Purchaser's Funding Balance" shall have the meaning assigned to such
term in the Form of Transfer Supplement attached as Exhibit A to the Series
2000-1 Asset Purchase Agreement.
"Qualified Institutional Buyer" shall have the meaning assigned to
such term in Rule 144A(a) under the Securities Act.
"Rating Agency" shall mean, with respect to each Outstanding Series,
any rating agency or agencies designated as such in this Annex X; provided that
--------
(i) in the event that no Outstanding Series has been rated, then for purposes of
the definitions of "Eligible Institution" and "Eligible Investments", "Rating
Agency" shall mean S&P and Moody's; (ii) except as provided in (i), in the event
no Outstanding Series has been rated, any reference to "Rating Agency" or the
"Rating Agencies" shall be deemed to have been deleted from the Pooling
Agreement, except that references to the term "Rating Agency Condition" shall
not be deemed deleted, but shall be modified as set forth under the definition
of such term.
"Rating Agency Condition" shall mean, with respect to any action, that
each Rating Agency shall have notified the Company, the Master Servicer, any
Funding
Annex X-35
Agent and the Trustee in writing that such action will not result in a
reduction, qualification or withdrawal of the then current rating of any
Outstanding Series or any Class of any such Outstanding Series with respect to
which it is a Rating Agency; provided that in the event that an Outstanding
--------
Series has not been rated, any reference to a "Rating Agency Condition" shall be
deemed to be a reference to the consent of Investor Certificateholders
representing Fractional Undivided Interest aggregating not less than 50% of the
Invested Amount of such Series with respect to such action.
"Rating Confirmation" shall have the meaning assigned to such term in
the Series 2000-1 Asset Purchase Agreement.
"Receivable" shall mean all the indebtedness and payment obligations
of an Obligor to an Originator arising from the sale of merchandise or services
by an Originator (and shall include, without limitation, the right of payment of
any interest, sales taxes, finance charges, returned check or late charges and
other obligations of such Obligor with respect thereto) and contributed by the
Contributor to the Company directly or indirectly pursuant to an Origination
Agreement.
"Receivable Assets" shall, as used in the Origination Agreement, have
the meaning assigned in subsection 2.01(a) thereof.
"Receivables Contribution Date" shall mean, with respect to any
Receivable, the Business Day on which the Company receives a contribution of
such Receivable from the Contributor and grants a Participation and security
interest in such Receivable to the Trust.
"Receivables Purchase Agreements" shall mean (i) as of the Series
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date, the U.S. Receivables Purchase Agreement, the U.K.
Receivables Purchase Agreement and the Dutch Receivables Purchase Agreement; and
(ii) after the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Date, any receivables purchase agreement
between Huntsman International and an Approved Originator.
"Record Date" shall mean, with respect to the initial Distribution
Date, the Business Day immediately preceding such Distribution Date and, with
respect to any other Distribution Date, the last Business Day of the immediately
preceding Settlement Period.
"Recoveries" shall mean all amounts collected (net of out-of-pocket
costs of collection) in respect of Charged-Off Receivables.
"Regulation S" shall mean Regulation S promulgated under the
Securities Act and any successor regulation thereto.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
Annex X-36
"Related Property" shall mean, with respect to any Receivable:
(a) all of the applicable U.S. Originator's, the U.K. Originator's and
the Dutch Originator's respective interest in the goods, if any, relating
to the sale which gave rise to such Receivable;
(b) all other security interests or Liens and property subject thereto
from time to time purporting to secure payment of such Receivable, whether
pursuant to the Contract related to such Receivable or otherwise, together
with all financing statements signed by the applicable Obligor describing
any collateral securing such Receivable; and
(c) all guarantees, insurance and other agreements or arrangements of
whatever character from time to time supporting or securing payment of such
Receivable whether pursuant to the Contract related to such Receivable or
otherwise;
including in the case of clauses (b) and (c), without limitation, any rights
described therein evidenced by an account, note, instrument, contract, security
agreement, chattel paper, general intangible or other evidence of indebtedness
or security.
"Relevant Amount" shall have the meaning assigned in Section 2.01(b)
of the Series 2000-1 Supplement.
"Relevant Clearing System" shall mean Clearstream and Euroclear or any
clearing system which is a central securities depository for the Series 2000-2
Term Certificates.
"Relevant Document" shall mean any document whether previously
executed or expected to be executed in connection with the transfer of any
Receivables which may have been sold or may in the future be sold pursuant to
any agreement which may have been formed or may in the future be formed on
acceptance of an offer contained in an Offer Letter which first-mentioned
document:
(i) would be necessarily required (A) to be produced as evidence in a
court in the United Kingdom in order to enable the Company to enforce its
rights in respect of such Receivables against the Obligors or (B) for any
of the purposes described in Section 5.19(b)(ii) of the Contribution
Agreement; and
(ii) would be liable to ad valorem stamp duty if it did not fulfill
the conditions for being eligible to be adjudicated free of stamp duty
under Section 42 of Finance ▇▇▇ ▇▇▇▇.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate which is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Section 414 of the
Code).
Annex X-37
"Reported Day" shall have the meaning assigned to such term in section
4.01 of the Servicing Agreement.
"Required Subordinated Amount" shall have the meaning assigned to such
term if any, set forth in the related Supplement.
"Requirement of Law" shall mean for any Person the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Resignation Notice" shall have the meaning assigned to such term in
subsection 6.02(a) of the Servicing Agreement.
"Responsible Officer" shall mean (i) when used with respect to the
Trustee, any officer within the Corporate Trust Office of the Trustee including
any Vice President, any Assistant Vice President, Trust Officer or Assistant
Trust Officer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
(ii) when used with respect to any other Person, any member of the Board, the
Chief Executive Officer, the President, the Chief Financial Officer, the
Treasurer or Manager (in the case of a limited liability company) of such
Person.
"Restricted Payments" shall have the meaning assigned to such term in
subsection 2.08(l) of the Pooling Agreement.
"Restricted Payments Test" shall mean, on any date of determination
(a) with respect to Series 2000-1, that the Series 2000-1 Target Receivables
Amount is at least equal to the sum of the Series 2000-1 Adjusted Invested
Amount and the Series 2000-1 Required Subordinated Amount and (b) with respect
to any other outstanding Series, unless otherwise specified in the related
Supplement, means that the Target Receivables Amount for such Series is at least
equal to the sum of the Adjusted Invested Amount for such Series and the
required subordinated or reserve amount for such Series.
"Restricted Period" shall have the meaning assigned to such term in
subsection 2.04(g)(i) of the Series 2000-2 Supplement.
"Revolving Period" shall have, with respect to any Outstanding Series,
the meaning assigned to such term in the related Supplement.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or any successor thereto.
"Sale Date" shall have the meaning assigned to such term in Section
2.01(a) of the U.S. Receivables Purchase Agreement.
Annex X-38
"Sale Notice" shall have the meaning assigned to such term in the
Series 2000-1 Asset Purchase Agreement.
"Securities Act" shall mean the United States Securities Act of 1933,
as amended.
"Section 42 Exemption" shall mean exemption from stamp duty under
Section 42 of Finance ▇▇▇ ▇▇▇▇.
"Senior Obligations" shall have the meaning assigned to such term in
Section 8.04 of the related Receivables Purchase Agreement.
"Series" shall mean any series of Investor Certificates and any
related Subordinated Company Interests, the terms of which are set forth in a
Supplement.
"Series Amount" shall mean any amount which is held in any Series
Concentration Account and "Series Amounts" shall mean all such amounts.
"Series 2000-1" shall mean the Series of Investor Certificates and the
Subordinated Company Interests, the Principal Terms of which are set forth in
the Series 2000-1 Supplement.
"Series 2000-1 Accrued Expense Adjustment" shall mean, for any
Business Day in any Accrual Period, the amount, if any, which may be less than
zero, equal to the difference between (a) the entire amount of (i) the sum of
all accrued and unpaid Series 2000-1 Daily Interest Expense from the beginning
of such Accrual Period to and including such Business Day, (ii) the Series 2000-
1 Monthly Servicing Fee, (iii) the aggregate amount of all previously accrued
and unpaid Series 2000-1 Monthly Interest for prior Distribution Dates, (iv) the
aggregate amount of all accrued and unpaid Series 2000-1 Additional Interest and
(v) all accrued Series 2000-1 Program Costs, in each case for such Accrual
Period determined as of such day, and (b) the aggregate of the amounts
transferred to the Series 2000-1 Non-Principal Concentration Subaccount on or
before such day in respect of such Accrual Period pursuant to subsection
3A.03(a)(i) of the Series 2000-1 Supplement, before giving effect to any
transfer made in respect of the Series 2000-1 Accrued Expense Adjustment on such
day pursuant to the proviso to such subsection.
"Series 2000-1 Accrued Expense Amount" shall mean, for each Business
Day during an Accrual Period, the sum of (a) in the case of each of the first
ten Business Days in the Accrual Period, one-tenth of the Series 2000-1 Monthly
Servicing Fee, (in the case of the foregoing clause (a), up to the amount
thereof due and payable on the succeeding Distribution Date), (b) in the case of
each Business Day of each Accrual Period, an amount equal to the amount of
accrued and unpaid Series 2000-1 Daily Interest Expense in respect of such day,
(c) the aggregate amount of all previously accrued and unpaid Series 2000-1
Monthly Interest for prior Distribution Dates, (d) the aggregate amount of all
accrued and unpaid Series 2000-1 Additional Interest and (e) all Series 2000-1
Program Costs that have accrued since the preceding Business Day.
Annex X-39
"Series 2000-1 Accrued Interest Subaccount" shall have the meaning
assigned in subsection 3A.02(a) of the Series 2000-1 Supplement.
"Series 2000-1 Acquiring Purchaser" shall have the meaning assigned to
such term in subsection 11.10(b) of the Series 2000-1 Supplement.
"Series 2000-1 Acquisition Date" shall have the meaning assigned to
such term in Section 7.01 of the Series 2000-1 Supplement.
"Series 2000-1 Additional Interest" shall have the meaning assigned to
such term in subsection 3A.04(b) of the Series 2000-1 Supplement
"Series 2000-1 Adjusted Invested Amount" shall mean, as of any date of
determination, (i) the Series 2000-1 Invested Amount on such date, minus (ii)
the amount on deposit in the Series 2000-1 Principal Concentration Subaccount on
such date up to a maximum of the Series 2000-1 Invested Amount.
"Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇" shall mean, with respect
to any Business Day, the aggregate amount of the Series 2000-1 Commitments of
all Series 2000-1 APA Banks on such date, as reduced from time to time or
terminated in their entirety pursuant to Section 2.08 of the Series 2000-1
Supplement.
"Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Unpaids" shall mean, at any time, an amount
equal to the sum of (i) the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, (▇▇) the aggregate
amount of all previously accrued and unpaid Series 2000-1 Monthly Interest for
prior Distribution Dates, (iii) the aggregate amount of all accrued and unpaid
Series 2000-1 Additional Interest, (iv) any Series 2000-1 Commitment Fee payable
to the Funding Agent for the benefit of the Series 2000-1 Purchasers, and (v)
all other amounts owed (whether due or accrued) under the Transaction Documents
by the Company or the Master Servicer to PARCO and the Series 2000-1 APA Banks
at such time.
"Series 2000-1 Allocable Charged-Off Amount" shall mean, with respect
to any Special Allocation Settlement Report Date, the "Allocable Charged-Off
Amount", if any, that has been allocated to Series 2000-1.
"Series 2000-1 Allocable Recoveries Amount" shall mean, with respect
to any Special Allocation Settlement Report Date, the "Allocable Recoveries
Amount", if any, that has been allocated to Series 2000-1.
