EXHIBIT 10.26
SERVICING AGREEMENT
Among
HUNTSMAN RECEIVABLES FINANCE LLC,
as the Company
HUNTSMAN (EUROPE) BVBA,
as Master Servicer
TIOXIDE AMERICAS INC,
HUNTSMAN ICI HOLLAND B.V.,
TIOXIDE EUROPE LIMITED,
HUNTSMAN INTERNATIONAL LLC,
HUNTSMAN PETROCHEMICALS (UK) LIMITED,
HUNTSMAN PROPYLENE OXIDE LTD.,
HUNTSMAN INTERNATIONAL FUELS L.P.,
as Local Servicers
CHASE MANHATTAN BANK (IRELAND) plc,
as Trustee
PRICEWATERHOUSECOOPERS,
as Liquidation Servicer
and
HUNTSMAN INTERNATIONAL LLC,
as Servicer Guarantor
Dated as of December 21, 2000
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS................................................... 3
Section 1.01. Definitions.............................................. 3
Section 1.02. Other Definitional Provisions............................ 3
ARTICLE II ADMINISTRATION AND SERVICING OF RECEIVABLES................... 4
Section 2.01. Appointment of Master Servicer and Local Servicers;
Delegation............................................... 4
Section 2.02. Servicing Procedures..................................... 5
Section 2.03. Collections.............................................. 7
Section 2.04. Reconciliation of Deposits............................... 8
Section 2.05. Servicing Compensation................................... 9
Section 2.06. Advances by the Master Servicer.......................... 10
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE
MASTER SERVICER, LOCAL SERVICERS AND THE
SERVICER GUARANTOR............................................ 11
Section 3.01. Organization; Powers..................................... 11
Section 3.02. Authorization; No Conflict............................... 11
Section 3.03. Enforceability........................................... 12
Section 3.04. Governmental Approvals................................... 12
Section 3.05. Litigation; Compliance with Laws......................... 12
Section 3.06. Agreements............................................... 12
Section 3.07. No Master Servicer Default............................... 13
Section 3.08. Servicing Ability........................................ 13
Section 3.09. Location of Records...................................... 13
ARTICLE IV COVENANTS OF THE MASTER SERVICER AND THE
SERVICER GUARANTOR............................................ 13
Section 4.01. Delivery of Daily Reports................................ 13
Section 4.02. Delivery of Monthly Settlement Report.................... 14
Section 4.03. Delivery of Quarterly Master Servicer's Certificates..... 15
Section 4.04. Delivery of Independent Public Accountants' Letter
Related to Annual Review of Originator Daily Reports,
Daily Reports and Monthly Settlement Reports............. 15
i
TABLE OF CONTENTS
(continued)
Page
Section 4.05. Extension, Amendment and Adjustment of Receivables;
Amendment of Policies.................................... 16
Section 4.06. Protection of Holders' Rights............................ 17
Section 4.07. Security Interest........................................ 17
Section 4.08. Location of Records...................................... 17
Section 4.09. Visitation Rights........................................ 18
Section 4.10. Delivery of Financial Reports............................ 18
Section 4.11. Notices.................................................. 20
Section 4.12. Master Servicer's Conduct................................ 20
Section 4.13. Delivery of Information or Documents Requested by the
Company.................................................. 20
ARTICLE V OTHER MATTERS RELATING TO THE MASTER
SERVICER...................................................... 21
Section 5.01. Merger, Consolidation, etc............................... 21
Section 5.02. Indemnification of the Trust and the Trustee............. 21
Section 5.03. Master Servicer Not to Resign............................ 22
Section 5.04. Access to Certain Documentation and Information
Regarding the Receivables................................ 23
ARTICLE VI MASTER SERVICER DEFAULTS; MASTER SERVICER
TERMINATION................................................... 23
Section 6.01. Master Servicer Defaults................................. 23
Section 6.02. Trustee To Act; Appointment of Successor................. 27
Section 6.03. Waiver of Past Defaults.................................. 28
ARTICLE VII GUARANTY...................................................... 28
Section 7.01. Guaranty................................................. 28
Section 7.02. Scope of Guarantor's Liability........................... 29
Section 7.03. The Company and the Trustee's Right to Amend this
Agreement................................................ 29
Section 7.04. Waiver of Certain Rights by Guarantor.................... 29
Section 7.05. Master Servicer's Obligations to Guarantor and
Guarantor's Obligations to Master Servicer Subordinated.. 30
Section 7.06. Guarantor to Pay the Company and the Trustee's Expenses.. 31
ii
TABLE OF CONTENTS
(continued)
Page
Section 7.07. Reinstatement............................................ 31
ARTICLE VIII MISCELLANEOUS PROVISIONS...................................... 31
Section 8.01. Amendment................................................ 31
Section 8.02. Termination.............................................. 31
Section 8.03. Governing Law............................................ 32
Section 8.04. WAIVER OF TRIAL BY JURY AND SUBMISSION TO
JURISDICTION............................................. 32
Section 8.05. Notices.................................................. 33
Section 8.06. Counterparts............................................. 33
Section 8.07. Third-Party Beneficiaries................................ 33
Section 8.08. Merger and Integration................................... 33
Section 8.09. Headings................................................. 33
Section 8.10. No Set-Off............................................... 34
Section 8.11. No Bankruptcy Petition................................... 34
Section 8.12. Responsible Officer Certificates; No Recourse............ 34
Section 8.13. Consequential Damages.................................... 34
SCHEDULES
Schedule 1 Form of Quarterly Master Servicer's Certificate
Schedule 2 Form of Annual Agreed-Upon Procedures for Report Auditors
Schedule 3 Identification of (A) Company Concentration Accounts, (B)
Series Concentration Accounts, (C) Collection Accounts and
Master Collection Accounts and (D) Company Receipts Accounts
Schedule 4 Business Day/Local Business Day Schedule
Schedule 5 Location of Records
iii
SERVICING AGREEMENT, dated as of December 21, 2000 (this "Agreement")
---------
among (i) HUNTSMAN RECEIVABLES FINANCE LLC, a limited liability company
organized under the laws of the State of Delaware (the "Company"), HUNTSMAN
-------
(EUROPE) BVBA, a company organized under the laws of Belgium, as the master
servicer (the "Master Servicer"), (ii) HUNTSMAN INTERNATIONAL LLC, a Delaware
---------------
limited liability company, TIOXIDE AMERICAS, INC., a company organized under the
laws of the Cayman Islands, HUNTSMAN PROPYLENE OXIDE LTD., a limited partnership
organized under the laws of Texas; HUNTSMAN INTERNATIONAL FUELS L.P., a limited
partnership organized under the laws of Texas, HUNTSMAN ICI HOLLAND B.V., a
limited liability company organized under the laws of the Netherlands, TIOXIDE
EUROPE LIMITED, a corporation organized under the laws of England and Wales and
HUNTSMAN PETROCHEMICALS (UK) LIMITED, a corporation organized under the laws of
England and Wales, as Local Servicers (defined below) (iii) HUNTSMAN
INTERNATIONAL LLC, a limited liability company established under the laws of the
State of Delaware, as Servicer Guarantor (the "Servicer Guarantor" and, from
------------------
time to time "Huntsman International", and (iv) CHASE MANHATTAN BANK (IRELAND)
----------------------
plc selected, not in its individual capacity, but solely as trustee (in such
capacity, the "Trustee") and (v) PRICEWATERHOUSECOOPERS as Liquidation Servicer
-------
(the "Liquidation Servicer").
--------------------
W I T N E S S E T H:
WHEREAS, Tioxide Americas Inc., Huntsman Propylene Oxide Ltd. and
Huntsman International Fuel L.P. (each a "U.S. Originator" and together the
---------------
"U.S. Originators") and Huntsman International have entered into a Receivables
-----------------
Purchase Agreement, dated as of the date hereof (the "U.S. Receivables Purchase
-------------------------
Agreement");
---------
WHEREAS, pursuant to the U.S. Receivables Purchase Agreement, the U.S.
Originator may sell to Huntsman International and Huntsman International may
purchase from the U.S. Originator all of the U.S. Originator's right, title and
interest in, to and under all Receivables now existing and hereafter arising
from time to time and other U.S. Receivable Assets (as defined in the U.S.
Receivables Purchase Agreement) related to such Receivables;
WHEREAS, Huntsman ICI Holland B.V. (the "Dutch Originator") and
----------------
Huntsman International have entered into a Receivables Purchase Agreement, dated
as of the date hereof (the "Dutch Receivables Purchase Agreement");
------------------------------------
WHEREAS, pursuant to the Dutch Receivables Purchase Agreement, the
Dutch Originator may sell to Huntsman International and Huntsman International
may purchase from the Dutch Originator, all of the Dutch Originator's right,
title and interest in, to and under all Receivables now existing and hereafter
arising from time to time and other Dutch Receivable Assets (as defined in the
Dutch Receivables Purchase Agreement) related to such Receivables;
WHEREAS, Tioxide Europe Limited and Huntsman Petrochemicals (UK)
Limited (together, the "U.K. Originators") and Huntsman International have
----------------
entered into a Receivables Purchase Agreement, dated as of the date hereof (the
"U.K. Receivables Purchase Agreement" and, together with the Dutch Receivables
-----------------------------------
Purchase Agreement, the "European Receivables Purchase Agreements");
----------------------------------------
WHEREAS, pursuant to the U.K. Receivables Purchase Agreement, each
U.K. Originator may sell to Huntsman International and Huntsman International
may purchase from such U.K. Originator, all of such U.K. Originators' right,
title and interest in, to and under all Receivables now existing and hereafter
arising from time to time and other U.K. Receivable Assets (as defined in the
U.K. Receivables Purchase Agreement) related to such Receivables;
WHEREAS, Huntsman International (collectively with the U.S.
Originator, the Dutch Originator and the U.K. Originators, the "Originators")
-----------
and the Company have entered into a contribution agreement dated as of the date
hereof (the "Contribution Agreement" and, collectively with the Receivables
----------------------
Purchase Agreements, the "Origination Agreements");
----------------------
WHEREAS, pursuant to the Contribution Agreement, Huntsman
International desires to transfer, contribute and assign from time to time all
of its right, title and interest in, to and under all the Receivables purchased
from the Originators, as well as the Receivables originated by Huntsman
International, now existing and hereafter arising from time to time and other
Receivables Assets related to such Receivables to the Company as a capital
contribution;
WHEREAS, the Company, the Master Servicer and the Trustee have entered
into the Pooling Agreement dated as of the date hereof (the "Pooling
-------
Agreement");
---------
WHEREAS, pursuant to the Pooling Agreement, (i) the Company shall
grant to the Trust, and the Trust will receive from the Company, a Participation
(without effecting any transfer or conveyance of any right, title or interest
thereunder) in the Company's right, title and interest in, to and under the
Receivables, and the related Receivable Assets and other Participation Assets
owned by the Company and the Origination Agreements, and (ii) the Company grants
to the Trust a security interest in all of its right, title and interest in, to
and under the Receivables and the related Receivable Assets and the Origination
Agreements; and
WHEREAS, pursuant to the Letter Agreement, between the Liquidation
Servicer and the Trustee (the "Liquidation Servicer Agreement"), the Liquidation
------------------------------
Servicer may become a Successor Master Servicer under this Servicing Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
2
ARTICLE I
DEFINITIONS
-----------
Section 1.01. Definitions. Capitalized terms used herein shall, unless
-----------
otherwise defined or referenced herein, have the meanings assigned to such terms
in Annex X attached to the Pooling Agreement which Annex X is incorporated by
reference herein.
Section 1.02. Other Definitional Provisions.
-----------------------------
(a) All terms defined in this Agreement (directly or by
incorporation by reference pursuant to Section 1.01) shall have the defined
meanings when used in any certificates 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 (directly or by incorporation by reference pursuant to Section 1.01) and
------------
accounting terms partly defined herein (directly or by incorporation by
reference pursuant to Section 1.01), 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 and Exhibit references contained in this Agreement are
references to Sections, subsections, Schedules and Exhibits 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, the feminine and the neuter genders of such
terms.
(e) Where reference is made in this Agreement to the principal
amount of Receivables, such reference shall, unless explicitly stated otherwise,
be deemed a reference to the Principal Amount of such Receivables.
(f) Any reference herein or in any other Transaction Document
to a provision of the Code, 1940 Act, ERISA or the applicable UCC shall be
deemed to be also a reference to any successor provision thereto.
(g) Any reference herein to a Schedule or Exhibit to this
Agreement shall be deemed to be a reference to such Schedule or Exhibit as it
may be amended, modified or supplemented from time to time to the extent that
such Schedule or
3
Exhibit may be amended, modified or supplemented (or any term or provision of
any Transaction Document may be amended that would have the effect of amending,
modifying or supplementing information contained in such Schedule or Exhibit) in
compliance with the terms of the Transaction Documents.
(h) Any reference in this Agreement to any representation,
warranty or covenant "deemed" to have been made is intended to encompass only
representations, warranties or covenants that are expressly stated to be
repeated on or as of dates following the execution and delivery of this
Agreement, and no such reference shall be interpreted as a reference to any
implicit, inferred, tacit or otherwise unexpressed representation, warranty or
covenant.
(i) The words "include", "includes" or "including" shall be
interpreted as if followed, in each case, by the phrase "without limitation".
ARTICLE II
ADMINISTRATION AND SERVICING OF RECEIVABLES
-------------------------------------------
Section 2.01. Appointment of Master Servicer and Local Servicers;
---------------------------------------------------
Delegation. (a) The Company hereby appoints the Master Servicer to act as, and
----------
the Master Servicer hereby accepts its appointment and agrees to act as, Master
Servicer under the Pooling and Servicing Agreements. The Master Servicer shall
have responsibility for the management of the servicing and receipt of
Collections in respect of the Receivables originated by the Originators. The
Master Servicer shall have the authority to make any management decisions
relating to each Receivable to the extent such authority is granted to the
Master Servicer hereunder and under any Pooling and Servicing Agreement. Unless
and until the Master Servicer has been replaced as Master Servicer in accordance
with the provisions hereof, the Company, the Trustee and the Holders shall treat
the Master Servicer as Master Servicer and may conclusively rely on the
instructions, notices and reports of the Master Servicer for so long as the
Master Servicer continues in its appointment as Master Servicer.
(b) In addition to the appointment of each of the Local
Servicers pursuant to Section 2.01(c), and without limiting the generality of
Section 2.02 and subject to Section 6.02, the Master Servicer is hereby further
------------ ------------
authorized and empowered to delegate or assign any or all of its servicing,
collection, enforcement and administrative duties hereunder with respect to the
Receivables to one or more Persons who agree to conduct such duties in
accordance with the Policies; provided, however, that, with respect to any such
-------- -------
Person, the Master Servicer shall give prior written notice to the Company, the
Trustee, each Funding Agent and the Rating Agencies prior to any such delegation
or assignment. Prior to such delegation or assignment being effective, the
Master Servicer shall have received notice that the Rating Agency Condition
shall be satisfied after giving effect to such delegation or assignment and the
written consent of the Company, the Trustee and each Funding Agent to such
delegation or assignment shall have been obtained. No delegation or assignment
of duties by the Master Servicer
4
permitted hereunder shall relieve the Master Servicer of its liability and
responsibility with respect to such duties.
(c) In order to perform the obligations hereunder, the Master
Servicer shall appoint each Originator as a local servicer (in such capacity,
"Local Servicer") for the Receivables generated by such Originator. References
---------------
to the servicing covenants, duties and obligations of the Master Servicer
hereunder shall also be deemed to refer to the Local Servicers' covenants,
duties and obligations; provided, however, that in the event that a Local
-------- -------
Servicer shall resign or be removed from their position, unless an alternate
Local Servicer can be found, the Master Servicer shall itself service the
Receivables previously serviced by such Local Servicer.
(d) Each of the Local Servicers shall manage the servicing and
administration of Receivables originated by it, the collection of payments due
under such Receivables, the preparation and submission of the Originator Daily
Report, and the charging off of any such Receivables as uncollectible, all in
accordance with the Policies and the terms of the Pooling and Servicing
Agreements. Notwithstanding any of the foregoing or any other provision
contained herein, the preparation, delivery and submission of the UK Originator
Daily Reports shall solely be made in accordance with the UK Receivables
Purchase Agreement and in accordance with Section 4.01 of this Agreement and
only the Master Servicer will (among other things), manage the preparation and
submission of the Daily Reports.
Section 2.02. Servicing Procedures.
--------------------
(a) The Master Servicer shall have full power and authority,
acting alone or through any party properly designated by it hereunder, to do any
and all things in connection with such servicing and administration that it may
deem necessary or desirable, but subject to the terms of this Agreement and the
other Transaction Documents. Without limiting the generality of the foregoing
and subject to Section 6.01, the Master Servicer or its designee is hereby
------------
authorized and empowered (i) to execute and deliver, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Receivables and, after the
delinquency of any Receivable and to the extent permitted under and in
compliance with the Policies and with applicable Requirements of Law, to
commence enforcement proceedings with respect to Receivables and (ii) to make
any filings, reports, notices, applications, registrations with, and to seek any
consents or authorizations from the Securities and Exchange Commission, any
state securities authority and any foreign securities authority on behalf of the
Trust as may be necessary or advisable to comply with any Federal, state or
foreign securities or reporting requirements or laws.
(b) Without limiting the generality of the foregoing and
subject to Section 6.02, the Master Servicer or its designee is hereby
------------
authorized and empowered to give written direction to the Trustee with respect
to transfers within and withdrawals from the Company Concentration Accounts and
payments to the Company Receipts
5
Accounts (which directions may be in the form of a Daily Report) and as
otherwise specified in the Pooling and Servicing Agreements.
(c) The Master Servicer or its designee shall, at its cost and
expense and as agent for the Company, collect, and in accordance with the
Policies, as and when the same becomes due, the amount owing on each Receivable.
The Master Servicer or its designee shall not make any material change in its
administrative, servicing and collection systems that deviates from the
Policies, except as expressly permitted by the terms of the Pooling and
Servicing Agreements and after giving written notice to the Trustee of any such
change. In the event of default under any Receivable, the Master Servicer or its
designee shall have the power and authority, on behalf of the Company, to take
such action in respect of such Receivable as the Master Servicer or its designee
may deem advisable. In the enforcement or collection of any Receivable, the
Master Servicer or its designee shall be entitled, but not required, to ▇▇▇
thereon in (i) its own name or (ii) if, but only if, the Company consents in
writing (which shall not be unreasonably withheld), as agent for the Company. In
no event shall the Master Servicer or its designee be entitled to take any
action that would make the Company, the Trustee, any Funding Agent or any
Investor Certificateholder a party to any litigation without the express prior
written consent of such Person.
(d) Except as provided in any Pooling and Servicing
Agreements, neither the Master Servicer or its designee nor the Liquidation
Servicer or any Successor Master Servicer shall be obligated to use separate
servicing procedures, offices, employees or accounts for servicing the
Receivables transferred to the Company from the procedures, offices, employees
and accounts used by the Master Servicer or a Successor Master Servicer, as the
case may be, in connection with servicing other receivables.
(e) The Master Servicer or its designee shall comply with and
perform its servicing obligations with respect to the Receivables in accordance
with the Contracts relating to the Receivables and the Policies.
(f) The Master Servicer or its designee shall not take any
action to cause any U.S. Receivable not evidenced by any "instrument" or which
does not constitute "chattel paper" (each as defined under the applicable UCC or
other similar applicable law, statute or legislation) upon origination to become
evidenced by an "instrument" or become "chattel paper" and the Master Servicer
or its designee shall not take any action to cause any interest in any U.S.
Receivable to be evidenced by any title documents in bearer form, except in
connection with its enforcement or collection of such Receivable. If any U.S.
Receivable is evidenced by an "instrument" or "chattel paper" (as defined under
the applicable UCC), the Master Servicer or its designee shall either (i)
deliver such instrument or title documents to the Trustee as soon as reasonably
practicable, but in no event more than three (3) calendar days after execution
thereof or (ii) immediately stamp the Contract relating to such Receivable in
red with words substantially to the following effect: "THIS RECEIVABLE HAS BEEN
PLEDGED TO CHASE MANHATTAN BANK (IRELAND) plc AS TRUSTEE PURSUANT TO THE
6
TERMS AND CONDITIONS OF THE POOLING AGREEMENT, DATED AS OF DECEMBER 21, 2000,
AMONG HUNTSMAN RECEIVABLES FINANCE, LLC, HUNTSMAN (EUROPE) BVBA AND CHASE
MANHATTAN BANK (IRELAND) plc."
Section 2.03. Collections.
-----------
(a) Obligors shall have been instructed to make all payments
in respect of the Receivables to one of the Collection Accounts. Each of the
Company and the Master Servicer represents, warrants and agrees that all
Collections shall be collected, processed and deposited by it pursuant to, and
in accordance with the terms of, the Pooling and Servicing Agreements. Without
limiting the generality of the foregoing, the Master Servicer shall comply with
the provisions of subsection 3.01(d) of the Pooling Agreement as to remittance
------------------
of funds available in any Collection Account or Master Collection Account. All
Collections in the Collection Accounts or Master Collection Accounts shall be
transferred to the applicable Company Concentration Accounts by no later than
12:30 p.m. London time on the next Business Day following the day of receipt of
Collections in the Collection Accounts. In the event that any payments in
respect of any Receivable are made directly to the Master Servicer or any Local
Servicer, the Master Servicer or the Local Servicer shall, within one (1)
Business Day of receipt thereof, deliver or deposit such amounts to the
appropriate currency Company Concentration Account and, prior to forwarding such
amounts, the Master Servicer or the Local Servicer shall hold such payments on
behalf of the Company.