"Series 2000-1 Allocated Receivables Amount" shall mean, on any date
of determination, the lower of (i) the Series 2000-1 Target Receivables Amount
on such day and (ii) the product of (x) the Aggregate Receivables Amount on such
day times (y) the percentage equivalent of a fraction the numerator of which is
the Series 2000-1 Target Receivables Amount on such day and the denominator of
which is the Aggregate Target Receivables Amount on such day.
"Series 2000-1 Amortization Period" shall mean the period following
the Series 2000-1 Revolving Period and ending on the earlier of (a) the date
when the Series
Annex X-40
2000-1 Invested Amount shall have been reduced to zero and all accrued interest
and other amounts owing on the Series 2000-1 VFC Certificate and to the Funding
Agent and the Series 2000-1 Purchasers under the Transaction Documents shall
have been paid and (b) the Series 2000-1 Termination Date.
"Series 2000-1 APA Bank" shall mean any APA Bank party to the Series
2000-1 Supplement and the Series 2000-1 Asset Purchase Agreement including such
APA Bank's permitted successors or assigns.
"Series 2000-1 Applicable Margin" shall mean on any date of
determination, from and after the date of delivery of a Sale Notice or PARCO
Insolvency Notice (i) for each Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ applicable to
Series 2000-1 VFC Certificate Interests held by the Series 2000-1 APA Banks,
1.25% per annum and (ii) for each Series 2000-1 Floating Tranche applicable to
Series 2000-1 VFC Certificate Interests held by the Series 2000-1 APA Banks,
2.00% per annum.
"Series 2000-1 Article VII Costs" shall mean any amounts due pursuant
to Article VII of the Series 2000-1 Supplement.
"Series 2000-1 Asset Purchase Agreement" shall mean the Asset Purchase
Agreement, dated as of December 21, 2000 by and among PARCO, Chase, as Funding
Agent, and the Series 2000-1 APA Banks from time to time party thereto and
relating to the Trust, as the same from time to time may be amended,
supplemented or otherwise modified and in effect.
"Series 2000-1 Available Pricing Amount" shall mean, on any Business
Day, the sum of (i) the Series 2000-1 Unallocated Balance plus (ii) the Series
2000-1 Increase, if any, on such date.
"Series 2000-1 Benefited Purchaser" shall have the meaning assigned in
Section 11.12 of the Series 2000-1 Supplement.
"Series 2000-1 Carrying Cost Reserve Ratio" shall mean, as of any
Settlement Report Date and continuing until (but not including) the next
Settlement Report Date, an amount (expressed as a percentage) equal to (a) the
product of (i) 2.0 times Days Sales Outstanding as of such day and (ii) the
greater of (1) 1.30 times the ABR in effect as of such day and (2) the
Eurodollar Rate plus the Series 2000-1 Applicable Margin, each as in effect as
of such day divided by (b) 365.
"Series 2000-1 Certificate Rate" shall mean, on any date of
determination, the average (weighted based on the respective outstanding amounts
of the Series 2000-1 Floating Tranche, each Series 2000-1 CP Tranche and each
Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇) of the ABR, the Series 2000-1 CP Rate and
Eurodollar Rate in effect on such day plus, in the case of the ABR and the
Eurodollar Rate, the applicable Series 2000-1 Applicable Margin and in the case
of the CP Rate the Series 2000-1 Utilization Fee Rate.
Annex X-41
"Series 2000-1 Collections" shall mean, with respect to any Business
Day, an amount equal to the product of (i) the Series 2000-1 Invested Percentage
on such Business Day and (ii) Aggregate Daily Collections.
"Series 2000-1 Commitment" shall mean, as to any Series 2000-1 APA
Bank, its obligation to purchase the Series 2000-1 VFC Certificate on the Series
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date, to acquire all or part of the Series 2000-1 Initial
Purchaser's Series 2000-1 VFC Certificate Interest and to maintain and, subject
to certain conditions, increase, its Series 2000-1 Purchaser Invested Amount, in
an aggregate amount, in each case, not to exceed at any one time outstanding the
amount set forth opposite such Series 2000-1 APA Bank's name on Schedule 1 of
the Series 2000-1 Supplement and Annex I of the Series 2000-1 Asset Purchase
Agreement under the caption "Commitment", or in its Series 2000-1 Commitment
Transfer Supplement as such amount may be reduced from time to time pursuant to
subsection 2.08(e) of the Series 2000-1 Supplement; collectively, as to all
Series 2000-1 APA Banks, the "Series 2000-1 Commitments".
"Series 2000-1 Commitment Percentage" shall mean, as to any Series
2000-1 APA Bank and as of any date, the percentage equivalent of a fraction, the
numerator of which is such Series 2000-1 APA Bank's Series 2000-1 Commitment as
set forth on Schedule 1 of the Series 2000-1 Supplement and Annex I of the
Series 2000-1 Asset Purchase Agreement or in its Series 2000-1 Commitment
Transfer Supplement and the denominator of which is the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇
Commitment Amount as of such date.
"Series 2000-1 Commitment Period" shall mean the period commencing on
the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date and terminating on the Series 2000-1 Commitment
Termination Date.
"Series 2000-1 Commitment Reduction" shall have the meaning assigned
to such term in subsection 2.08(a) of the Series 2000-1 Supplement.
"Series 2000-1 Commitment Termination Date" shall mean the earliest to
occur of (a) the date on which all amounts due and owing to PARCO and the APA
Banks in respect of the Series 2000-1 VFC Certificate have been indefeasibly
paid in full to PARCO and the APA Banks (as certified by the Funding Agent), and
the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Commitment Amount has been reduced to zero pursuant
to Section 2.08 of the Series 2000-1 Supplement and Section 2.05 of the Series
2000-1 Asset Purchase Agreement and (b) the Series 2000-1 Scheduled Commitment
Termination Date.
"Series 2000-1 Commitment Transfer Supplement" shall mean a commitment
transfer supplement substantially in the form of Exhibit B attached to the
Series 2000-1 Supplement.
"Series 2000-1 Concentration Subaccounts" shall have the meaning
assigned to such term in subsection 3A.02(a) of the Series 2000-1 Supplement.
"Series 2000-1 CP Rate" shall mean, with respect to any Series 2000-1
CP Rate Period, the rate equivalent to (i) the weighted average of the discount
rates on all of
Annex X-42
the Series 2000-1 CP Tranches issued at a discount and outstanding during the
related Series 2000-1 CP Rate Period, converted to an annual yield-equivalent
rate on the basis of a 360-day year, which rates shall include dealer fees and
commissions and (ii) the weighted average of the annual interest rates payable
on all interest-bearing PARCO Commercial Paper outstanding during the related
Series 2000-1 CP rate period, on the basis of a 360-day year, which rates shall
include dealer fees and commissions; provided that, to the extent that the
--------
Series 2000-1 Invested Amount is funded by a specific issuance of PARCO's
Commercial Paper, the "Series 2000-1 CP Rate" shall equal the rate or weighted
average of the rates applicable to such issuance.
"Series 2000-1 CP Rate Period" shall mean, with respect to any Series
2000-1 CP Tranche, a Settlement Period.
"Series 2000-1 CP Tranche" shall mean a portion of the Series 2000-1
Invested Amount for which the Series 2000-1 Monthly Interest is calculated by
reference to a particular Series 2000-1 CP Rate and a particular Series 2000-1
CP Rate Period.
"Series 2000-1 Daily Interest Deposit" shall mean, for any Business
Day, an amount equal to (i) the amount of accrued and unpaid Series 2000-1 Daily
Interest Expense in respect of such day plus (ii) the aggregate amount of all
previously accrued and unpaid Series 2000-1 Daily Interest Expense that has not
yet been deposited in the Series 2000-1 Accrued Interest Subaccount plus (iii)
the aggregate amount of all accrued and unpaid Series 2000-1 Additional
Interest.
"Series 2000-1 Daily Interest Expense" for any day in any Accrual
Period, shall mean the sum of (A) the product of (i) the portion of the Series
2000-1 Invested Amount (calculated without regard to clauses (d) and (e) of the
definition of Series 2000-1 Purchaser Invested Amount) allocable to the Series
2000-1 Floating Tranche on such day divided by 365 and (ii) the ABR plus the
Series 2000-1 Applicable Margin in effect on such day plus the accrued and
unpaid Series 2000-1 Unused Fee in respect of such day, (B) the product of (i)
the portion of the Series 2000-1 Invested Amount (calculated without regard to
clauses (d) and (e) of the definition of Series 2000-1 Purchaser Invested
Amount) allocable to Series 2000-1 Eurodollar Tranches on such day divided by
360 and (ii) the Eurodollar Rate plus the Series 2000-1 Applicable Margin on
such day in effect with respect thereto plus the accrued and unpaid Series 2000-
1 Unused Fee in respect of such day and (C) the product of (i) the Series 2000-1
Invested Amount (calculated without regard to clauses (d) and (e) of the
definition of Series 2000-1 Purchaser Invested Amount) allocable to Series 2000-
1 CP Tranches on such day divided by 360 and (ii) the Series 2000-1 CP Rate plus
the accrued and unpaid Series 2000-1 Unused Fee in respect of such day plus the
accrued and unpaid Series 2000-1 Utilization Fee in respect of such day;
provided, however, that for the purposes of calculating Series 2000-1 Monthly
-------- -------
Interest, the "Series 2000-1 Daily Interest Expense" for any day following the
date of determination shall be based on the allocable portions of the Series
2000-1 Invested Amount, the ABR, Eurodollar Rate, the Series 2000-1 CP Rate and
the applicable Series 2000-1 Margin and the Series 2000-1 Utilization Fee Rate,
as of or in effect on such date of determination; provided, further, that for
--------
any such day during the continuation of a Series 2000-1 Early Amortization
Period, the "Series 2000-1 Daily
Annex X-43
Interest Expense" for such day shall be equal to the greater of (i) the sum of
the amounts calculated pursuant to clauses (A), (B) and (C) above and (ii) the
product of (x) the Series 2000-1 Invested Amount on such day divided by 365 and
(y) (A) the ABR in effect on such day plus 2.00% per annum or (B) the CP Rate
plus 2.00% per annum.
"Series 2000-1 Decrease" shall have the meaning assigned to such term
in subsection 2.07(a) of the Series 2000-1 Supplement.
"Series 2000-1 Defaulting APA Bank" shall have the meaning assigned to
such term in subsection 2.06(c) of the Series 2000-1 Supplement or to the term
"Defaulting APA Bank" in subsection 2.02(b) of the Series ▇▇▇▇-▇ ▇▇▇▇▇ Purchase
Agreement.
"Series 2000-1 Dilution Reserve Ratio" shall mean, as of any
Settlement Report Date, and continuing until (but not including) the next
Settlement Report Date, an amount (expressed as a percentage) that is calculated
as follows:
DRR = [(c * d) + [(e-d) * (e/d)]] * f
where:
DRR = Series 2000-1 Dilution Reserve Ratio;
c = 2.00;
d = the twelve-month rolling average of the Dilution Ratio that occurred
during the period of twelve consecutive Settlement Periods ending
immediately prior to such earlier Settlement Report Date;
e = the highest Dilution Ratio that occurred during the period of twelve
consecutive Settlement Periods ending prior to such earlier
Settlement Report Date; and
f = the Dilution Period.
"Series 2000-1 Early Amortization Date Balance" shall have the
meaning assigned to such term within the definition of "Termination Date
Balance" in the Series ▇▇▇▇-▇ ▇▇▇▇▇ Purchase Agreement.
"Series 2000-1 Early Amortization Event" shall have the meanings
assigned to such term in Section 5.01 of the Series 2000-1 Supplement.