(b) The Master Servicer shall administer amounts on deposit in
the Collection Accounts and the Master Collection Accounts in accordance with
the terms hereof and in the Pooling and Servicing Agreements. The Trustee (at
the direction of the Master Servicer) shall administer amounts on deposit in the
Company Concentration Accounts in accordance with the terms of the Pooling and
Servicing Agreements. Each of the Company and the Master Servicer acknowledges
and agrees that (i) it shall not have any right to withdraw any funds on deposit
in any Collection Account and the Master Collection Account except pursuant to
the terms hereof and the Pooling and Servicing Agreements and (ii) all amounts
deposited in any Company Concentration Account shall be under the sole dominion
and control of the Trustee (in each case pursuant to the security interest
granted by the Company under the Pooling Agreement), subject to the Master
Servicer's rights to direct the applications and transfers of any such amounts
as provided by the terms of any Pooling and Servicing Agreements, such
directions to be included in the Daily Report.
(c) 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 have been deposited into a Collection
Account, such Collections shall be
7
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, such
transfers to be made in accordance with Section 3.01(d)(vii) of the Pooling
Agreement. 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) of the Pooling Agreement, as applicable.
------- -------
(d) The Master Servicer hereby agrees that if the Master
Servicer can attribute a Collection to a specific Obligor and a specific
Receivable, then such collection shall be applied to pay such Receivable of such
Obligor; provided, however, that if the Master Servicer cannot attribute a
-------- -------
Collection to a specific Receivable, then such Collection shall be applied to
pay the Receivables of such Obligor in the order of maturity of such
Receivables, beginning with the Receivable that has been outstanding the longest
period of time and ending with the Receivable that has been outstanding the
shortest period of time.
(e) The Master Servicer shall procure the Forward Rates from
the FX Counterparty or the Funding Agent in order to prepare the Daily Report
and the Monthly Settlement Report and the Company shall procure the Spot Rates
from the FX Counterparty or the Funding Agent in order to make the distributions
from the Series Concentration Accounts set forth in Sections 3.01(d), (e), (f),
(g) and (h) of the Pooling Agreement.
Section 2.04. Reconciliation of Deposits. If in respect of Collections
--------------------------
on account of a Receivable, the Master Servicer deposits into a Collection
Account, or a Company Concentration Account (a) a check that is not honored for
any reason or (b) an amount that is less than or more than the actual amount of
such Collections, the Master Servicer shall, in lieu of making a reconciling
withdrawal or deposit, as the case may be, adjust the amount subsequently
deposited into such Collection Account or Company Concentration Account to
reflect such dishonored check or deposit mistake. Any Receivable in respect of
which a dishonored check is received shall be deemed not to have been paid;
provided, that no adjustments made pursuant to this Section 2.04 shall change
-------- ------------
any amount previously reported pursuant to Section 4.02.
------------
Section 2.05. Servicing Compensation.
----------------------
(a) Prior to the Liquidation Servicer Commencement Date, as
compensation for the administration and servicing activities hereunder and
reimbursement for the expenses set forth in subsection 2.05(b), each Local
------------------
Servicer and Master Servicer shall be entitled to receive on each Distribution
Date in arrears, for the preceding Settlement Period prior to the termination of
the Trust pursuant to Section 9.01 of the Pooling Agreement, a portion
------------
(expressed as a percentage) of a servicing fee (the "Servicing Fee"), which
-------------
shall be a maximum amount equal to the product of (A) the
8
Servicing Fee Percentage, (B)(i) the average aggregate Principal Amount of the
Receivables for such Settlement Period or (ii) with respect to the initial
Accrual Period, the average aggregate Principal Amount of the Receivables from
(and including) the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date to (but excluding) the last day
of the initial Settlement Period and (C) the number of days in such Settlement
Period divided by 360. The Company and the Initial Master Servicer may from time
------- --
to time agree in writing to a reduced Servicing Fee. If there is a Master
Servicer Default and a Successor Master Servicer Default is appointed by the
Trustee, the servicing fee for such Successor Master Servicer shall be the fee
agreed upon between the Trustee and such Successor Master Servicer; provided,
however, that such servicing fee shall not exceed the maximum Servicing Fee
payable hereunder to the Master Servicer. The servicing fee payable to the
Liquidation Servicer shall be the Liquidation Servicing Fee. Except as otherwise
set forth in the related Supplement, the share of the Servicing Fee allocable to
Certificates of each Outstanding Series for any Settlement Period shall be an
amount equal to the product of (i) the Servicing Fee for such Settlement Period
and (ii) a fraction (expressed as a percentage) (A) the numerator of which is
the daily average Invested Amount for such Settlement Period with respect to
such Outstanding Series and (B) the denominator of which is the daily average
Aggregate Invested Amount for such Settlement Period (with respect to any such
Series, the "Monthly Servicing Fee"). The Master Servicer (acting in such
---------------------
capacity) shall be entitled to 10% of the Servicing Fee. Each Local Servicer
shall be entitled to receive a percentage of the remaining Servicing Fee in an
amount equal to the percentage obtained by dividing the aggregate Principal
Amount of Eligible Receivables sold by such Local Servicer to the Contributor by
the Aggregate Receivables Amount. The Servicing Fee shall be payable to such
Local Servicers and the Master Servicer solely pursuant to the terms of, and to
the extent amounts are available for payment under, Article III of the Pooling
Agreement. Any such fee which is payable to a Local Servicer belonging in the
United Kingdom shall be inclusive of United Kingdom value added tax and the
application of Section 89 of the United Kingdom Value Added Tax Act 1994 shall
be excluded in relation to such fee.
(b) The Company hereby directs the Master Servicer to pay
amounts due to the Liquidation Servicer, in the event it has been appointed a
Successor Master Servicer, including the Liquidation Servicer's reasonable out-
of-pocket expenses relating to the Liquidation Servicer's inspections, if any,
of the Master Servicer's servicing facilities which inspections shall occur not
more frequently than once per calendar year (or, following the commencement and
continuation of an Early Amortization Period), such inspection shall occur at
the discretion of the Liquidation Servicer. The Liquidation Servicer shall
ensure that the Liquidation Servicer has (i) completed the Master Servicer Site
Review and (ii) reviewed the Master Servicer's Standby Liquidation System and
confirmed to the Trustee that such system is operating to the Liquidation
Servicer's satisfaction within sixty (60) days following the Effective Date;
provided, however, that in no event shall the Master Servicer or the Liquidation
-------- -------
Servicer, in the event it has been appointed a Successor Master Servicer, be
liable for any Federal, state or local income or franchise tax, or any interest
or penalties with respect thereto, assessed on the Trust, the Trustee or the
Investor Certificateholders or the
9
Liquidation Servicer except in accordance with Section 5.02 and as otherwise
------------
expressly provided herein. Notwithstanding anything to the contrary herein or in
any other Pooling and Servicing Agreements, in the event that the Master
Servicer fails to pay any amount due to the Liquidation Servicer pursuant to
Section 8.05 of the Pooling Agreement, or following the commencement and
------------
continuation (for a period greater than any applicable grace period) of an Early
Amortization Period, the Liquidation Servicer shall be entitled, in addition to
any other rights it may have under law and under the Pooling Agreement, to
receive directly such amounts owing to it under the Pooling and Servicing
Agreements from, and in the same order of priority as, the Servicing Fee before
payment to the Master Servicer or Local Servicer of any portion thereof. The
Master Servicer shall be required to pay expenses for its own account and shall
not be entitled to any payment therefor other than the Servicing Fee. Nothing
contained herein shall be construed to limit the obligation of the Master
Servicer or the Company to pay any amounts due to the Liquidation Servicer
pursuant to Section 8.05 of the Pooling Agreement. Other than as provided herein
------------
or in any other Transaction Document, the Trustee may not set-off or apply funds
except as permitted by Article III of the Pooling Agreement or any Supplement
thereto and the Trustee hereby agrees that it shall have no right of setoff or
banker's lien against, and no right to otherwise deduct from, the Servicing Fee
for any amount owed to it by the Master Servicer, in its capacities the Master
Servicer or otherwise, pursuant to the Transaction Documents.
Section 2.06. Advances by the Master Servicer
-------------------------------
(a) The Master Servicer to the extent it determines that such
Advance would be recoverable from subsequent Collections may deposit into the
applicable Series Concentration Principal Subaccounts monies in an Approved
Currency in an amount equal to any projected liquidity shortfall as determined
by the Master Servicer. The Master Servicer shall set forth in the Daily Report
and the Monthly Settlement Report the amount of all Servicer Advances made by
the Master Servicer during the related reporting period.
(b) On each Distribution Date, the Trustee shall reimburse the
Master Servicer for the Outstanding Amount Advanced in accordance with the
provisions of each Supplement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE MASTER SERVICER, LOCAL SERVICERS AND THE
------------------------------------------------------------------------------
SERVICER GUARANTOR
------------------
As of (a) the date hereof and (b) each Issuance Date, each of the
Master Servicer, each Local Servicer and the Servicer Guarantor hereby severally
makes the following representations and warranties to the Company and the
Trustee:
Section 3.01. Organization; Powers. It (i) is duly organized or
--------------------
formed, validly existing and in good standing under the laws of the jurisdiction
of its formation or
10
organization, (ii) has all requisite power and authority to own its property and
assets and to carry on its business as now conducted and as proposed to be
conducted, (iii) is qualified to do business in, and is in good standing in,
every jurisdiction where the nature of its business so requires, except where
the failure so to qualify could not reasonably be expected to result in a
Material Adverse Effect with respect to it and (iv) has the power and authority
to execute, deliver and perform its obligations under each of the Transaction
Documents and each other agreement or instrument contemplated hereby or thereby
to which it is or will be a party.
Section 3.02. Authorization; No Conflict. The execution, delivery and
--------------------------
performance by it of each of the Transaction Documents to which it is a party
and performance of the Transactions contemplated thereby (i) have been duly
authorized by all requisite corporate and, if applicable and required,
stockholder, member or partner action as applicable and (ii) will not (A)
violate (1) any Requirement of Law applicable to it or (2) any provision of any
Transaction Document or other material Contractual Obligation to which it is a
party or by which it or any of its property is or may be bound, (B) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, or give rise to any right to accelerate
or to require the prepayment, repurchase or redemption of any obligation under
any Transaction Document or any other material Contractual Obligation to which
it is a party or by which its property is or may be bound, except where any such
conflict, violation, breach or default referred to in clause (A) or (B),
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect with respect to it, or (C) result in the creation or
imposition of any Lien upon the Receivables (other than Permitted Liens and any
Lien created under the Transaction Documents or contemplated or permitted
thereby).
Section 3.03. Enforceability. This Agreement and each other
--------------
Transaction Document to which it is a party has been duly executed and delivered
by it and constitutes a legal, valid and binding obligation enforceable against
it in accordance with such document's 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).
Section 3.04. 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 Transactions, except for
(i) the filing of UCC financing statements (or other applicable similar filings)
in any applicable jurisdictions necessary to perfect the Company's ownership
interest in the Receivables and the Trust's Participation and security interest
in the Receivables, and (ii) such as have been made or obtained and are in full
force and effect.