"Series 2000-1 Early Amortization Period" shall have the meanings
assigned to such term in Section 5.01 of the Series 2000-1 Supplement.
"Series 2000-1 Euro Concentration Account" shall mean the account
established by the Trustee pursuant to Section 3A.02 of the Supplement.
Annex X-44
"Series 2000-1 Eurodollar Period" shall mean, with respect to any
Series 2000-1 Eurodollar Tranche:
(a) initially, following a PARCO Termination Event or any other Series
2000-1 Purchase, the period commencing on such PARCO Termination Event or
any other Series 2000-1 Purchase and ending one month thereafter; and
(b) thereafter, each period commencing on the last day of the
immediately preceding Series 2000-1 Eurodollar Period applicable to such
Series 2000-1 Eurodollar Tranche and ending one month thereafter;
provided that, all of the foregoing provisions relating to Series 2000-1
--------
Eurodollar Periods are subject to the following:
(1) if any Series 2000-1 Eurodollar Period would otherwise end on
a day that is not a Business Day, such Series 2000-1 Eurodollar Period
shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Series 2000-1
Eurodollar Period into another calendar month in which event such
Series 2000-1 Eurodollar Period shall end on the immediately preceding
Business Day;
(2) any Series 2000-1 Eurodollar Period that would otherwise
extend beyond the Series 2000-1 Revolving Period shall end on the last
day of the Series 2000-1 Revolving Period; and
(3) any Series 2000-1 Eurodollar Period that begins on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Series 2000-1 Eurodollar Period) shall end on the last Business Day of
a calendar month.
"Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇" shall mean a portion of the Series
2000-1 Invested Amount for which the Series 2000-1 Monthly Interest is
calculated by reference to the Eurodollar Rate determined by reference to a
particular Series 2000-1 Eurodollar Period.
"Series 2000-1 Excess Program Costs" shall have the meaning assigned
to such term within the definition of " Series 2000-1 Program Costs".
"Series 2000-1 Excluded Taxes" shall have the meaning assigned to such
term in subsection 7.03(a) of the Series 2000-1 Supplement.
"Series 2000-1 Floating Tranche" shall mean, on or after a PARCO
Termination Event or any other Series 2000-1 Purchase, that portion of the
Series 2000-1 Invested Amount not allocated to a Series 2000-1 Eurodollar
Tranche for which the Series 2000-1 Monthly Interest is calculated by reference
to the ABR.
Annex X-45
"Series 2000-1 Increase" shall have the meaning assigned to such term
in subsection 2.05(a) of the Series 2000-1 Supplement.
"Series 2000-1 Increase Amount" shall have the meaning assigned to
such term in subsection 2.05(a) of the Series 2000-1 Supplement.
"Series 2000-1 Increase Date" shall have the meaning assigned to such
term in subsection 2.05(a) of the Series 2000-1 Supplement.
"Series 2000-1 Indemnified Amounts" shall have the meaning assigned to
such term in subsection 2.10(a) of the Series 2000-1 Supplement.
"Series 2000-1 Indemnified Parties" shall have the meaning assigned to
such term in subsection 2.10(a) of the Series 2000-1 Supplement.
"Series 2000-1 Initial Invested Amount" shall mean $175,000,000.
"Series 2000-1 Initial Purchaser" shall mean PARCO, including its
successors and assigns and excluding, however, the Series 2000-1 APA Banks as
assignees pursuant to Section 2.06 of the Series 2000-1 Supplement.
"Series 2000-1 Initial Purchaser Increase" shall have the meaning
assigned to such term in the Series 2000-1 Supplement.
"Series 2000-1 Initial Subordinated Interest Amount" shall mean the
Series 2000-1 Subordinated Interest Amount on the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date.
"Series 2000-1 Interest Shortfall" shall have the meaning assigned to
such term in subsection 3A.04(b) of the Series 2000-1 Supplement.
"Series 2000-1 Invested Amount" shall mean, on any date of
determination, the aggregate sum of the Series 2000-1 Purchaser Invested Amount
for each Series 2000-1 Purchasers on such date.
"Series 2000-1 Invested Percentage" shall mean, with respect to any
Business Day (i) during the Series 2000-1 Revolving Period, the percentage
equivalent of a fraction, the numerator of which is the Series 2000-1 Allocated
Receivables Amount as of the end of the immediately preceding Business Day and
the denominator of which is the greater of (A) the Aggregate Receivables Amount
as of the end of the immediately preceding Business Day and (B) the sum of the
numerators used to calculate the Invested Percentage for all Outstanding Series
on the Business Day for which such percentage is determined and (ii) during the
Series 2000-1 Amortization Period, the percentage equivalent of a fraction, the
numerator of which is the Series 2000-1 Allocated Receivables Amount as of the
end of the last Business Day of the Series 2000-1 Revolving Period (provided
--------
that if during the Series 2000-1 Amortization Period, the amortization periods
of all other Outstanding Series which were outstanding prior to the commencement
of the Series 2000-1 Amortization Period commence, then, from and after the date
the last of such series commences its Amortization Period, the numerator
Annex X-46
shall be the Series 2000-1 Allocated Receivables Amount as of the end of the
Business Day preceding such date) and the denominator of which is the greater of
(A) the Aggregate Receivables Amount as of the end of the immediately preceding
Business Day and (B) the sum of the numerators used to calculate the Invested
Percentage for all Outstanding Series on the Business Day for which such
percentage is determined.
"Series 2000-1 Issuance Date" shall mean December 21, 2000.
"Series 2000-1 Loss Amount" shall have the meaning assigned to such
term within the definition of "Loss Amount" in the Series ▇▇▇▇-▇ ▇▇▇▇▇ Purchase
Agreement.
"Series 2000-1 Loss Reserve Ratio" shall mean, on any Settlement
Report Date, and continuing until (but not including) the next Settlement Report
Date, an amount (expressed as a percentage) that is calculated as follows:
LRR = [(a * b)/c] * d * e
where:
LRR = Series 2000-1 Loss Reserve Ratio;
a = the aggregate Principal Amount of Receivables contributed by the
Contributor to the Company (and in which a Participation and a
security interest has been granted by the Company to the Trust)
during the three Settlement Periods immediately preceding such
earlier Settlement Report Date;
b = the highest three-month rolling average of the Aged Receivables Ratio
that occurred during the period of twelve consecutive Settlement
Periods ending prior to such earlier Settlement Report Date;
c = the Aggregate Receivables Amount as of the last day of the Settlement
Period immediately preceding such earlier Settlement Report Date;
d = 2.00; and
e = Payment Terms Factor.
"Series 2000-1 Majority Purchasers" shall mean (i) on any day prior
to the occurrence of a PARCO Termination Event, the Series 2000-1 Initial
Purchaser and the Series 2000-1 APA Banks having, in the aggregate, more than
50% of the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Commitment Amount and (ii) on or after the
occurrence of a PARCO Termination Event, the Series 2000-1 APA Banks having, in
the aggregate, more than 50% of the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
"Series 2000-1 Maximum Commitment Amount" shall mean initially
$306,000,000, as such amount may be reduced from time to time in accordance with
the Transaction Documents.
Annex X-47
"Series 2000-1 Maximum Invested Amount" shall mean, on any day, the
lesser of (a) the Series 2000-1 Maximum Commitment Amount as of such day divided
by 1.02 and (b) the Aggregate Receivables Amount as of such day minus the Series
2000-1 Required Subordinated Amount as of such day.
"Series 2000-1 Maximum Percentage Factor" shall mean 100%.
"Series 2000-1 Minimum Ratio" shall mean, as of any Settlement Report
Date and continuing until (but not including) the next Settlement Report Date,
an amount (expressed as a percentage) that is calculated for the Series 2000-1
VFC Certificate as follows:
MR = (a * b) + c
where:
MR = Series 2000-1 Minimum Ratio;
a = the average of the Dilution Ratio during the period of the twelve
consecutive Settlement Periods ending prior to such earlier Settlement
Report Date;
b = the Dilution Period; and
c = 8%.
"Series 2000-1 Monthly Interest" shall mean, with respect to any
Accrual Period, the sum of the Series 2000-1 Daily Interest Expense for each day
in such Accrual Period.
"Series 2000-1 Monthly Interest Distribution" shall have the meaning
assigned to such term in subsection 3A.04(a) of the Series 2000-1 Supplement.
"Series 2000-1 Monthly Interest Payment" shall have the meaning
assigned to such term in subsection 3A.06(a) of the Series 2000-1 Supplement.
"Series 2000-1 Monthly Principal Payment" shall have the meaning
assigned to such term in subsection 3A.05(a) of the Series 2000-1 Supplement.
"Series 2000-1 Monthly Servicing Fee" shall have the meaning assigned
to such term in Section 6.01 of the Series 2000-1 Supplement
"Series 2000-1 Non-Defaulting APA Bank" shall have the meaning
assigned to such term in subsection 2.06(c) of the Series 2000-1 Supplement and
Section 2.02(b) of the Series ▇▇▇▇-▇ ▇▇▇▇▇ Purchase Agreement.
"Series 2000-1 Non-Excluded Taxes" shall have the meaning assigned to
such term in subsection 7.03(a) of the Series 2000-1 Supplement.
Annex X-48
"Series 2000-1 Non-Principal Concentration Subaccount" shall have the
meaning assigned to such term in subsection 3A.02(a) of the Series 2000-1
Supplement.
"Series 2000-1 Other Taxes" shall have the meaning assigned to such
term in subsection 7.03(a) of the Series 2000-1 Supplement.
"Series 2000-1 Participants" shall have the meaning assigned in
subsection 11.10(f) of the Series 2000-1 Supplement
"Series 2000-1 Percentage Factor" shall mean the fraction, expressed
as a percentage, computed on any date of determination as follows: (i) the
Series 2000-1 Target Receivables Amount on such date, divided by (ii) the Series
2000-1 Allocated Receivables Amount plus any funds on deposit in the subaccount
for the General Reserve Account relating to Series 2000-1. The Series 2000-1
Percentage Factor shall be calculated by the Master Servicer on the Series 2000-
1 Issuance Date. Thereafter, until the Series 2000-1 Termination Date, the
Master Servicer shall recompute the Series 2000-1 Percentage Factor as of the
close of business on each Business Day and report such recomputations to the
Funding Agent in the Daily Report, Monthly Settlement Report and as otherwise
requested by the Funding Agent. The Series 2000-1 Percentage Factor shall
remain constant from the time as of which any such computation or recomputation
is made until the time as of which the next such recomputation shall be made,
notwithstanding any additional Receivables arising or any Series 2000-1 Increase
or Series 2000-1 Decrease during any period between computations of the Series
2000-1 Percentage Factor. The Series 2000-1 Percentage Factor shall remain
constant at 100% at all times on and after the Series 2000-1 Termination Date
until such time as the Funding Agent, on behalf of PARCO and the Series 2000-1
APA Banks, shall have received the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Unpaids in cash.
"Series 2000-1 Pound Sterling Concentration Account" shall mean the
account established by the Trustee pursuant to Section 3A.02 of the Supplement.
"Series 2000-1 Principal Concentration Subaccount" shall mean the
account established by the Trustee pursuant to Section 3A.02(a) of the Series
2000-1 Supplement.