11
Section 3.05. Litigation; Compliance with Laws.
--------------------------------
(a) 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 (i) in connection with the execution and
delivery of the Transaction Documents and the consummation of the Transactions
contemplated thereunder or (ii) as to which there is a reasonable possibility of
an adverse determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect with respect to it.
(b) It is not in default with respect to any judgment, writ,
injunction, decree or order of any Governmental Authority, where such violation
or default could reasonably be expected to result in a Material Adverse Effect
with respect to it.
(c) It is not in default under or with respect to any
Requirement of Law applicable to the collection and servicing of Receivables
where such default would be reasonably likely to have a Material Adverse Effect
with respect to it.
Section 3.06. Agreements.
----------
(a) It is not a party to any agreement or instrument or subject
to any corporate, restriction in its organizational documents that has resulted
or could reasonably be expected to result in a Material Adverse Effect with
respect to it.
(b) It is not in default in any manner under any provision of
any Contractual Obligation to which it is a party or by which it or any of its
properties or assets are bound, where such default could reasonably be expected
to result in a Material Adverse Effect with respect to it.
Section 3.07. No Master Servicer Default. No Master Servicer Default
--------------------------
or Potential Master Servicer Default has occurred and is continuing.
Section 3.08. Servicing Ability. As of the related Issuance Date,
-----------------
there has not been since the date of this Agreement any adverse change in its
ability to perform its obligations as Master Servicer under any Transaction
Document to which it is a party.
Section 3.09. Location of Records. The office at which it keeps its
-------------------
records concerning any Receivables either is located (i) at the address set
forth in Schedule 5 of this Agreement or (ii) at another address of which the
Master Servicer has notified the Company and the Trustee in accordance with the
provisions of Section 4.08.
------------
12
ARTICLE IV
COVENANTS OF THE MASTER SERVICER AND THE SERVICER GUARANTOR
-----------------------------------------------------------
Section 4.01. Delivery of Daily Reports. Unless otherwise specified
-------------------------
in the Supplement with respect to any Series, on each Local Business Day and
with respect to each Outstanding Series, each Originator shall deliver to the
Master Servicer, a written report (an "Originator Daily Report" or in the case
-----------------------
of UK Originator the "UK Originator Daily Report") by 10 a.m. London time on the
--------------------------
Local Business Day following each date of sale or contribution of Receivables,
setting forth for such date of sale or offer, as the case may be a description
of Receivables sold or offered for sale, as the case may be to Huntsman
International. In the case of the UK Originators, each UK Originator Daily
Report shall be sent only to the Master Servicer at the same time as the making
of an offer in accordance with Section 2 of the U.K. Receivables Purchase
Agreement. Notwithstanding anything to the contrary in any of the Transaction
Documents, no UK Originator Daily report shall be produced except in accordance
with Section 2.1 of the UK Receivables Purchase Agreement and in accordance with
this Section 4.01. The Master Servicer shall, immediately upon receipt of such
UK Originator Daily Report and the related Offer Letter (all in accordance with
Section 2.1 of the U.K. Receivables Purchase Agreement): (A) transmit a copy of
such UK Originator Daily Report and Offer Letter to Huntsman International; (B)
print out such UK Originator Daily Report and Offer Letter in full; (C) when the
printing out referred to in (B) above has been completed, notify Huntsman
International that it has received a copy of such Daily Report and the related
Offer Letter and has printed out the same in full; and (D) provide a copy of
such notification referred to in (C) above to the Trustee and Funding Agent. No
such notification shall be sent to the Company. In no event shall any
Originator Daily Report be signed by any party; provided, however that delivery
-------- -------
of such Report to the Master Servicer shall constitute a deemed representation
by such Originator that such Report is true and correct.
On each Business Day, the Master Servicer or its designee shall
deliver to the Trustee, the Liquidation Servicer and each Funding Agent no later
than 12:30 p.m. London time, a written report substantially in the form attached
as Exhibit B to the Pooling Agreement (the "Daily Report") setting forth, for
------------
such Business Day the amount of Aggregate Daily Collections appearing in the
Company Concentration Accounts, the amount of initial Collections received on
the previous Business Day (the "Reported Day") and appearing in the Collection
------------
Accounts; the amount of Receivables contributed by the Contributor to the
Company, and for which a Participation and security interest has been granted by
the Company to the Trust; the amount of Ineligible Receivables (if any)
identified on the Reported Day; the amount of Servicer Advances deposited in the
Series Principal Subaccount on such day, plus the total amount of Servicer
Advance outstanding and not yet repaid as of such date; and such other
information as the Company, the Trustee or such Funding Agent may reasonably
request. The Daily Report must be delivered in an electronic format mutually
agreed upon by the Master Servicer, the Liquidation Servicer, the Trustee and
the Funding Agent, or if such electronic copy is
13
not available, by facsimile (electronic form of such Daily Report to be provided
as soon as it is available). By delivery of a Daily Report, the Master Servicer
shall be deemed to have made a representation and warranty that all information
set forth therein is true and correct.
Section 4.02. Delivery of Monthly Settlement Report. Unless
-------------------------------------
otherwise specified in the Supplement with respect to any Outstanding Series,
the Master Servicer hereby covenants and agrees that it shall deliver to each
Funding Agent, the Liquidation Servicer, the Company, the Trustee and each
Rating Agency by 12:30 p.m. London time, on each Settlement Report Date, a
certificate of a Responsible Officer of the Master Servicer substantially in the
form of Exhibit C to the Pooling Agreement (a "Monthly Settlement Report")
-------------------------
setting forth, as of the last day of the Settlement Period most recently ended
and for such Settlement Period, to the best of the Master Servicer's knowledge,
(a) the information described in the form of the Monthly Settlement Report
including such changes as may be agreed to by the Master Servicer, the
Liquidation Servicer, the Company, the Trustee and each Funding Agent (if any)
and subject to satisfaction of the Rating Agency Condition (unless a Responsible
Officer of the Master Servicer certifies that such changes could not reasonably
be expected to have a material adverse effect on the interest of the Trust or
the Investor Certificateholders for the applicable Series under the Transaction
Documents), (b) a list of any Obligors or Approved Obligor Countries with debt
ratings that have been either reduced or withdrawn during such Settlement
Period, (c) the amount of Servicer Advances made by the Master Servicer during
the related Settlement Period and the Outstanding Amount Advanced as of the end
of the related Settlement Period and (d) such other information as the Trustee,
the Liquidation Servicer or any Funding Agent may reasonably request. Such
certificate shall include a certification by a Responsible Officer of the Master
Servicer (subject to Section 8.11 hereof) that, (i) to such Responsible
------------
Officer's knowledge, the information contained therein is true and correct in
all material respects and (ii) the Master Servicer has performed all of its
obligations in all material respects under each Transaction Document to which it
is a party throughout such preceding Settlement Period (or, if there has been a
default in the performance of any such obligation, specifying each such default
known to such Responsible Officer and the nature and status thereof). A copy of
each Monthly Settlement Report may be obtained by any Holder by a request in
writing to the Trustee addressed to the Corporate Trust Office. The Monthly
Settlement Report must be delivered in an electronic format mutually agreed upon
by the Master Servicer, the Trustee, the Liquidation Servicer and each Funding
Agent, or if such electronic copy is not available, by facsimile (electronic
form of such Monthly Settlement Report to be provided as soon as it becomes
available).
Section 4.03. Delivery of Quarterly Master Servicer's Certificates.
----------------------------------------------------
The Master Servicer or the Servicer Guarantor, as the case may be, shall deliver
to the Company, the Trustee, each Funding Agent and each Rating Agency, subject
to Section 8.11 hereof, a certificate of a Responsible Officer of the Master
------------
Servicer substantially in the form of Schedule 1 hereto, certifying that:
----------
14
(a) a review of its and the Company's activities during the
preceding calendar year (or in the case of the first such certificate issued
after the Effective Date, during the period from the Effective Date through and
including the last day of the preceding calendar quarter), and of its
performance under each Transaction Document was made under the supervision of
such Responsible Officer;
(b) to the best of such Responsible Officer's knowledge, based
on such review, it and the Company have each performed their respective
obligations in all material respects under each Transaction Document throughout
the period covered by such certificate (or, if there has been a material default
in the performance of any such obligation, specifying each such default known to
such Responsible Officer and the nature and status thereof); and
(c) to the best of such Responsible Officer's knowledge, each
Daily Report and Monthly Settlement Report was at the time when delivered
correct in all material respects.
Such certificate shall be delivered by the Master Servicer within 45
days after the end of each calendar year. A copy of each such certificate may
be obtained by any Holder by a request in writing to the Trustee addressed to
the Corporate Trust Office.
Section 4.04. Delivery of Independent Public Accountants' Letter
--------------------------------------------------
Related to Annual Review of Originator Daily Reports, Daily Reports and Monthly
-------------------------------------------------------------------------------
Settlement Reports. The Master Servicer shall, at the expense of the Master
------------------
Servicer cause Independent Public Accountants to furnish to the Company, the
Trustee, the Liquidation Servicer, each Funding Agent and each Rating Agency
within 120 days following the last day of the Master Servicer's fiscal year,
beginning with the fiscal year ending December 31, 2000, a letter to the effect
that such Independent Public Accountants have performed the agreed-upon
procedures set forth in Schedule 2 hereto relating to the (a) review of the
-----------
Master Servicer's performance related to (i) the preparation of the Daily
Reports and (ii) the preparation of the Monthly Settlement Reports, and (b)
review of the preparation of the Originator Daily Reports prepared by the
Originators, during the preceding fiscal year and describing such accountants'
findings with respect to such procedures. A copy of such report may be obtained
by any Holder by a request in writing to the Trustee addressed to the Corporate
Trust Office.
Section 4.05. Extension, Amendment and Adjustment of Receivables;
---------------------------------------------------
Amendment of Policies.