"Series 2000-1 Program Costs" shall mean, for any Business Day, the
sum of (i) all expenses, indemnities and other amounts due and payable to the
Series 2000-1 Purchasers and the Funding Agent under the Pooling Agreement or
the Series 2000-1 Supplement (including, without limitation, any Series 2000-1
Article VII Costs), (ii) the product of (A) all unpaid fees and expenses due and
payable to counsel to, and independent auditors of, the Company (other than fees
and expenses payable on or in connection with the closing of the issuance of the
Series 2000-1 VFC Certificate) and (B) a fraction, the numerator of which is the
Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Commitment Amount on such Business Day, and the
denominator of which is the sum of (x) the Invested Amount on such Business Day
for all Series then Outstanding (excluding Series 2000-1), and (y) the Series
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ such Business Day, and (iii) all unpaid
fees and expenses due and payable to the Series 2000-1 Rating
Annex X-49
Agencies; provided, however, that Series 2000-1 Program Costs shall not exceed
-------- -------
$100,000 in the aggregate in any fiscal year of the Master Servicer (any amount
of the foregoing expenses, indemnities and fees in excess of $100,000 shall be
referred to herein as "Series 2000-1 Excess Program Costs").
"Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇" shall mean any assignment by the Series 2000-
1 Initial Purchaser to the Series 2000-1 APA Banks of all or a portion of the
Series 2000-1 Initial Purchaser's right, title and interest in and to the Series
2000-1 Purchaser Invested Amount pursuant to Section 2.01 of the Series ▇▇▇▇-▇
▇▇▇▇▇ Purchase Agreement and Section 2.06 of the Series 2000-1 Supplement.
"Series 2000-1 Purchase Amount" shall have the meaning assigned to
such term in the Series ▇▇▇▇-▇ ▇▇▇▇▇ Purchase Agreement.
"Series 2000-1 Purchase Date" shall have the meaning assigned to such
term in the Series ▇▇▇▇-▇ ▇▇▇▇▇ Purchase Agreement.
"Series 2000-1 Purchase Percentage" shall have the meaning assigned to
such term in a Series 2000-1 Asset Purchase Agreement.
"Series 2000-1 Purchased Percentage" shall have the meaning assigned
to such term in a Series 2000-1 Commitment Transfer Supplement substantially in
the form attached as Exhibit B to the Series 2000-1 Supplement.
"Series 2000-1 Purchase Price" shall have the meaning assigned to such
term in the Series ▇▇▇▇-▇ ▇▇▇▇▇ Purchase Agreement.
"Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇" shall mean, prior to a PARCO Termination
Event, the Series 2000-1 Initial Purchaser and each Series 2000-1 Acquiring
Purchaser, and on and after a PARCO Termination Event or a Series 2000-1
Purchase, the Series 2000-1 APA Banks and each Series 2000-1 Acquiring
Purchaser.
"Series 2000-1 Purchaser Invested Amount" shall mean, (i) with respect
to the Series 2000-1 Initial Purchaser on the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date, an
amount equal to the Series 2000-1 Initial Invested Amount (ii) if the Series
2000-1 Initial Purchaser does not fund any or all of the Series 2000-1 Initial
Invested Amount on such Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date (x) with respect to the
Series 2000-1 Initial Purchaser, the Series 2000-1 Initial Invested Amount so
funded by the Series 2000-1 Initial Purchaser (y) with respect to the Series
2000-1 APA Banks an amount equal to such Series 2000-1 APA Bank's Series 2000-1
Commitment Percentage of the Series 2000-1 Initial Invested Amount so funded by
such Series 2000-1 APA Bank (iii) with respect to any date of determination
after the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date, an amount equal to (a) the Series 2000-1
Initial Invested Amount allocable to the Series 2000-1 VFC Certificate Interest
of such Series 2000-1 Purchaser on the immediately preceding Business Day, (or,
with respect to the day as of which such Series 2000-1 Purchaser becomes a
Series 2000-1 Purchaser, whether pursuant to Section 2.06 of the Series 2000-1
Supplement, by executing a counterpart of the Series 2000-1 Supplement, a Series
2000-1 Commitment Transfer Supplement or otherwise, the portion of the
transferor's Series 2000-1 Purchaser
Annex X-50
Invested Amount being purchased) plus (b) the amount of any Series 2000-1
Increase Amount pursuant to Section 2.05 of the Series 2000-1 Supplement made on
such day minus (c) the amount of any distributions received and applied to such
Series 2000-1 Purchaser pursuant to Section 2.07 or subsection 3A.06(c)(ii) of
the Series 2000-1 Supplement on such day, minus (d) the aggregate Series 2000-1
Allocable Charged Off Amount allocable to the Series 2000-1 VFC Certificate
Interest of such Series 2000-1 Purchaser on or prior to such date pursuant to
subsection 3A.05(b)(ii) of the Series 2000-1 Supplement, plus (e) the aggregate
Series 2000-1 Allocable Recoveries Amount allocate to the Series 2000-1 VFC
Certificate Interest of such Series 2000-1 Purchaser on or prior to such date
pursuant to subsection 3A.05(c)(i) of the Series 2000-1 Supplement.
"Series 2000-1 Purchase Price Deficit" shall have the meaning assigned
to such term in subsection 2.06(c) of the Series 2000-1 Supplement.
"Series 2000-1 Rating Agencies" shall mean the collective reference to
S&P and ▇▇▇▇▇'▇.
"Series 2000-1 Ratio" shall mean the greater of (i) the sum of the
Series 2000-1 Dilution Reserve Ratio and the Series 2000-1 Loss Reserve Ratio
and (ii) the Series 2000-1 Minimum Ratio.
"Series 2000-1 Reduction Percentage" shall mean, with respect to any
Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ for which there is a Series 2000-1 Loss Amount, the
percentage equivalent of a fraction, the numerator of which is the Series 2000-1
Loss Amount for such Series 2000-1 Purchase and the denominator of which is the
sum of (i) the Series 2000-1 Early Amortization Date Balance and (ii) the Series
2000-1 Loss Amount.
"Series 2000-1 Register" shall have the meaning assigned to such term
in subsection 11.10(d) of the Series 2000-1 Supplement.
"Series 2000-1 Required APA Banks" shall mean, on any day, the Series
2000-1 APA Banks having, in the aggregate, more than 51% of the Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
"Series 2000-1 Required Subordinated Amount" shall mean (a) on any
date of determination during the Series 2000-1 Revolving Period, an amount equal
to the sum of:
(i) an amount equal to the product of (A) the Series 2000-1
Adjusted Invested Amount on such day (after giving effect to any
increase or decrease thereof on such day) and (B) a fraction the
numerator of which is the Series 2000-1 Ratio and the denominator of
which is one minus the Series 2000-1 Ratio;
(ii) the product of (A) the Series 2000-1 Invested Amount (after
giving effect to any increase or decrease thereof on such day) and (B)
a fraction the numerator of which is the Series 2000-1 Carrying Cost
Annex X-51
Reserve Ratio in effect for the Accrual Period in which such day falls
and the denominator of which is one minus the Series 2000-1 Ratio; and
(iii) the product of (A) the aggregate Principal Amount of
Receivables in the Trust on such day, (B) a fraction the numerator of
which is the Series 2000-1 Adjusted Invested Amount on such day, and
the denominator of which is the sum of (1) the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇
Commitment Amount on such day (after giving effect to any increase or
decrease thereof on such day) and (2) the Invested Amount on such day
for all other Series then outstanding and (C) a fraction the numerator
of which is the Servicing Reserve Ratio and the denominator of which
is one minus the Series 2000-1 Ratio;
and (b) on any date of determination during the Series 2000-1 Amortization
Period, an amount equal to the Series 2000-1 Required Subordinated Amount on the
last Business Day of the Series 2000-1 Revolving Period; provided that such
--------
amount shall be adjusted on each Special Allocation Settlement Report Date, if
any, as set forth in subsection 3A.05(b)(i) and subsection 3A.05(c)(ii) of the
Series 2000-1 Supplement.
"Series 2000-1 Revolving Period" shall mean the period commencing on
the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date and terminating on the earlier to occur of the
close of business on (i) the date on which a Series 2000-1 Early Amortization
Period is declared to commence or automatically commences and (ii) the Series
2000-1 Commitment Termination Date.
"Series 2000-1 Scheduled Commitment Termination Date" shall mean 364
days after the Effective Date, as may be extended for an additional 364 days
from time to time in writing by PARCO, the Funding Agent and the Series 2000-1
APA Banks.
"Series 2000-1 Subordinated Interest Amount" shall mean, for any date
of determination, an amount equal to (i) the Series 2000-1 Allocated Receivables
Amount minus (ii) the Series 2000-1 Adjusted Invested Amount.
"Series 2000-1 Subordinated Interest Increase Amount" shall have the
meaning assigned to such term in subsection 2.05(a) of the Series 2000-1
Supplement.
"Series 2000-1 Subordinated Interest Reduction Amount" shall have the
meaning assigned in subsection 2.07(b) of the Series 2000-1 Supplement.
"Series 2000-1 Subordinated Interests" shall have the meaning assigned
to such term in subsection 2.02(b) of the Series 2000-1 Supplement.
"Series 2000-1 Supplement" shall mean the Supplement to the Pooling
Agreement relating to the Series 2000-1 Investor Certificates.
"Series 2000-1 Target Receivables Amount" shall mean, on any date of
determination, the sum of (i) the Series 2000-1 Adjusted Invested Amount on such
day and (ii) the Series 2000-1 Required Subordinated Amount for such day.
Annex X-52
"Series ▇▇▇▇-▇ ▇▇▇▇" shall mean, with respect to each Series 2000-1
Commitment of a Series 2000-1 Purchaser, the period beginning on the Series
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date and terminating on the Series 2000-1 Commitment Termination
Date.
"Series 2000-1 Transfer Effective Date" shall have the meaning
specified in the Form of Transfer Supplement attached as Exhibit A to the Series
▇▇▇▇-▇ ▇▇▇▇▇ Purchase Agreement.
"Series 2000-1 Transfer Effective Notice" shall have the meaning
specified in the form of Transfer Supplement attached as Exhibit A to the Series
▇▇▇▇-▇ ▇▇▇▇▇ Purchase Agreement.
"Series 2000-1 Transfer Issuance Date" shall mean the date on which a
Series 2000-1 Commitment Transfer Supplement becomes effective pursuant to the
terms of such Series 2000-1 Commitment Transfer Supplement.
"Series 2000-1 Concentration Accounts" shall have the meaning assigned
to such term in subsection 3A.02(a) of the Series 2000-1 Supplement.
"Series 2000-1 Unallocated Balance" shall mean, on any Business Day
with respect to the APA Banks and the APA Banks' Series 2000-1 Purchaser
Invested Amount, the sum of (A) the portion of the Series 2000-1 Invested Amount
for which interest is then being calculated by reference to the ABR and (B) the
portion of the Series 2000-1 Invested Amount allocated to any Series 2000-1
Eurodollar Tranche that expires on such Business Day.
"Series 2000-1 Unused Fee" shall have the meaning assigned to such
term in subsection 2.09(b) of the Series 2000-1 Supplement.
"Series 2000-1 Unused Fee Rate" shall have the meaning assigned to
such term in the Fee Letter.
"Series 2000-1 U.S. Dollar Concentration Account" shall mean the
account established by the Trustee pursuant to Section 3A.02 of the Series 2000-
1 Supplement.
"Series 2000-1 Utilization Fee" shall have the meaning assigned to
such term in subsection 2.09(c) of the Series 2000-1 Supplement.
"Series 2000-1 Utilization Fee Rate" shall have the meaning assigned
to such term in the Fee Letter.
"Series 2000-1 VFC Certificate" shall mean the Series 2000-1 VFC
Certificate executed and authenticated by the Trustee, substantially in the form
of Exhibit A attached to the Series 2000-1 Supplement.
"Series 2000-1 VFC Certificate Interest" shall mean each undivided
percentage interest in the Series 2000-1 VFC Certificate acquired by (i) the
Series 2000-1
Annex X-53
Initial Purchaser in connection with the initial purchase of such Series 2000-1
VFC Certificate or any Series 2000-1 Increase or (ii) any Series 2000-1 APA Bank
becoming a Series 2000-1 Purchaser hereunder pursuant to a transfer in
accordance with Section 2.03(a) of the Supplement of such Series 2000-1 VFC
Certificate Interest or any Series 2000-1 Increase in the Series 2000-1 Invested
Amount.
"Series 2000-1 VFC Certificateholder" shall mean the registered holder
of a Series 2000-1 VFC Certificate.
"Series 2000-1 VFC Certificateholder's Interest" shall have the
meaning assigned to such term in subsection 2.02(a) of the Series 2000-1
Supplement.
"Series 2000-2" shall mean the Series of Investor Certificates and
Subordinated Company Interests, the Principal Terms of which are set forth in
the Series 2000-2 Supplement.
"Series 2000-2 Accrued Expense Adjustment" shall mean, for any
Business Day in any Accrual Period, the amount, if any, which may be less than
zero, equal to the difference between (a) the entire amount of (i) the sum of
all accrued and unpaid Series 2000-2 Daily Interest Expense from the beginning
of such Accrual Period to and including such Business Day, (ii) the Series 2000-
2 Monthly Servicing Fee, (iii) the aggregate amount of all previously accrued
and unpaid Series 2000-2 Monthly Interest for prior Distribution Dates, (iv) the
aggregate amount of all accrued and unpaid Series 2000-2 Additional Interest and
(v) all accrued Series 2000-2 Program Costs, in each case for such Accrual
Period determined as of such day, and (b) the aggregate of the amounts
transferred to the Series 2000-2 Non-Principal Concentration Subaccount on or
before such day in respect of such Accrual Period pursuant to Section
3.02(b)(ii) of the Series 2000-2 Supplement, before giving effect to any
transfer made in respect of the Series 2000-2 Accrued Expense Adjustment on such
day pursuant to the proviso to such subsection.
"Series 2000-2 Accrued Expense Amount" shall mean, for each Business
Day during an Accrual Period, the sum of (a) in the case of each of the first
ten Business Days in the Accrual Period, one-tenth of the Series 2000-2 Monthly
Servicing Fee (up to the amount thereof due and payable on the succeeding
Distribution Date), (b) in the case of each of the first ten (10) Business Days
in the Accrual Period, one-tenth of the Series 2000-2 Monthly Interest to be
distributed on the next succeeding Distribution Date and (c) all Series 2000-2
Program Costs that have accrued since the preceding Business Day.
"Series 2000-2 Adjusted Invested Amount" shall mean, as of any date of
determination, (i) the Series 2000-2 Invested Amount on such date, minus (ii)
the amount on deposit in the Series 2000-2 Principal Concentration Subaccount on
such date.
"Series 2000-2 Allocable Charged-Off Amount" shall mean, with respect
to any Special Allocation Settlement Report Date, the "Allocable Charged-Off
Amount", if any, that has been allocated to Series 2000-2.
Annex X-54
"Series 2000-2 Allocable Recoveries Amount" shall mean, with respect
to any Special Allocation Settlement Report Date, the "Allocable Recoveries
Amount", if any, that has been allocated to Series 2000-2.
"Series 2000-2 Allocated Receivables Amount" shall mean, on any date
of determination, the lower of (i) the Series 2000-2 Target Receivables Amount
on such day and (ii) the product of (a) the Aggregate Receivables Amount on such
day times (b) the percentage equivalent of a fraction the numerator of which is
the Series 2000-2 Target Receivables Amount on such day and the denominator of
which is the Aggregate Target Receivables Amount on such day.
"Series 2000-2 Amortization Period" shall mean the period commencing
on the next Business Day following the earliest to occur of (i) the date on
which a Series 2000-2 Early Amortization Period is declared to commence or
automatically commences, (ii) the Series 2000-2 Optional Termination Date and
(iii) the Series 2000-2 Scheduled Revolving Termination Date and ending on the
earlier of (i) the date when the Series 2000-2 Invested Amount shall have been
reduced to zero and all accrued interest on the Series 2000-2 Term Certificates
shall have been paid and (ii) the Series 2000-2 Termination Date.
"Series 2000-2 Bearer Certificates" shall have the meaning assigned to
such term in the Paying Agency Agreement.
"Series 2000-2 Carrying Cost Reserve Ratio" shall mean, as of any
Settlement Report Date and continuing until (but not including) the next
Settlement Report Date, an amount equal to (a) the product of (i) 2.0 times Days
Sales Outstanding) as of such day and (ii) 1.30 times the Series 2000-2 Discount
Rate as of such day, divided by (b) 360.
"Series 2000-2 Class A Additional Interest" shall have the meaning
assigned to such term in Section 3.03(b)(i) of the Series 2000-2 Supplement.
"Series 2000-2 Class A Adjusted Invested Amount" shall mean, on any
date of determination, (i) the Series 2000-2 Class A Invested Amount on such
date minus (ii) the amount on deposit in the Series 2000-2 Principal
Concentration Subaccount (up to a maximum of the Series 2000-2 Class A Invested
Amount).
"Series 2000-2 Class A Bearer Certificates" shall have the meaning
assigned to such term in Section 2.04(c)(i) of the Series 2000-2 Supplement.
"Series 2000-2 Class A Certificate" shall mean a Series 2000-2 Class A
Certificate executed by the Company and authenticated by or on behalf of the
Trustee, substantially in the form of Exhibit ▇-▇, ▇-▇ or A-3 attached to the
Series 2000-2 Supplement.
"Series 2000-2 Class A Certificate Rate" shall mean with respect to
any date of determination, (a) in the case of the initial Series 2000-2 Class A
Certificates, with respect to any Accrual Period, One-Month LIBOR for such
Accrual Period plus the
Annex X-55
interest rate set forth in the Series 2000-2 Supplement and (b) in the case of
any additional Series 2000-2 Class A Certificates issued pursuant to Section
2.07 of the Series 2000-2 Supplement, the rate per annum set forth in the
written direction delivered by the Company (or the Master Servicer on behalf of
the Company) to the Trustee pursuant to Section 2.07(c) of the Series 2000-2
Supplement.
"Series 2000-2 Class A Certificateholder" shall mean the Person who
holds a Series 2000-2 Class A Temporary Global Certificate, a Series 2000-2
Class A Permanent Global Certificate or a Series 2000-2 Class A Bearer
Certificate.
"Series 2000-2 Class A Coupons" shall have the meaning assigned to
such term in Section 2.04(c)(i) of the Series 2000-2 Supplement.
"Series 2000-2 Class A Initial Invested Amount" shall mean the amount
set forth in the Series 2000-2 Supplement.
"Series 2000-2 Class A Interest Shortfall" shall have the meaning
assigned to such term in Section 3.03(b)(i) of the Series 2000-2 Supplement.
"Series 2000-2 Class A Invested Amount" shall mean, with respect to
any date of determination, an amount equal to (i) the Series 2000-2 Class A
Initial Invested Amount (plus the initial invested amount of any Series 2000-2
Class A Certificate issued subsequent to the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date) minus
(ii) the aggregate amount of distributions to the Series 2000-2 Class A
Certificateholders (including the Holders of any such subsequently issued Series
2000-2 Class A Certificates) made in respect of principal on or prior to such
date minus (iii) the aggregate Series 2000-2 Allocable Charged-Off Amount
applied to the Series 2000-2 Class A Certificates on or prior to such date
pursuant to Section 3.04(b)(iii) of the Series 2000-2 Supplement plus (iv) (but
only to the extent of any unreimbursed reductions made pursuant to clause (iii)
above) the aggregate Series 2000-2 Allocable Recoveries Amount applied to the
Series 2000-2 Class A Certificates on or prior to such date pursuant to Section
3.04(c)(i) of the Series 2000-2 Supplement.
"Series 2000-2 Class A Monthly Interest" shall have the meaning
assigned to such term in Section 3.03(a)(i) of the Series 2000-2 Supplement.
"Series 2000-2 Class A Permanent Global Certificate" shall have the
meaning assigned to such term in Section 2.04(b) of the Series 2000-2
Supplement.
"Series 2000-2 Class A Ratio" shall mean, on any date of determination
with respect to the Series 2000-2 Class A Certificates, the greater of (i) the
sum of the Series 2000-2 Loss Reserve Ratio and the Series 2000-2 Dilution
Reserve Ratio and (ii) the Series 2000-2 Minimum Ratio, in each case applicable
to Series 2000-2 Class A Certificates.
"Series 2000-2 Class A Temporary Global Certificate" shall have the
meaning assigned in Section 2.03(a) of the Series 2000-2 Supplement.
Annex X-56
"Series 2000-2 Class B Additional Interest" shall have the meaning
assigned to such term in Section 3.03(b)(ii) of the Series 2000-2 Supplement.
"Series 2000-2 Class B Adjusted Invested Amount" shall mean, on any
date of determination, (i) the Series 2000-2 Class B Invested Amount on such
date minus (ii) the excess, if any, of the amount on deposit on such date in the
Series 2000-2 Principal Concentration Subaccount over the Series 2000-2 Class A
Invested Amount (up to a maximum of the Series 2000-2 Class B Invested Amount).
"Series 2000-2 Class B Bearer Certificates" shall have the meaning
assigned to such term in Section 2.04(c)(i) of the Series 2000-2 Supplement.
"Series 2000-2 Class B Certificate" shall mean a Series 2000-2 Class B
Certificate executed by the Company and authenticated by or on behalf of the
Trustee, substantially in the form of Exhibit ▇-▇, ▇-▇ or B-3 attached to the
Series 2000-2 Supplement.
"Series 2000-2 Class B Certificate Rate" shall be determined on the
Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date.
"Series 2000-2 Class B Certificateholder" shall mean a Person who
holds a Series 2000-2 Class B Temporary Global Certificate, a Series 2000-2
Class B Permanent Global Certificate or a Series 2000-2 Class B Bearer
Certificate.
"Series 2000-2 Class B Coupons" shall have the meaning assigned to
such term in Section 2.04(c)(i) of the Series 2000-2 Supplement.
"Series 2000-2 Class B Initial Invested Amount" shall be determined on
the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date.
"Series 2000-2 Class B Interest Shortfall" shall have the meaning
assigned to such term in Section 3.03(b)(ii) of the Series 2000-2 Supplement.
"Series 2000-2 Class B Invested Amount" shall mean, with respect to
any date of determination, an amount equal to (i) the Series 2000-2 Class B
Initial Invested Amount (plus the initial invested amount of any Series 2000-2
Class B Certificates issued subsequent to the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date) minus
(ii) the aggregate amount of distributions to the Series 2000-2 Class B
Certificateholders (including the Holders of any such subsequently issued Series
2000-2 Class B Certificates) made in respect of principal on or prior to such
date minus (iii) the aggregate Series 2000-2 Allocable Charged-Off Amount
applied to the Series 2000-2 Class B Certificates on or prior to such date
pursuant to Section 3.04(b)(ii) of the Series 2000-2 Supplement plus (iv) (but
only to the extent of any unreimbursed reductions made pursuant to clause (iii)
above) the aggregate Series 2000-2 Allocable Recoveries Amount applied to the
Series 2000-2 Class B Certificates on or prior to such date pursuant to Section
3.04(c)(ii) of the Series 2000-2 Supplement.
Annex X-57
"Series 2000-2 Class B Monthly Interest" shall have the meaning
assigned to such term in Section 3.03(a)(ii) of the Series 2000-2 Supplement.