---------------------
(a) The Master Servicer hereby covenants and agrees with the
Company and the Trustee that it shall not extend, rescind, cancel, amend or
otherwise modify, or attempt or purport to extend, rescind, cancel, amend or
otherwise modify the terms of, or grant any Dilution Adjustment in respect of,
any Receivable, or otherwise take any action that is intended to cause or permit
a Receivable that is an Eligible Receivable to cease to be an Eligible
Receivable, except in any such case (a) (i) such cancellation, termination,
amendment, modification, or waiver is made in accordance
15
with the Servicing Standard set forth in Section 4.12 and in accordance with
------------
terms of 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
collectability of the relevant Receivable, or (b) such Dilution Adjustment is
the result of a pre-existing contractual obligation between the Contributor or
any Originator, as the case may be, and the related Obligor with respect to
such Receivable, provided, that in the event the Originator cancels an invoice
--------
related to a Receivable, the Originator must make an Originator Dilution
Adjustment Payment in accordance with Section 2.05 of the Origination Agreement,
------------
(iv) if the Master Servicer or the Originator cancels an invoice related to a
Receivable, either (1) such invoice must be replaced with an invoice relating to
the same transaction as the cancelled invoice of equal or greater Principal
Amount on the same day, (2) such invoice must be replaced with an invoice
relating to the same transaction as the cancelled invoice of a lesser Principal
Amount on the same Business Day and the Originator must make an Originator
Dilution Adjustment Payment to the Company, in an amount equal to the difference
between such cancelled and replacement invoices or (3) the Originator must make
an Originator Dilution Adjustment Payment to the Company in an amount equal to
the full value of such cancelled invoice pursuant to Section 2.05 of the
------------
Origination Agreement. Any Dilution Adjustment authorized to be made pursuant to
the preceding sentence shall result in the reduction, on the Business Day on
which such Dilution Adjustment arises or is identified, in the aggregate
Principal Amount of Receivables and if as a result of such a reduction the
Aggregate Target Receivables Amount exceeds the Aggregate Receivables Amount,
the Company (in addition to the obligations of the Originators under the related
Origination Agreement in respect of such Dilution Adjustment) will be required
to pay into relevant the Series Principal Concentration Subaccount with respect
to each Outstanding Series in immediately available funds, within one (1)
Business Day of such determination, the pro rata share for such Series (based on
a percentage equal to the Invested Amount for such Series divided by the
------- --
Aggregate Invested Amount) of the Cash Dilution Payment.
(b) The Master Servicer shall not change or modify the Policies
in any material respect, except (i) if such change or modification is necessary
under any Requirement of Law, (ii) if such change or modification would not
reasonably be expected to have a Material Adverse Effect or (iii) if the Rating
Agency Condition is satisfied with respect thereto. The Master Servicer shall
provide notice to the Company, the Trustee, each Funding Agent, the Liquidation
Servicer and each Rating Agency of any change or modification of the Policies.
(c) The Master Servicer shall perform its obligations in
accordance with and comply in all material respects with the Policies.
Section 4.06. Protection of Holders' Rights. The Master Servicer
-----------------------------
hereby agrees with the Company and the Trustee that it shall take no action, nor
intentionally
16
omit to take any action (provided that the Master Servicer shall have no
--------
obligation to make any payments on behalf of an Obligor that has defaulted under
any Receivable except to the extent otherwise required pursuant to Section 5.02)
------------
that would reasonably be expected to result in a Material Adverse Effect under
the Transaction Documents in respect of the Receivables or any Related Property,
nor shall it reschedule, revise or defer payments due on any Receivable except
in accordance with the Policies or Section 4.05 above.
------------
Section 4.07. Security Interest. The Master Servicer hereby
-----------------
covenants and agrees that it shall not sell, pledge, assign or transfer to any
other Person, or grant, create, incur, assume or suffer to exist any Lien (other
than Permitted Liens) on any Receivable, whether now existing or hereafter
created, or any interest therein, and the Master Servicer shall defend the
right, title and interest of the Company and the Trust in, to and under any
Receivable, whether now existing or hereafter created, against all claims of
third parties claiming through or under the Master Servicer or the Company.
Section 4.08. Location of Records. The Master Servicer hereby
-------------------
covenants and agrees that it (a) shall not move its chief executive office or
any of the offices where it keeps its records with respect to any Receivables
outside of the location specified in respect thereof on Schedule 3 to the
----------
related Origination Agreement, in any such case, without giving thirty (30) days
prior written notice to the Company, the Trustee, the Liquidation Servicer, each
Funding Agent and the Rating Agencies and (b) shall promptly take all actions
(including any filings under the UCC or other similar filings) required or
reasonably necessary in order to continue the valid and enforceable interest of
the Company and the Trust in all Receivables.
Section 4.09. Visitation Rights.
-----------------
(a) The Master Servicer shall, at any reasonable time during
normal business hours on any Local Business Day and from time to time, upon
reasonable prior notice, and as often as may reasonably be requested, subject to
their respective security and confidentiality requirements, (i) permit the
Company, the Trustee, the Liquidation Servicer, any Funding Agent or any of
their respective agents or representatives, (A) to examine and make copies of
and abstracts from its records, books of account and documents (including
computer tapes and disks) relating to the Receivables and (B) following the
occurrence of a Master Servicer Default or the termination of the Master
Servicer's appointment as Master Servicer to be present at its offices and
properties to administer and control the Collection of the Receivables and to
allow the Trustee and the Liquidation Servicer access to documents, instruments
and other records (including the documents, instruments and other records
required to be transferred to a successor pursuant to Section 6.01 upon a Master
------------
Servicer Transfer), equipment and personnel that are necessary to enable the
Liquidation Servicer or Successor Master Servicer, as applicable, to continue
servicing operations in accordance with the terms of the Transaction Documents
and (ii) permit the Company, the Trustee, any Funding Agent or any of their
respective agents or representatives to visit its properties to discuss its
affairs, finances and accounts relating to the Receivables or its
17
performance hereunder or under any of the other Transaction Documents to which
it is a party with any of its officers or directors and with its independent
certified public accountants.
(b) The Master Servicer shall provide the Trustee with such
other information as the Trustee may reasonably request in connection with the
fulfillment of the Trustee's obligations under any Pooling and Servicing
Agreements.
Section 4.10. Delivery of Financial Reports. The Master Servicer
-----------------------------
shall furnish to the Company, the Trustee, each Funding Agent and with respect
to clause (a) below, the Rating Agencies:
(a) copies of the following financial Reports, reports, notices
and information;
(i) within 90 days after the end of each fiscal year, the
Servicer Guarantor's consolidated balance sheet and related Reports of
income, stockholders' equity and cash flows showing the consolidated
financial condition of the Servicer Guarantor and its consolidated
subsidiaries as of the close of such fiscal year and the consolidated
results of its operations and the operations of such subsidiaries
during such year (and showing, on a comparative basis, the figures for
the previous year), all audited by Independent Public Accountants and
accompanied by an opinion of such accountants (which shall not be
qualified in any material respect except that qualifications relating
to (i) preacquisition balance sheet accounts of Persons acquired by
the Master Servicer and (ii) Reports in reliance on another accounting
firm shall be permitted) to the effect that such consolidated
financial Reports fairly present in all material respects the
financial condition and results of operations of the Servicer
Guarantor and its consolidated subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(ii) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year, the Servicer Guarantor's
unaudited consolidated balance sheet and related Reports of income,
stockholders' equity and cash flows showing the consolidated financial
condition of the Servicer Guarantor, each of the European Originators
and each of their consolidated subsidiaries as of the close of such
fiscal quarter and the consolidated results of the Servicer
Guarantor's operations and the operations of such subsidiaries during
such fiscal quarter and the then elapsed portion of the fiscal year
(and showing, on a comparative basis, such information as of and for
the corresponding dates and periods of the preceding fiscal year), all
certified by a Responsible Officer of the Servicer Guarantor as fairly
presenting in all material respects the consolidated financial
condition and results of operations of the Servicer Guarantor and its
consolidated subsidiaries on a consolidated basis in
18
accordance with GAAP (except for the absence of footnote disclosure)
consistently applied, subject to year-end audit adjustments;
(iii) within 150 days after the end of each fiscal year
audited balance sheet and related reports statements of income,
stockholders' equity and cash flows showing the financial condition of
the Servicer Guarantor and each of the European Originators and each
of their consolidated subsidiaries;
(b) concurrently with any delivery of financial Reports under
sub-paragraph (a)(ii) above, subject to Section 8.11 hereof, a certificate of
------------
the Responsible Officer certifying such Reports and stating to the best of such
person's knowledge (i) no Early Amortization Event or Potential Early
Amortization Event exists, or (ii) if any Early Amortization Event or Potential
Early Amortization Event exists, stating the nature and status thereof;
(c) promptly after the filing thereof, copies of any
registration statement (other than the exhibits thereto and excluding any
registration statements on Form S-8 and any other registration statement
relating exclusively to stock, bonus, option, 401(k) and other similar plans for
officers, directors and employees) of each Originator and the Servicer Guarantor
or any of its respective Subsidiaries or Affiliates;
(d) promptly upon the furnishings thereof to the shareholders of
each Originator, copies of all financial statements, financial reports and proxy
statements so furnished;
(e) (i) within ten (10) days after the date of any material
change in the Policies, a copy of the Policies then in effect and (ii) within
ten (10) calendar days after the date of the Master Servicer's receipt of notice
of or the publication of any change in each Originator's public or private debt
ratings by a Rating Agency, if any, a written certification of such Originator's
public or private debt ratings by a Rating Agency after giving effect to such
change; and
(f) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of each
Originator, or compliance with the terms of any Transaction Document, in each
case as any Funding Agent or any Trustee may reasonably request.
Section 4.11. Notices. The Master Servicer shall furnish written
-------
notice of the following events to the Company, the Trustee, each Funding Agent
and each Rating Agency, promptly upon a Responsible Officer of such Person
obtaining actual knowledge thereof: (i) the reduction or withdrawal of a
relevant applicable rating of an Obligor, an Approved Obligor Country or an
Approved Currency by a Rating Agency or (ii) the occurrence of any Originator
Termination Event, Potential Originator Termination Event, Early Amortization
Event, Potential Early Amortization Event,
19
Master Servicer Default, Potential Master Servicer Default or Program
Termination Event.
Section 4.12. Master Servicer's Conduct. The Master Servicer hereby
-------------------------
agrees with the Trustee that as Master Servicer it shall exercise the same
degree of skill and care in managing the administration and servicing of the
Receivables, and performing its obligations hereunder, as it would exercise if
it were the beneficial owner of all such Receivables.
Section 4.13. Delivery of Information or Documents Requested by the
-----------------------------------------------------
Company. The Master Servicer shall promptly furnish to the Company and each
-------
other Person identified by the Company all information and documents reasonably
requested by the Company that are necessary in order for the Company to fulfill
its obligations under the Transaction Documents.
ARTICLE V
OTHER MATTERS RELATING TO THE MASTER SERVICER
---------------------------------------------
Section 5.01. Merger, Consolidation, etc. The Master Servicer shall
---------------------------
not enter into any merger, consolidation or amalgamation, or liquidate, wind up
or dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
transfer, lease, assign or otherwise dispose of, all or substantially all of its
property, business or assets other than the assignments and transfers
contemplated hereby; provided that the Master Servicer may merge into or
--------
consolidate with any other Person or convey, sell or transfer its property,
business or assets substantially as an entirety to another Person, if:
(a) (i) the Master Servicer is the surviving entity or (ii) the
surviving Person (A) expressly assumes, without execution or filing of any paper
or any further act on the part of any of the parties hereto, the performance of
every one of its covenants and obligations hereunder and (B) no Material Adverse
Effect with respect to such Person shall result from such merger, consolidation,
sale, lease, transfer or disposal of assets;
(b) subject to Section 8.11 hereof, it has delivered to the
------------
Trustee a Responsible Officer's certificate and an Opinion of Counsel addressed
to the Trust and the Trustee (i) each stating that such consolidation, merger,
conveyance or transfer complies with this Section 5.01 and (ii) further stating
------------
in the Responsible Officer's certificate that all conditions precedent herein
provided for relating to such transaction have been complied with;
(c) such merger, consolidation, conveyance, sale, or transfer
satisfies the Rating Agency Condition; and
(d) either (x) the corporation formed by such consolidation or
into which the Master Servicer is merged or the Person which acquired by
conveyance or
20
transfer the properties and assets of the Master Servicer substantially as an
entirety shall be an eligible Successor Master Servicer (taking into account, in
making such determination, the experience and operations of the predecessor
Master Servicer) or (y) upon the effectiveness of such consolidation, merger,
conveyance or transfer, a Successor Master Servicer shall have assumed the
obligations of the Master Servicer in accordance with this Agreement.
Section 5.02. Indemnification of the Trust and the Trustee.
--------------------------------------------
(a) The Master Servicer hereby agrees to indemnify and hold
harmless each of the Company and the Trustee for the benefit of the Investor
Certificateholders, and each of their affiliates, and respective directors,
managing members, officers, employees and agents and each person who controls
any of them or their affiliates within the meaning of the Securities Act and any
successors thereto (a "Master Servicer Indemnified Person") from and against any
----------------------------------
loss, liability, claim, expense, damage, penalty, judgment, or injury suffered
or sustained by such Master Servicer Indemnified Person by reason of any acts,
omissions or alleged acts or omissions arising out of, or relating to, the
Master Servicer's or Local Servicer's activities pursuant to any Pooling and
Servicing Agreement 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; provided that the Master Servicer shall not indemnify any
--------
Master Servicer Indemnified Person for any liability, cost or expense of such
Master Servicer Indemnified Person (i) arising from a default by an Obligor with
respect to any Receivable (except that indemnification shall be made to the
extent that such default arises out of the Master Servicer's failure to perform
its duties or obligations as Master Servicer under this Agreement), or (ii) to
the extent that such loss, liability, claim, damage, penalty, injury, judgment,
liability or expense is finally judicially determined to have resulted primarily
from the gross negligence or willful misconduct of, or willful breach of this
Agreement by, such Master Servicer Indemnified Person. The provisions of this
indemnity shall run directly to, and be enforceable by, the applicable Master
Servicer Indemnified Person and shall survive the termination, in whole or in
part, of the Agreement and the resignation or removal, as applicable, of the
Master Servicer.
(b) In addition to subsection (a) above, the Master Servicer
--------------
shall indemnify and hold harmless each Master Servicer Indemnified Person from
and against any loss, liability, expense, damage or injury suffered or sustained
by reason of a breach by the Master Servicer or Local Servicer of any covenant
contained in subsections 2.02(f) or (g) or Sections 4.05, 4.06, 4.07 or 4.12
------------------- --- ------------- ---- ---- ----
that materially adversely affects the interest of the Company, the Trust or the
Investor Certificateholders under the Transaction Documents with respect to any
Receivable or the collectibility of any Receivable (a "Master Servicer
---------------
Indemnification Event"), in an amount equal to the outstanding Principal Amount
---------------------
of such Receivable at the time of such event. Payment shall occur on or prior
to the 30th Business Day after the day such Master Servicer Indemnification
Event becomes known to the Master Servicer unless such Master Servicer
Indemnification Event shall have been cured on or before such day.
21
Section 5.03. Master Servicer Not to Resign. The Master Servicer
-----------------------------
shall not resign from the obligations and duties hereby imposed on it except (a)
upon determination that (i) the performance of its duties hereunder is no longer
permissible under applicable law, and (ii) there is no reasonable course of
action that it could take to make the performance of its duties hereunder
permissible under applicable law or (b) if the Master Servicer is terminated as
Master Servicer pursuant to Section 6.01 or (c) if the Master Servicer obtains
-------------
the prior written consent of each Funding Agent and provides evidence that such
resignation satisfies the Rating Agency Condition; provided, however, that such
-------- -------
resignation shall not in any way affect the Servicer Guarantor's obligations
hereunder or under any other Transaction Document. Any such determination
permitting the resignation of the Master Servicer shall be evidenced as to
clause (a)(i) above by an Opinion of Counsel to such effect delivered to the
Company, the Trustee and each Funding Agent. No such resignation shall become
effective until the Servicer Guarantor, or in the event of a default under the
Servicing Guarantee, a Successor Master Servicer shall have assumed the
responsibilities and obligations of the Master Servicer in accordance with
Section 6.02. The Trustee, the Company, each Funding Agent and each Rating
------------
Agency shall be notified of such resignation (or termination) by the Master
Servicer.
Section 5.04. Access to Certain Documentation and Information
-----------------------------------------------
Regarding the Receivables. The Master Servicer shall retain and hold in trust
-------------------------
for the Company, each Originator, each Funding Agent, and the Trustee at the
office of the Master Servicer all hard copies of the UK Originator Daily Reports
and Offers received and printed out by the Master Servicer in accordance with
Sections 2.1 and 2.2 of the UK Receivables Purchase Agreement and Section 4.01
of this Agreement, and all copies and notifications received and/or sent
pursuant to and in accordance with the UK Receivables Purchase Agreement and
Section 4.01 of this Agreement and such computer programs, books of account and
other records as are reasonably necessary to enable the Trustee to determine at
any time the status of the Receivables and all collections and payments in
respect thereof (including, without limitation, an ability to recreate records
evidencing the Receivables in the event of the destruction of the originals
thereof).
ARTICLE VI
MASTER SERVICER DEFAULTS; MASTER SERVICER TERMINATION
-----------------------------------------------------
Section 6.01. Master Servicer Defaults. If any one of the following
------------------------
events (a "Master Servicer Default") shall occur and be continuing:
-----------------------
(a) failure by the Master Servicer to deliver within one (1)
Business Day of when due, any Daily Report or, within three (3) Business Days of
when due, any Monthly Settlement Report, in each case conforming in all material
respects to the requirement of Section 4.01 or 4.02;
------------ ----
(b) failure by the Master Servicer or Local Servicer to pay any
amount required to be paid by it under any Pooling and Servicing Agreement
(which,
22
with respect to the Local Servicer, has not been paid by the Master Servicer) or
to give any direction with respect to the allocation or transfer of funds under
any Pooling and Servicing Agreement, on the date such payment is due or such
allocation or transfer is required to be made;
(c) failure on the part of the Master Servicer or Local Servicer
duly to observe or to perform in any material respect any other of their
respective covenants or agreements set forth in any Pooling or Servicing
Agreement that has a Material Adverse Effect on the Holders of any Outstanding
Investor Certificates and that continues unremedied until five (5) Business Days
after the earlier of (i) the date on which a Responsible Officer of the Master
Servicer has knowledge of such failure and (ii) the date on which written notice
of such failure, requiring the same to be remedied, shall have been given (A) to
the Master Servicer by the Company or the Trustee, or (B) to the Company, the
Trustee and to the Master Servicer by Holders of Investor Certificates
evidencing 25% or more of the Aggregate Invested Amount or by any Funding Agent;
provided that if such failure may be cured and the Master Servicer or the
--------
Servicer Guarantor is diligently pursuing such cure, such event shall not
constitute a Master Servicer Default for an additional five (5) calendar days;
and provided, further, that no Master Servicer Default shall be deemed to occur
-------- -------
under this subsection with respect to a failure on the part of the Master
Servicer if the Master Servicer shall have complied with the provisions of
Section 5.02(b) with respect thereto;
---------------
(d) any representation, warranty or certification made by the
Master Servicer, Local Servicer or Servicer Guarantor herein or in any Pooling
or Servicing Agreement or in any certificate delivered pursuant thereto shall
prove to have been incorrect in any material respect when made or deemed made,
which incorrectness has a Material Adverse Effect on the Holders of any
Outstanding Investor Certificates or on the collectibility of the Receivables as
a whole and which Material Adverse Effect continues unremedied until five (5)
Business Days after the earlier of (i) the date on which a Responsible Officer
of the Master Servicer has knowledge of such failure and (ii) the date on which
written notice thereof, requiring the same to be remedied, shall have been given
(A) to the Master Servicer by the Company or the Trustee, or (B) to the Company,
to the Trustee and to the Master Servicer by Holders of Investor Certificates
evidencing 25% or more of the Aggregate Invested Amount; provided, that if such
--------
incorrectness may be cured and the Master Servicer is diligently pursuing such
cure, such event shall not constitute a Master Servicer Default for an
additional five (5) calendar days;
(e) an Insolvency Event shall have occurred with respect to the
Master Servicer or the Servicer Guarantor;
(f) there shall have occurred and be continuing a Program
Termination Event under any Origination Agreement;
(g) any of this Agreement, the Pooling Agreement, the Supplement
or the Origination Agreements shall cease, for any reason, to be in full force
23
and effect, or the Company, the Master Servicer, any Local Servicer or any
Affiliate of any of the foregoing, shall so assert in writing;
(h) any action, suit, investigation or proceeding at law or in
equity (including, without limitation, injunctions, writs or restraining orders)
shall be brought or commenced or filed by or before any arbitrator, court or
Governmental Authority against the Company, the Master Servicer or Local
Servicer or any properties, revenues or rights of any thereof which could
reasonably be expected to have a Material Adverse Effect on the Holders of any
Outstanding Series of Investor Certificates; or
(i) the Servicer Guarantor or any of its Subsidiaries shall
default in the observance or performance of any agreement or condition relating
to any of its outstanding Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur orcondition exist, the effect of which default or other event or condition
is to cause such Indebtedness to become due prior to its stated maturity;
provided, however, that no Series 2000-1 Early Amortization Event shall be
-------- -------
deemed to occur under this paragraph unless the aggregate amount of Indebtedness
in respect of which any default or other event or condition referred to in this
paragraph shall have occurred shall be equal to at least $20,000,000;
then, in the event of any Master Servicer Default, so long as the Master
Servicer Default shall not have been remedied (or waived in accordance with the
terms of the Transaction Documents), the Trustee may, and at the written
direction of the Holders of Investor Certificates evidencing more than 50% of
the Aggregate Invested Amount voting as a single class, the Trustee shall, by
notice then given in writing to the Master Servicer each Funding Agent and to
each Rating Agency (a "Termination Notice"), terminate all or any part of the
------------------
rights and obligations of the Master Servicer and each Local Servicer hereunder
and under the Pooling Agreement and Servicing Agreements (other than rights and
obligations of the Master Servicer under the Pooling and Servicing Agreements
existing prior to a Master Servicer Default); provided that so long as an
--------
Affiliate of the Company is the Master Servicer, unless otherwise designated in
writing by the Company to the Trustee, any act or omission of the Master
Servicer shall not constitute a Master Servicer Default hereunder if and to the
extent that such act or omission results only in a failure to transfer to the
Company Receipts Account (or otherwise to pay to the Company) any amount which
should have been so transferred (or paid). Notwithstanding anything to the
contrary in this Section 6.01, a delay in or failure of performance referred to
------------
under clause (a) or (b) above for a period of five (5) Business Days after the
applicable grace period shall not constitute a Master Servicer Default, if such
delay or failure could not have been prevented by the exercise of reasonable
diligence by the Master Servicer and such delay or failure was caused by a Force