"Series 2000-2 Class B Permanent Global Certificate" shall have the
meaning assigned to such term in Section 2.04(b) of the Series 2000-2
Supplement.
"Series 2000-2 Class B Ratio" shall mean, on any date of determination
with respect to the Series 2000-2 Class B Certificates, the greater of (i) the
sum of the Series 2000-2 Loss Reserve Ratio and the Series 2000-2 Dilution
Reserve Ratio and (ii) the Series 2000-2 Minimum Ratio, in each case applicable
to Series 2000-2 Class B Certificates.
"Series 2000-2 Class B Temporary Global Certificate" shall have the
meaning assigned to such term in Section 2.03(a) of the Series 2000-2
Supplement.
"Series 2000-2 Collections" shall mean, with respect to any Business
Day, an amount equal to the product of (i) the Series 2000-2 Invested Percentage
on the date of determination and (ii) Aggregate Daily Collections.
"Series 2000-2 Concentration Subaccount" shall have the meaning
assigned to such term in Section 3.01(a) of the Series 2000-2 Supplement.
"Series 2000-2 Coupon" shall have the meaning assigned to such term in
the Paying Agency Agreement.
"Series 2000-2 Daily Interest Expense" shall mean, for any Business
Day during any Accrual Period, the sum of (a) in the case of each of the first
ten Business Days in the Accrual Period, one-tenth of the Series 2000-2 Monthly
Interest to be distributed on the next succeeding Distribution Date (up to but
not exceeding the full amount thereof), (b) the aggregate amount of all
previously accrued and unpaid Series 2000-2 Daily Interest Expense (up to but
not exceeding the full amount thereof) and (c) the aggregate amount of all
accrued and unpaid Series 2000-2 Class A Additional Interest and Series 2000-2
Class B Additional Interest (up to but not exceeding the full amount thereof).
"Series 2000-2 Depository" shall mean The Depository Trust Company,
the nominee of which is Cede & Co., or any successor thereto.
"Series 2000-2 Dilution Reserve Ratio" shall mean, as of any
Settlement Report Date, and continuing until (but not including) the next
Settlement Report Date, an amount (expressed as a percentage) that is calculated
for the Series 2000-2 Class A Certificates and the Series 2000-2 Class B
Certificates, as the case may be, as follows:
DRR = [(c * d) + [(e-d) * (e/d)]] * f
where:
DRR = Series 2000-2 Dilution Reserve Ratio;
Annex X-58
c = with respect to Series 2000-2 Class A Certificates, 2.5, and with
respect to Series 2000-2 Class B Certificates, 2.0;
d = the twelve-month rolling average of the Dilution Ratio that occurred
during the period of twelve consecutive Settlement Periods ending
immediately prior to such earlier Settlement Report Date;
e = the highest Dilution Ratio that occurred during the period of twelve
consecutive Settlement Periods ending prior to such earlier Settlement
Report Date; and
f = the Dilution Period.
"Series 2000-2 Discount Rate" shall mean, as of any date of
determination, the sum of (a) the weighted average Series 2000-2 Class A
Certificate Rate and Series 2000-2 Class B Certificate Rate in effect with
respect to the outstanding Series 2000-2 Class A Certificates and Series 2000-2
Class B Certificates, respectively, as of the end of the Settlement Period
immediately preceding the most recent Settlement Report Date and (b) an amount
equal to (i) the aggregate amount of fees (other than the Series 2000-2
Servicing Fee and Series 2000-2 Program Costs) accrued with respect to the
outstanding Series 2000-2 Term Certificates during the Settlement Period
immediately preceding the most recent Settlement Report Date divided by (ii) the
average daily Series 2000-2 Invested Amount during such Settlement Period.
"Series 2000-2 Early Amortization Event" shall have the meanings
assigned in Section 5.01 of the Series 2000-2 Supplement and Section 7.01 of the
Pooling Agreement.
"Series 2000-2 Early Amortization Period" shall have the meanings
assigned in Section 5.01 of the Series 2000-2 Supplement and Section 7.01 of the
Pooling Agreement.
"Series 2000-2 ERISA Entity" shall mean (a) "an employee benefit plan"
(as described in Section 3(3) of ERISA) or other retirement arrangement,
individual retirement account or ▇▇▇▇▇ plan, whether or not it is subject to the
provisions of Title I of ERISA, (b) a plan described in Section 4975(e)(1) of
the Code or (c) any entity whose underlying assets include plan assets by reason
of a plan's investment in such entity or by the application of United States
Department of Labor ("DOL") Regulation 2510.3-101.
"Series 2000-2 Euro Accrued Interest Subaccount" shall mean an account
opened by the Trustee pursuant to Section 3.01(a) of the Series 2000-2
Supplement.
"Series 2000-2 Excess Program Costs shall have the meaning assigned to
such term within the definition of "Series 2000-2 Program Costs."
"Series 2000-2 Foreign Investor" means any Series 2000-2 Term
Certificateholder who is not a "United States Person".
Annex X-59
"Series 2000-2 Global Certificates" shall mean collectively, the
Series 2000-2 Class A Temporary Global Certificates, the Series 2000-2 Class A
Permanent Global Certificates, the Series 2000-2 Class B Temporary Global
Certificates and the Series 2000-2 Class B Permanent Global Certificates.
"Series 2000-2 Indemnified Amounts" shall have the meaning assigned to
such term in Section 2.08(a) of the Series 2000-2 Supplement.
"Series 2000-2 Indemnified Parties" shall have the meaning assigned to
such term in Section 2.08(a) of the Series 2000-2 Supplement.
"Series 2000-2 Initial Invested Amount" shall mean, collectively, the
Series 2000-2 Class A Initial Invested Amount and the Series 2000-2 Class B
Initial Invested Amount.
"Series 2000-2 Initial Purchaser" shall mean Chase Manhattan
International Limited.
"Series 2000-2 Invested Amount" shall mean, collectively, the Series
2000-2 Class A Invested Amount and the Series 2000-2 Class B Invested Amount.
"Series 2000-2 Invested Percentage" shall mean, with respect to any
Business Day (i) during the Series 2000-2 Revolving Period, the percentage
equivalent of a fraction, the numerator of which is the Series 2000-2 Allocated
Receivables Amount as of the end of the immediately preceding Business Day and
the denominator of which is the greater of (A) the Aggregate Receivables Amount
as of the end of the immediately preceding Business Day and (B) the sum of the
numerators used to calculate the Invested Percentage for all Outstanding Series
on the Business Day for which such percentage is determined and (ii) during the
Series 2000-2 Amortization Period, the percentage equivalent of a fraction, the
numerator of which is the Series 2000-2 Allocated Receivables Amount as of the
end of the last Business Day of the Series 2000-2 Revolving Period (provided
--------
that if during the Series 2000-2 Amortization Period, the Amortization Periods
of all other Outstanding Series which were outstanding prior to the commencement
of the Series 2000-2 Amortization Period commence, then, from and after the date
the last of such Series commences its Amortization Period, the numerator shall
be the Series 2000-2 Allocated Receivables Amount on such date) and the
denominator of which is the greater of (A) the Aggregate Receivables Amount as
of the end of the immediately preceding Business Day and (B) the sum of the
numerators used to calculate the Invested Percentage for all Outstanding Series
on the Business Day for which such percentage is determined.
"Series 2000-2 Issuance Date" shall mean the date of the Series 2000-2
issuance.
Annex X-60
"Series 2000-2 Loss Reserve Ratio" shall mean, as of any Settlement
Report Date, and continuing until (but not including) the next Settlement Report
Date, an amount (expressed as a percentage) that is calculated for the Series
2000-2 Class A Certificates and the Series 2000-2 Class B Certificates, as the
case may be, as follows:
LRR = [(a * b)/c] * d * e
where:
LRR = Series 2000-2 Loss Reserve Ratio;
a = the aggregate Principal Amount of Receivables contributed by the
Contributor to the Company (and in which a Participation and a
security interest has been granted by the Company to the Trust) during
the three (3) Settlement Periods immediately preceding such earlier
Settlement Report Date;
b = the highest three-month rolling average of the Aged Receivables Ratio
that occurred during the period of twelve (12) consecutive Settlement
Periods ending prior to such earlier Settlement Report Date;
c = the Aggregate Receivables Amount as of the last day of the Settlement
Period immediately preceding such earlier Settlement Report Date;
d = with respect to the Series 2000-2 Class A Certificates, 2.5, and with
respect to the Series 2000-2 Class B Certificates, 2.0; and
e = Payment Terms Factor.
"Series 2000-2 Majority Term Certificateholders" shall mean, on any
day, Series 2000-2 Term Certificateholders having, in the aggregate, more than
51% of the Series 2000-2 Invested Amount.
"Series 2000-2 Minimum Ratio" shall mean, as of any Settlement Report
Date and continuing until (but not including) the next Settlement Report Date,
an amount (expressed as a percentage) that is calculated for the Series 2000-2
Class A Certificates and the Series 2000-2 Class B Certificates, as the case may
be, as follows:
MR = (a * b) + c
where:
MR = Series 2000-2 Minimum Ratio;
a = the average of the Dilution Ratio during the period of the twelve (12)
consecutive Settlement Periods ending prior to such earlier Settlement
Report Date;
b = the Dilution Period; and
Annex X-61
c = with respect to Series 2000-2 Class A Certificates, 10%, and with
respect to Series 2000-2 Class B Certificates, 8%.
"Series 2000-2 Monthly Interest" shall mean, collectively, the Series
2000-2 Class A Monthly Interest and the Series 2000-2 Class B Monthly Interest.
"Series 2000-2 Monthly Principal Payment" shall have the meaning
assigned to such term in Section 3.04 of the Series 2000-2 Supplement.
"Series 2000-2 Monthly Servicing Fee" shall have the meaning assigned
to such term in Section 6.01 of the Series 2000-2 Supplement.
"Series 2000-2 Non-Principal Concentration Subaccounts" shall have the
meaning assigned to such term in Section 3.01(a) of the Series 2000-2
Supplement.
"Series 2000-2 Paying Agent Accounts" shall have the meaning assigned
to such term in Section 4.01(a) of the Series 2000-2 Supplement and subsection
4(A) of the Paying Agency Agreement.
"Series 2000-2 Periodic Payment Coupons" shall have the meaning
assigned in Section 4.01(b) of the Series 2000-2 Supplement and Subsection
4(c)(ii) of the Paying Agency Agreement.
"Series 2000-2 Pound Sterling Accrued Interest Subaccount" shall have
the meaning assigned in Section 3.01(a) of the Series 2000-2 Supplement.
"Series 2000-2 Principal Concentration Subaccount" shall have the
meaning assigned to such term in Section 3.01(a) of the Series 2000-2
Supplement.
"Series 2000-2 Principal Paying Agent" shall mean Chase Manhattan Bank
(Ireland) plc or its successor.
"Series 2000-2 Program Costs" shall mean, for any Business Day, the
sum of (i) the product of (A) all unpaid fees and expenses due and payable to
counsel to, and independent auditors of, the Company (other than fees and
expenses payable on or in connection with the closing of the issuance of any
Series 2000-2 Term Certificates) on such Business Day and (B) a fraction, the
numerator of which is the Series 2000-2 Invested Amount on such Business Day and
the denominator of which is the sum of (1) the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇
Commitment Amount on such Business Day, and (2) the sum of the 2000-2 Investment
Amount and the Invested Amounts with respect to all other Series then
Outstanding and (ii) all unpaid fees and expenses due and payable to the Series
2000-2 Rating Agencies; provided, however, that Program Costs shall not exceed
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$100,000 in the aggregate in any fiscal year of the Master Servicer (any amount
of the foregoing expenses, indemnities and fees in excess of $100,000 shall be
referred to herein as "Series 2000-2 Excess Program Costs").
"Series 2000-2 Rating Agencies" shall mean the collective reference to
S&P and ▇▇▇▇▇'▇ and their successors and assigns.
Annex X-62
"Series 2000-2 Receivables Contribution Termination Date" shall have
the meaning assigned to such term in subsection 2.06(b)(i) of the Series 2000-2
Supplement .
"Series 2000-2 Receivables Contribution Termination Notice" shall have
the meaning assigned to such term in subsection 2.06(b)(i) of the Series 2000-2
Supplement.
"Series 2000-2 Reduction Threshold" shall mean, at any date of
determination, $10,000,000.
"Series 2000-2 Regulation S Certificate" shall mean the Certificate
representing a Series 2000-2 Class A Certificate or Series 2000-2 Class B
Certificate sold outside the United States in reliance on Regulation S issued in
exchange for a Series 2000-2 Temporary Regulation S Certificate after the
expiration of the "40-day restricted period" (within the meaning of Rule
903(c)(3) of Regulation S) in substantially the form set forth in Exhibit A-3 or
Exhibit B-3 attached to the Series 2000-2 Supplement.
"Series 2000-2 Regulation S Exchange Date" shall mean the first
Business Day following the expiration of a period of 40 days after the later to
occur of (i) the offering of the Series 2000-2 Term Certificates and (ii) the
Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date.
"Series 2000-2 Required Subordinated Amount" shall mean, (a) on any
date of determination during the Series 2000-2 Revolving Period, an amount equal
to the sum of:
(i) an amount equal to the greater of (A) the difference between
(I) the product of (x) the Series 2000-2 Class A Adjusted Invested
Amount on such day (after giving effect to any increase or decrease
thereof on such day) and (y) a fraction, the numerator of which is the
Series 2000-2 Class A Ratio and the denominator of which is one minus
the Series 2000-2 Class A Ratio and (II) the Series 2000-2 Class B
Adjusted Invested Amount, and (B) the product of (x) the sum of the
Series 2000-2 Class A Adjusted Invested Amount and the Series 2000-2
Class B Adjusted Invested Amount on such day (after giving effect to
any increase or decrease thereof on such day) and (y) a fraction, the
numerator of which is the Series 2000-2 Class B Ratio and the
denominator of which is one minus the Series 2000-2 Class B Ratio;
provided that whichever method of calculation pursuant to clauses (A)
--------
and (B) results in the greatest amount on any Settlement Report Date
shall continue to be used as the method for the calculations to be
made under this paragraph (i) on each day from and after such
Settlement Report Date until (but not including) the immediately
succeeding Settlement Report Date;
(ii) the product of (A) the Series 2000-2 Invested Amount on such
day (after giving effect to any increase or decrease thereof on such
day) and (B) a fraction, the numerator of which is the Series 2000-2
Annex X-63
Carrying Cost Reserve Ratio and the denominator of which is one minus
the Series 2000-2 Class A Ratio; and
(iii) the product of (A) the Principal Amount of Receivables in
the Trust on such day, (B) a fraction, the numerator of which is the
Series 2000-2 Invested Amount on such day (after giving effect to any
increase or decrease thereof on such day) and the denominator of which
is the sum of (1) the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Commitment Amount and
(2) the sum of the 2000-2 Invested Amount and the Invested Amounts for
all other Series then outstanding and (C) a fraction, the numerator of
which is the Servicing Reserve Ratio and the denominator of which is
one minus the Series 2000-2 Class A Ratio;
and (b) on any date of determination during the Series 2000-2 Amortization
Period, an amount equal to the Series 2000-2 Required Subordinated Amount on the
last Business Day of the Series 2000-2 Revolving Period; provided in the case of
this clause (b) that such amount shall be adjusted on each Special Allocation
Settlement Report Date, if any, as set forth in Section 3.04(b)(i) and Section
3.04(c)(iii) of the Series 2000-2 Supplement.
"Series 2000-2 Revolving Period" shall mean the period commencing on
the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date and terminating on the earliest to occur of the
close of business on (i) the date on which a Series 2000-2 Early Amortization
Period is declared to commence or automatically commences, (ii) the Series 2000-
2 Optional Termination Date and (iii) the Series 2000-2 Scheduled Revolving
Termination Date.
"Series 2000-2 Scheduled Revolving Termination Date" shall be
determined prior to the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date.
"Series 2000-2 Subordinated Interests" shall have the meaning assigned
in Section 2.02(b) of the Series 2000-2 Supplement.
"Series 2000-2 Subsequent Issuance Date" shall mean each Distribution
Date, if any, on which the Trustee issues additional Series 2000-2 Class A
Certificates and Series 2000-2 Class B Certificates pursuant to Section 2.07 of
the Series 2000-2 Supplement.
"Series 2000-2 Target Receivables Amount" shall mean, on any date of
determination, the sum of (i) the Series 2000-2 Adjusted Invested Amount on such
day and (ii) the Series 2000-2 Required Subordinated Amount on such day.
"Series 2000-2 Temporary Regulation S Certificate" shall mean the
temporary Certificate initially representing the Series 2000-2 Class A
Certificates or Series 2000-2 Class B Certificates sold outside the United
States in reliance on Regulation S in substantially the form set forth in
Exhibit A-2 or Exhibit B-2 attached to the Series 2000-2 Supplement.
Annex X-64
"Series 2000-2 Term Certificateholders" shall mean, collectively, the
Series 2000-2 Class A Certificateholders and the Series 2000-2 Class B
Certificateholders.
"Series 2000-2 Term Certificateholders' Interest" shall have the
meaning assigned in Section 2.02(a) of the Series 2000-2 Supplement.
"Series 2000-2 Term Certificates" shall mean, collectively, those
Investor Certificates designated as the Series 2000-2 Class A Certificates and
the Series 2000-2 Class B Certificates.
"Series 2000-2 Termination Date" shall be determined on the Series
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date.
"Series 2000-2 Concentration Accounts" shall have the meaning assigned
in Section 3.01(a) of the Series 2000-2 Supplement.
"Series 2000-2 U.S. Certificate" shall mean the Certificate
representing the Series 2000-2 Class A Certificates and Series 2000-2 Class B
Certificates sold within the United States in substantially the form set forth
in Exhibit A-1 or Exhibit B-1 attached to the Series 2000-2 Supplement.
"Series 2000-2 U.S. Dollar Accrued Interest Subaccount" shall have the
meaning assigned in Section 3.01(a) of the Series 2000-2 Supplement.
"Series Account" shall mean any deposit, trust, escrow, reserve or
similar account maintained for the benefit of the Investor Certificateholders
and the holders of the related Subordinated Company Interest of any Series or
Class, as specified in any Supplement.
"Series Class A Interest Shortfall" shall have the meaning assigned in
subsection 3A.04(b)(i) of the Series 2000-2 Supplement.
"Series Concentration Account" shall mean any account established by
the Trustee for the benefit of the Investor Certificateholders which is
established as a Series Concentration Account as contemplated in Section 3.01(a)
of the Pooling Agreement.
"Series Concentration Subaccount" shall have the meaning assigned to
such term in subsection 3.01(a) of the Pooling Agreement.
"Series Non-Principal Concentration Subaccount" shall have the meaning
assigned in subsection 3.01(a) of the Pooling Agreement.
"Series Principal Concentration Subaccount" shall have the meaning
assigned in subsection 3.01(a) of the Pooling Agreement.
"Series Termination Date" shall have, with respect to any Series, the
meaning assigned in the related Supplement for such Series.
Annex X-65
"Servicer Advance" shall mean amounts deposited in any Approved
Currency by the Master Servicer out of its own funds into any Series
Concentration Account pursuant to Section 2.06 of the Servicing Agreement.
"Servicer Advanced Reimbursement Amount" means any amount received or
deemed to be received by the Master Servicer pursuant to Section 2.06 of the
Servicing Agreement and Section 3A.02 of the Pooling Agreement of a Servicer
Advance made out of its own funds.
"Servicer Guarantor" shall mean Huntsman International and its
successors and assigns.
"Servicer Transfer" shall have the meaning assigned in Section 6.01 of
the Servicing Agreement.
"Servicing Agreement" shall mean the Servicing Agreement, dated as of
December 21, 2000, among the Company, the Master Servicer, the Servicer
Guarantor and the Trustee, as such agreement may be amended, supplemented or
otherwise modified and in effect from time to time.
"Servicing Fee" shall have the meaning assigned to such term in
subsection 2.05(a) of the Servicing Agreement.
"Servicing Fee Percentage" shall mean 1.0% per annum.
"Servicing Guarantee" shall mean the Servicing Guarantee under Article
VII of the Servicing Agreement, executed by the Servicer Guarantor in favor of
the Company and the Trustee on behalf of the Trust for the benefit of the
Certificateholders.
"Servicing Reserve Ratio" shall mean, as of any Settlement Report Date
and continuing (but not including) until the next Settlement Report Date, an
amount (expressed as a percentage) equal to (i) the product of (A) the Servicing
Fee Percentage and (B) 2.0 times Days Sales Outstanding as of such earlier
Settlement Report Date divided by (ii) 360.
"Settlement Period" shall mean initially the period commencing
December 21, 2000 and ending on January 31, 2000. Thereafter, Settlement Period
shall mean each fiscal month of the Master Servicer.
"Settlement Report Date" shall mean, except as otherwise set forth in
the applicable Supplement, the 10th day of each calendar month or, if such 10th
day is not a Business Day, the next succeeding Business Day.
"Share" shall mean a share held in the Company as described in the
Limited Liability Company Agreement comprising all rights held and obligations
owed by the holder of such share under the terms of the Limited Liability
Company Agreement and applicable law.
Annex X-66
"Shareholder" shall mean a holder of Shares in the Company.
"Significant Subsidiary" shall mean a subsidiary of Huntsman
International whose assets comprise five percent (5%) or more of the
Consolidated Total Assets of Huntsman International and its consolidated
subsidiaries.
"Special Allocation Settlement Report Date" shall have the meaning
assigned to such term in subsection 3.01(e) of the Pooling Agreement.
"Special Obligor" shall mean (i) the Approved Obligor which has a
long-term rating of at least "A+"/"A1" by S&P and ▇▇▇▇▇'▇ respectively and (ii)
with respect to whom the percentage of the Principal Amount of the Eligible
Receivables in the Company which are due from such Obligor represents more than
8% of the total Principal Amount of all Eligible Receivables in the Company on
such date as reported on the Daily Report.
"Special Obligor Delinquency Ratio" shall mean, as of the last day of
each Settlement Period, and with respect to any Obligor which has been reported
as Special Obligor on the at least one Daily Report during the three prior
Settlement Periods (including the Settlement Period ended on such date), the
percentage equivalent of a fraction, the numerator of which shall be the
aggregate unpaid balance of Receivables from such Special Obligor contributed by
the Contributor to the Company (and with respect to which the Company has
granted a Participation and security interest to the Trust) that were thirty one
(31) to sixty (60) days past due during such Settlement Period, and the
denominator of which shall be the aggregate Principal Amount of Receivables from
such Special Obligor contributed by the Contributor to the Company (and with
respect to which the Company has granted a Participation and security interest
to the Trust) during the third prior Settlement Period (including the Settlement
Period ended on such date).
"Specified Bankruptcy Opinion Provisions" shall mean the factual
assumptions (including those contained in the factual certificate referred to
therein) and the actions to be taken by each U.S. Originator and the Company in
the legal opinion of ▇▇▇▇▇▇▇▇ Chance ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP relating to certain
bankruptcy matters delivered on each Issuance Date.