Majeure Delay. After receipt by the Master Servicer of a Termination Notice,
and on the date that the Liquidation Servicer or the Successor Master Servicer,
as applicable, shall have been appointed by the Trustee pursuant to Section
-------
6.02, all authority and power of the Master Servicer and each Local Servicer
----
under any Pooling and Servicing Agreement to the extent specified in such
Termination Notice shall pass to and be vested in the Liquidation Servicer (a
"Service Transfer") or the Successor Master Servicer, as applicable, and,
----------------
without limitation, the
24
Trustee is hereby directed, authorized and empowered (upon the failure of the
Master Servicer to cooperate) to execute and deliver, on behalf of the Master
Servicer, as attorney-in-fact or otherwise, all documents and other instruments
upon the refusal of the Master Servicer to execute or to deliver such documents
or instruments, and to do and to accomplish all other acts or things necessary
or appropriate to effect the purposes of such Service Transfer and the Trustee
shall incur no liability in connection with effecting such Service Transfer. The
Master Servicer and each Local Servicer agrees to cooperate with the Company,
the Trustee and or the Liquidation Servicer or the Successor Master Servicer, as
applicable, in effecting the termination of the responsibilities and rights of
the Master Servicer and each Local Servicer to conduct their duties hereunder,
including, without limitation, the transfer to the Liquidation Servicer or the
Successor Master Servicer, as applicable, of all authority of the Master
Servicer and each Local Servicer to service the Receivables, provided for under
the Pooling and Servicing Agreements (including without limitation, all
authority over all Collections that shall on the date of transfer be held by the
Master Servicer for deposit, or that have been deposited by the Master Servicer,
in any Collection Account, Master Collection Account or Company Concentration
Account or that shall thereafter be received with respect to the Receivables),
and in assisting the Liquidation Servicer or the Successor Master Servicer, as
the case may be. Upon a Service Transfer, the terminated Master Servicer and
each Local Servicer shall promptly (x) assemble all of its documents,
instruments and other records (including credit files, licenses (to the extent
transferable), rights, copies of all relevant computer programs and any
necessary licenses (to the extent transferable) for the use thereof, related
material, computer tapes, disks, cassettes and data) that (i) evidence or record
Receivables which are the subject of the Participation and (ii) are otherwise
necessary to enable the Liquidation Servicer or the Successor Master Servicer,
as the case may be, to coordinate servicing of all such Receivables and to
prepare and deliver Daily Reports and Monthly Settlement Reports, (iii) are
otherwise necessary to enable the Liquidation Servicer or the Successor Master
Servicer, as the case may be, to effect the immediate Collection of such
Receivables, with or without the participation of an Originator or the Master
Servicer and (y) deliver to the extent permitted by law or license (to the
extent transferable) the use of all of the foregoing documents, instruments and
other records to such Liquidation Servicer or the Successor Master Servicer, as
the case may be, at a place designated by such Liquidation Servicer or the
Successor Master Servicer, as the case may be; provided, however, that the
-------- -------
Master Servicer shall not be required, to the extent it has an ownership
interest in any electronic records, computer software or licenses, to transfer,
assign, set-over or otherwise convey such ownership interests to the Liquidation
Servicer or the Successor Master Servicer, as the case may be. In recognition of
the terminated Master Servicer's need to have access to any such documents,
instruments and other records that may be transferred to the Liquidation
Servicer or the Successor Master Servicer, as the case may be, hereunder,
whether as a result of its continuing responsibility as a servicer of accounts
receivable that are not the subject of the Participation or otherwise, such
Liquidation Servicer or Successor Master Servicer, as the case may be, shall
provide to such terminated Master Servicer reasonable access to such documents,
instruments and other records transferred by such terminated Master Servicer to
it in connection with any activity arising in the ordinary course of the
25
terminated Master Servicer's business; provided that the terminated Master
--------
Servicer shall not disrupt or otherwise interfere with the Liquidation
Servicer's or the Successor Master Servicer's, as the case may be, use of and
access to such documents, instruments and other records. To the extent that
compliance with this Section 6.01 shall require the terminated Master Servicer
------------
to disclose to such Successor Master Servicer information of any kind that the
terminated Master Servicer reasonably deems to be confidential, the Liquidation
Servicer or the Successor Master Servicer, as the case may be, shall be required
to enter into such customary licensing and confidentiality agreements as the
terminated Master Servicer shall reasonably deem necessary to protect its
interests. All costs and expenses incurred by the terminated Master Servicer and
the Trustee in connection with any Service Transfer shall be for the account of
the terminated Master Servicer and to the extent any costs or expenses incurred
by the Trustee are not so paid, the Trustee shall be entitled to be paid such
items from amounts that would otherwise be distributable to the Company under
Article III of the Pooling Agreement.
Section 6.02. Trustee To Act; Appointment of Successor.
----------------------------------------
(a) On and after (i) the receipt by the Master Servicer of a
Termination Notice pursuant to Section 6.01 or (ii) the date on which the Master
------------
Servicer notifies the Trustee, the Company, each Funding Agent and each Rating
Agency in writing of its resignation pursuant to Section 5.03 (the "Resignation
------------ -----------
Notice"), the Master Servicer shall continue to perform all servicing functions
------
under the Pooling and Servicing Agreements until the earlier of (i) the date on
which (i) a Successor Master Servicer accepts its appointment and (ii) 60 days
after the delivery of such Termination Notice or Resignation Notice, as the case
may be. Upon the receipt by the Trustee of a Termination Notice or Resignation
Notice with respect to the Master Servicer, the Trustee shall appoint any
eligible Successor Master Servicer subject to satisfaction of the Rating Agency
Condition (the "Successor Master Servicer") and such Successor Master Servicer
-------------------------
shall accept its appointment by a written assumption in a form acceptable to the
Trustee.
(b) In the event that a Successor Master Servicer has not been
appointed or has not accepted its appointment at the time when the Master
Servicer ceases to act as Master Servicer, the Trustee without further action
shall notify the Liquidation Servicer to activate the commencement of servicing
by the Liquidation Servicer and to establish the Liquidation Servicer
Commencement Date.
(c) Upon its appointment, the Successor Master Servicer shall be
the successor in all respects to the Master Servicer and each Local Servicer
with respect to servicing functions under the Pooling and Servicing Agreements
(with such changes as are agreed to between such Successor Master Servicer and
the Company (with the consent of the Rating Agencies) or the Company and the
Trustee) and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Master Servicer by the terms and
provisions hereof, and all references in any Pooling or Servicing Agreement to
the Master Servicer shall be deemed to refer to such Successor Master Servicer.
The Successor Master Servicer shall not be liable for, and the replaced Master
Servicer shall indemnify the Successor Master Servicer against costs incurred by
26
the Successor Master Servicer as a result of, any acts or omissions of such
replaced Master Servicer or any events or occurrences occurring prior to the
Successor Master Servicer's acceptance of its appointment as successor to the
Master Servicer. Any Successor Master Servicer shall manage the servicing and
administration of the Receivables in accordance with the Policies and the terms
of the Pooling and Servicing Agreements.
(d) The Company and the Trustee hereby agree that the Successor
Master Servicer shall receive the Servicing Fee as its servicing compensation
and that the Trustee shall not be liable for any Servicing Fee differential as a
result of the Master Servicer fulfilling its obligations hereunder.
Section 6.03. Waiver of Past Defaults. Holders of Investor
-----------------------
Certificates evidencing more than 51% of the Aggregate Invested Amount may waive
any continuing default by the Master Servicer or the Company in the performance
of its respective obligations hereunder and its consequences, except a default
in the failure to make any required deposits or payments in respect of any
Series of Investor Certificates, which shall require a waiver by the Holders of
all of the affected Investor Certificates. Upon any such waiver of a past
default, such default shall cease to exist, and any default arising therefrom
shall be deemed to have been remedied for every purpose of the Pooling and
Servicing Agreements. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereon except to the extent expressly so
waived. The Company and the Master Servicer shall provide notice to each Rating
Agency of any such waiver.
ARTICLE VII
GUARANTY
--------
Section 7.01. Guaranty. In order to induce the Company and the
--------
Trustee to execute and deliver this Agreement, and in consideration thereof, the
Servicer Guarantor hereby (i) unconditionally and irrevocably guarantees to the
Company and the Trustee the obligations of the Master Servicer and each Local
Servicer to perform all of the terms, conditions, covenants and agreements to be
made by the Master Servicer and each Local Servicer under this Agreement, the
Pooling Agreement or the Origination Agreements, (ii) agrees to cause the Master
Servicer and each Local Servicer to perform and observe duly and punctually all
of the foregoing, and (iii) agrees that, if for any reason whatsoever the Master
Servicer and each Local Servicer fails to so perform and observe such terms,
conditions, covenants and agreements, the Servicer Guarantor will duly and
punctually perform and observe the same (the obligations referred to in clauses
-------
(i) through (iii) above are collectively referred to as the "Guaranteed
--- ----- ----------
Obligations"). The liabilities and obligations of the Servicer Guarantor under
-----------
the guaranty contained in this Article VII (this "Guaranty") will be absolute
--------
and unconditional under all circumstances. Notwithstanding anything to the
contrary contained herein, the Company and the Trustee acknowledge and agree
that this Guaranty shall be a guaranty of performance and not of payment.
27
Section 7.02. Scope of Guarantor's Liability. The Guaranteed
------------------------------
Obligations are independent of the obligations of the Master Servicer, any other
guarantor or any other Person, and the Company and the Trustee may enforce any
of their rights hereunder independently of any other right or remedy that the
Company and the Trustee may at any time hold with respect to their Guaranteed
Obligations or any security or other guaranty therefor. Without limiting the
generality of the foregoing, the Company and the Trustee may bring a separate
action against the Servicer Guarantor without first proceeding against the
Master Servicer or any Local Servicer, any other guarantor or any other Person,
and regardless of whether the Master Servicer or any other guarantor or any
other Person is joined in any such action. The Servicer Guarantor's liability
hereunder shall at all times remain effective with respect to Guaranteed
Obligations and the obligations of the Master Servicer and each Local Servicer
under the Pooling Agreement, notwithstanding any limitations on the liability of
any Master Servicer or any Local Servicer to the Company and the Trustee
contained in any of the Transaction Documents or elsewhere. The Company and the
Trustee's rights hereunder shall not be exhausted by any action taken by the
Company and the Trustee until all Guaranteed Obligations have been fully
performed.