"Spot Rate" shall mean, as of any date of determination, the foreign
exchange rate provided by the FX Counterparty or the Trustee for which Pound
Sterling, Euro, or other Approved Currency can be exchange for United States
Dollars on such date of determination.
"Stamp Duty" shall mean a reference to any stamp, registration or
other transaction or documentary tax (including, without limitation, any penalty
or interest payable in connection with any failure to pay or any delay in paying
any of the same).
"Stamp Duty Group" shall mean each of the Company, Contributor and the
UK Originator.
Annex X-67
"Stamp Duty Program Cure Period" shall have the meaning assigned to
such term in Section 2.07(s) of the Pooling Agreement.
"Stamp Duty Reserve Account" shall mean the account established by the
Trustee pursuant to Section 3.01(a) of the Pooling Agreement.
"Standby Liquidation System" shall mean a system satisfactory to the
Liquidation Servicer by which the Liquidation Servicer will receive and store
electronic information regarding Receivables from the Master Servicer which may
be utilized in the event of a liquidation of the Receivables to be carried out
by the Liquidation Servicer.
"State/Local Government Obligor" shall mean any state of the United
States or local government thereof or any subdivision thereof or any agency,
department, or instrumentality thereof.
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority, domestic or foreign,
to which any Funding Agent is subject for new negotiable nonpersonal time
deposits in dollars of over $100,000 with maturities approximately equal to
three months. Statutory Reserves shall be adjusted automatically on and as of
the effective date of any change in any reserve percentage.
"Sterling" shall mean the legal currency of the United Kingdom.
"Subordinated Company Interests" shall mean in relation to any Series,
the entitlement to receive the amounts which are specified in the relevant
Supplement as being payable to the holder of the Subordinated Company Interests
for the Series concerned; such amounts designated to be paid out of the relevant
Series Concentration Accounts and any subaccounts thereof, in each case to the
extent not required to be distributed to or for the benefit of the VFC
Certificateholder of the relevant Series.
"Subordinated Interest Amount" shall have, with respect to any
Outstanding Series, the meaning assigned in the related Supplement for such
Outstanding Series.
"Subordinated Interest Register" shall have the meaning assigned to
such term in subsection 5.11(d) of the Pooling Agreement.
"Subordinated Loan" shall mean a loan by the Contributor to the Trust
pursuant to Sections 5.01 and 11.16 of the Series 2000-1 Supplement or
equivalent provisions of any other Series Supplement.
"Subsidiary" shall mean, as to any Person, a corporation, partnership
or other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests having
such power only by reason of the happening of a contingency) to elect a majority
of the board of directors or
Annex X-68
other managers of such corporation, partnership or other entity are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person.
"Successor Master Servicer" shall mean (a) prior to the occurrence of
a Master Servicer Default, a Person nominated by the Master Servicer or a Person
appointed by the Trustee or a Person which, at the time of its appointment as
Servicer (i) is legally qualified and has the corporate power and authority to
service the Receivables participated to the Trust, and (ii) has demonstrated the
ability to service a portfolio of similar receivables in accordance with high
standards of skill and care in the sole determination of the Master Servicer (b)
following the occurrence of a Master Servicer Default, from the Liquidation
Servicer Commencement Date, PricewaterhouseCoopers as the Liquidation Servicer;
provided that no such Person shall be an Successor Servicer if it is a direct
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competitor of Huntsman (Europe) BVBA or any Significant Subsidiary.
"Supplement" shall mean, with respect to any Series, a supplement to
the Pooling Agreement complying with the terms of the Pooling Agreement,
executed by the Company, the Master Servicer, the Trustee, the Servicer
Guarantor and other parties listed therein in conjunction with the issuance of
any Series.
"Target Receivables Amount" shall have, with respect to any
Outstanding Series, the meaning specified in the related Supplement, or Annex of
definitions relating thereto, as the Series Target Receivables Amount for such
Outstanding Series.
"Tax Opinion" shall mean, unless otherwise specified in the Supplement
for any Series with respect to such Series or any Class within such Series, with
respect to any action, an Opinion of Counsel of one or more outside law firms to
the effect that, for United States federal income tax purposes, (i) such action
will not adversely affect the characterization as debt of any Investor
Certificates of any Outstanding Series or Class not retained by the Company,
(ii) in the case of Section 5.11 of the Pooling Agreement, the Investor
Certificates of the new Series that are not retained by the Company will be
characterized as debt and (iii) the Trust will be disregarded as an entity
separate from the Company for U.S. federal income tax purposes.
"Taxes" shall mean any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority.
"Termination Notice" shall have the meaning assigned to such term in
Section 6.01 of the Servicing Agreement.
"Timely Payment Discount" shall mean, for the purposes of determining
the Aggregate Receivables Amount, an aggregate amount of cash discounts relating
to the Receivables contributed by the Contributor to the Company (directly or
indirectly), and granted by the Originators to the Obligors for prompt payment
in accordance with a Contract.
Annex X-69
"Tioxide Americas" shall mean Tioxide Americas Inc., a corporation
organized under the laws of The Cayman Islands, and its successors and permitted
assigns.
"Tranche" shall have the meaning assigned to such term in the Series
2000-1 Asset Purchase Agreement.
"Transaction Documents" shall mean the collective reference to the
Pooling Agreement, the Servicing Agreement, each Supplement with respect to any
Outstanding Series, the Origination Agreements, the Investor Certificates and
any other documents delivered pursuant to or in connection therewith.
"Transaction Parties" shall have the meaning assigned to such term in
subsection 2.06(d) of the Series 2000-1 Supplement or Section 3.01 of the Series
2000-1 Asset Purchase Agreement.
"Transaction Supplement" shall have the meaning assigned to such term
in subsection 5.05(c) of the Asset Purchase Agreement.
"Transactions" shall mean the transactions contemplated under each of
the Transaction Documents.
"Transfer Agent and Registrar" shall have the meaning assigned to such
term in Section 5.03 of the Pooling Agreement and shall initially be the
Trustee.
"Transfer Deposit Amount" shall have the meaning assigned to such term
in subsection 2.05(b) of the Pooling Agreement.
"Transfer Effective Date" shall have the meaning assigned to such term
in the Series 2000-1 Asset Purchase Agreement.
"Transferred Agreements" shall have the meaning assigned to such term
in subsection 2.01(a)(vi) of the Pooling Agreement.
"Transferred Percentage" shall have the meaning specified in the form
of Transfer Supplement attached as Exhibit A to the Series 2000-1 Asset Purchase
Agreement.
"Trust" shall mean the Huntsman Master Trust created by the Pooling
Agreement.
"Trust Termination Date" shall have the meaning assigned in subsection
9.01(a) of the Pooling Agreement.
"Trustee" shall mean the institution executing the Pooling Agreement
as trustee, or its successor in interest, or any successor trustee appointed as
therein provided.
Annex X-70
"Trustee Force Majeure Delay" shall mean any cause or event that is
beyond the control and not due to the gross negligence of the Trustee that
delays, prevents or prohibits the Trustee's performance of its duties under
Article VIII of the Pooling Agreement, including acts of God, floods, fire,
explosions of any kind, snowstorms and other irregular weather conditions,
unanticipated employee absenteeism, mass transportation disruptions, any power
failure, telephone failure or computer failure in the office of the Trustee,
including without limitation, failure of the bank wire system utilized by the
Master Servicer or any similar system or failure of the Fed Wire system operated
by the Federal Reserve Bank of New York and all similar events. The Trustee
shall notify the Company as soon as reasonably possible after the beginning of
any such delay.
"Trustee Liens" shall mean any Liens in or on the Participation Assets
created by the Trustee.
"UCC" shall mean the Uniform Commercial Code, as amended from time to
time, as in effect in any specified jurisdiction.
"U.K. Originator" shall mean (i) Huntsman Europe and Huntsman (UK) and
(ii) after the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ date, any Approved Originator which
originates Receivables to Obligors located in the United Kingdom.
"UK Originator Daily Report" shall mean the report prepared by any UK
Originator and attached to any offer Letter and forming part of any offer made
by any UK Originator pursuant to Section 2.1 of the UK Receivables Purchase
Agreement substantially in the Form of Schedule 2 to the UK Receivables Purchase
Agreement;
"U.K. Receivables" shall mean the Receivables originated by a U.K.
Originator and sold to Huntsman International, then contributed, transferred,
assigned and conveyed to the Company and thereafter participated by the Company
to the Trust.
"U.K. Receivables Purchase Agreement" means the U.K. Receivables
Purchase Agreement dated as of December 20, 2000 between Huntsman Europe and
Huntsman (UK), as sellers and Huntsman International, as purchaser, as amended,
supplemented or otherwise modified from time to time in accordance with the
Transaction Documents.
"U.K. Tax Adviser" shall mean a reputable firm of lawyers of
international standing which habitually advises on transactions similar in type
and scale to the transactions reflected in the Transaction Documents and
including partners who:
(i) are solicitors of the Supreme Court of England and Wales; and
(ii) specialize in United Kingdom taxation (including stamp duty).
"U.K. Tax Opinion" shall mean the opinion of ▇▇▇▇▇▇▇▇ Chance Limited
Liability Partnership, dated December 21, 2000, relating to the United Kingdom
taxation treatment of the Company in connection with the transactions reflected
in the Transaction
Annex X-71
Documents and the application of United Kingdom stamp duty to certain Relevant
Documents.
"Unaccrued Discount" shall have the meaning assigned to such term in
the Series ▇▇▇▇-▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
"▇▇▇▇▇▇ ▇▇▇▇▇▇" for purposes of geographic description shall mean the
United States of America (including the States and the District of Columbia),
its territories, its possessions (including Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands) and
other areas subject to its jurisdictions.
"United States Person" means an individual who is a citizen or
resident of the United States, or a corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or an estate or trust the income of which is subject to
U.S. federal income taxation regardless of its source.
"U.S. Dollars" shall mean the legal currency of the United States of
America.
"U.S. Dollar Shortfall" has the meaning specified in Section
3.01(d)(ii) of the Pooling Agreement.
"U.S. Government Obligor" shall mean the United States government or
any subdivision thereof or any agency, department or instrumentality thereof.
"U.S. Originator" shall mean (i) Huntsman International, Tioxide
Americas, Huntsman Propylene and International Fuels and (ii) after the Series
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date, any Approved Originator which originates Receivables to
Obligors located in the United States of America.
"U.S. Receivables" shall mean the Receivables originated by a U.S.
Originator and contributed, transferred, assigned and conveyed to the Company
directly or indirectly and thereafter participated by the Company to the Trust.
"U.S. Receivables Purchase Agreement" means the U.S. Receivables
Purchase Agreement dated as of December 21, 2000, among Tioxide Americas, as a
seller, Huntsman Propylene, as a seller, International Fuels, as a seller and
Huntsman International, as purchaser, as amended, supplemented or otherwise
modified from time to time in accordance with the Transaction Documents.
"Variable Funding Certificate" or "VFC Certificate" shall have the
meaning assigned in Section 5.11(a) of the Pooling Agreement.
"VFC Certificate Income" shall have the meaning assigned to such term
in the Series 2000-1 Asset Purchase Agreement.
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"VFC Certificate Non-Income" shall have the meaning assigned to such
term in the Series 2000-1 Asset Purchase Agreement.
"Volume Rebate Accrual" shall mean, for the purposes of determining
the Aggregate Receivables Amount, the aggregate amount of outstanding Volume
Rebate balances of Receivables as of the last Business Day.
"Volume Rebate" shall mean a discount periodically granted by the
Originator to Obligor, as stipulated in the Contract for achieving certain sales
volume.
"Withdrawal Liabilities" shall mean liability to a Multiemployer Plan,
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
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