Section 7.03. The Company and the Trustee's Right to Amend this
-------------------------------------------------
Agreement. The Servicer Guarantor authorizes the Company and the Trustee, at
---------
any time and from time to time without notice and, subject to the provisions of
Section 6.03, without affecting the liability of the Servicer Guarantor
------------
hereunder, to: (a) alter the terms of all or any part of the Guaranteed
Obligations; (b) waive, release, terminate, abandon, subordinate and enforce all
or any part of the Guaranteed Obligations and any security or guaranties
therefor, (c) release the Master Servicer, any guarantor or any other Person
from any personal liability with respect to all or any part of the Guaranteed
Obligations; and (d) assign its rights under this Guaranty in whole or in part.
Section 7.04. Waiver of Certain Rights by Guarantor. The Servicer
-------------------------------------
Guarantor hereby waives each of the following to the fullest extent allowed by
law:
(a) any defense based upon:
(i) any act or omission of the Company and the
Trustee or any other Person that directly or indirectly results in the
discharge or release of any of the Master Servicer or any other Person
or any of the Guaranteed Obligations or any security therefor; or
(ii) any disability or any other defense of the Master
Servicer with respect to the Guaranteed Obligations, whether
consensual or arising by operation of law or any bankruptcy,
insolvency or debtor-relief proceeding, or from any other cause;
(b) any right (whether now or hereafter existing) to
require the Company and the Trustee, as a condition to the enforcement of this
Guaranty, to proceed against the Master Servicer;
28
(c) presentment, demand, protest and notice of any kind,
including without limitation notices of default and notice of acceptance of this
Guaranty; and
(d) all other rights and defenses the assertion or exercise of
which would in any way diminish the liability of the Servicer Guarantor
hereunder in respect of the Guaranteed Obligations.
Section 7.05. Master Servicer's Obligations to Guarantor and Guarantor's
----------------------------------------------------------
Obligations to Master Servicer Subordinated. Until all of the Guaranteed
-------------------------------------------
Obligations have been performed, the Servicer Guarantor agrees that all existing
and future obligations of the Master Servicer or Local Servicer to the Servicer
Guarantor or the Servicer Guarantor to the Master Servicer or Local Servicer
shall be and hereby are expressly subordinated to the full performance of the
Guaranteed Obligations, on the terms set forth in clauses (a) through (d) below,
----------- ---
and the performance thereof is expressly deferred in right to the full
performance of the Guaranteed Obligations.
(a) The Servicer Guarantor authorizes and directs the Master
Servicer and each Local Servicer and each of the Company and the Trustee
authorizes and directs the Servicer Guarantor to take such action as may be
necessary or appropriate to effectuate and maintain the subordination provided
herein.
(b) No right of any holder of the Guaranteed Obligations to
enforce the subordination herein shall at any time or in any way be prejudiced
or impaired by any act or failure to act on the part of the Servicer Guarantor,
the Company and the Trustee or any other Person or by any noncompliance by the
Servicer Guarantor, the Trustee, the Company and the Trustee or any other Person
with the terms, provisions and covenants hereof or of the Transaction Documents
regardless of any knowledge thereof that any such holder of the Guaranteed
Obligations may have or be otherwise charged with.
(c) Nothing express or implied herein shall give any Person
other than the Master Servicer, the Company, the Trustee, and the Servicer
Guarantor any benefit or any legal or equitable right, remedy or claim
hereunder.
(d) If the Servicer Guarantor shall institute or participate in
any suit, action or proceeding against the Company or the Trustee or the Company
or the Trustee shall institute or participate in any suit, action or proceeding
against the Servicer Guarantor, in violation of the terms hereof, the Company or
the Trustee or the Servicer Guarantor, as the case may be may interpose as a
defense or dilatory plea this subordination, either the Company or the Trustee
are irrevocably authorized to intervene and to interpose such defense or plea in
their name or in the name of the Company or the Trustee, or the Servicer
Guarantor, as the case may be.
Section 7.06. Guarantor to Pay the Company and the Trustee's
----------------------------------------------
Expenses. The Servicer Guarantor agrees to pay to the Company and the Trustee,
on demand, all
29
reasonable costs and expenses, including attorneys' fees, incurred by the
Company and the Trustee in exercising any right, power or remedy conferred by
this Guaranty, or in the enforcement of this Guaranty, whether or not any action
is filed in connection therewith. Until paid to the Company and the Trustee,
such amounts shall bear interest, commencing with the Company and the Trustee's
demand therefor, for each Settlement Period during the period from the date of
such demand until paid, at a rate equal to One-Month LIBOR plus 1.00%
(calculated on the basis of a 360-day year).
Section 7.07. Reinstatement. This Guaranty shall continue to be
-------------
effective or be reinstated, as the case may be, and the rights of the Company
and the Trustee shall continue, if at any time performance of the General
Obligations is discontinued by the Servicer Guarantor upon an event of
bankruptcy, dissolution, liquidation or reorganization of the Company, the
Trustee, the Servicer Guarantor, any other guarantor or any other Person or upon
or as a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for the foregoing, or any substantial part of
their respective property, or they become otherwise insolvent.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
------------------------
Section 8.01. Amendment. This Agreement may only be amended,
---------
supplemented or otherwise modified from time to time if such amendment,
supplement or modification is effected in accordance with the provisions of
Section 10.01 of the Pooling Agreement.
-------------
Section 8.02. Termination.
-----------
(a) The respective obligations and responsibilities of the
parties hereto shall terminate on the Trust Termination Date (unless such
obligations or responsibilities are expressly stated to survive the termination
of this Agreement).
(b) All authority and power granted to the Master Servicer
under any Pooling or Servicing Agreement shall automatically cease and terminate
on the Trust Termination Date, and shall pass to and be vested in the Company
and, without limitation, the Company is hereby authorized and empowered to
execute and deliver, on behalf of the Master Servicer as attorney-in-fact or
otherwise, all documents and other instruments, and to do and accomplish all
other acts or things necessary or appropriate to effect the purposes of such
transfer of rights from and after the Trust Termination Date. The Master
Servicer shall cooperate with the Company in effecting the termination of its
responsibilities and rights to conduct servicing of the Receivables on their
respective behalf. The Master Servicer shall transfer all of its records
relating to the Receivables to the Company in such form as the Company may
reasonably request and shall transfer all other records, correspondence and
documents to the Company in the manner and at such times as the Company will
reasonably request. To the extent that compliance with this subsection 8.02(b)
------------------
shall require the Master Servicer to disclose to the Company
30
information of any kind that the Master Servicer deems to be confidential, the
Company will be required to enter into such customary licensing and
confidentiality agreements as the Master Servicer shall reasonably deem
necessary to protect its interests.
Section 8.03. 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).
Section 8.04. WAIVER OF TRIAL BY JURY AND SUBMISSION TO JURISDICTION.
------------------------------------------------------
(a) THE PARTIES HERETO EACH WAIVE THEIR RESPECTIVE RIGHTS TO
A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY PARTY AGAINST
THE OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR
OTHERWISE. THE PARTIES HERETO EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION
SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING,
THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS
WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER
PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS PLACEMENT AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS SERVICING AGREEMENT.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, OR ANY LEGAL
----- --- ----------
PROCESS WITH RESPECT TO ITSELF OR ANY OF ITS PROPERTY, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH OF THE PARTIES
HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS,
31
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
NEW YORK LAW.
(c) THE PROVISIONS OF THIS SECTION 8.04 SHALL SURVIVE THE
------------
TERMINATION OF THIS AGREEMENT, IN WHOLE OR IN PART, AND THE ISSUANCE, PAYMENT
AND DELIVERY OF THE CERTIFICATES.
Section 8.05. 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 set forth in Section 10.05 of the Pooling Agreement or
-------------
Section 8.08 of the related Origination Agreement, or to such other address as
------------
may be hereafter notified by the respective parties hereto.
Section 8.06. 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. Delivery of an executed counterpart of a signature page to
this Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart of this Agreement.
Section 8.07. Third-Party Beneficiaries. This Agreement shall inure to
-------------------------
the benefit of and be binding upon the parties hereto and the Investor
Certificateholders and their respective successors and permitted assigns. Except
as provided in this Article VIII, no other person shall have any right or
obligation hereunder.
Section 8.08. 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. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
Section 8.09. Headings. The headings herein are for purposes of
--------
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
Section 8.10. No Set-Off. Except as expressly provided in this
----------
Agreement, each of the Master Servicer and the Servicer Guarantor agrees that it
shall have no right of set-off or banker's lien against, and no right to
otherwise deduct from, any funds held in any Collection Account, Master
Collection Accounts or Company Concentration Accounts for any amount owed to it
by the Company, the Trust, the Trustee or any Holder.
32
Section 8.11. No Bankruptcy Petition.
----------------------
(a) The Servicer Guarantor hereby covenants and agrees that
solely in its capacity as a creditor of the Company it shall not institute
against, or join any other Person in instituting against the Company any
involuntary 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.
(b) The Master Servicer hereby covenants and agrees that solely
in its capacity as a creditor of the Company it shall 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.
(c) Notwithstanding anything elsewhere herein, the sole remedy
of the Trust, the Trustee, the Holders, the Master Servicer and the Servicer
Guarantor or of any other Person in respect of any obligation, covenant,
representation, warranty or agreement of the Company under or related to this
Agreement shall be against the assets of the Company. Neither the Trust, the
Trustee, the Holders, the Master Servicer and the Servicer Guarantor, nor any
other Person shall have any claim against the Company to the extent that such
assets are insufficient to meet any such obligation, covenant, representation,
warranty or agreement (the difference being referred to herein as "shortfall")
and all claims in respect of the shortfall shall be extinguished.
Section 8.12. Responsible Officer Certificates; No Recourse. Any
---------------------------------------------
certificate executed and delivered by a Responsible Officer of the Master
Servicer or the Servicer Guarantor, as the case may be 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
Master Servicer or the Servicer Guarantor, and such Responsible Officer will not
be subject to personal liability as to the matters contained in the certificate.
A director, officer, employee or shareholder, as such, of the Master Servicer,
the Servicer Guarantor or the Company shall not have liability for any
obligation of the Master Servicer, the Servicer Guarantor or the Company (as the
case may be) 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.
Section 8.13. Consequential Damages. In no event shall the Master
---------------------
Servicer or The Trustee be liable for special, indirect or consequential loss or
damage of any kind whatsoever (including, but not limited to, lost profits),
even if it has been advised of the likelihood of such loss or damage and
regardless of the form of action.
33
IN WITNESS WHEREOF, the Company, the Servicer Guarantor, the Master
Servicer, each of the Local Servicers and the Trustee have caused this Agreement
to be duly executed by their respective officers as of the day and year first
above written.
Signed by authorized officers of:
HUNTSMAN RECEIVABLES FINANCE LLC,
as Company
HUNTSMAN (EUROPE) BVBA,
as Master Servicer
HUNTSMAN INTERNATIONAL LLC,
as Local Servicer
TIOXIDE AMERICAS, INC.,
as Local Servicer
HUNTSMAN PROPYLENE OXIDE LTD.,
as Local Servicer
HUNTSMAN INTERNATIONAL FUELS L.P.,
as Local Servicer
HUNTSMAN ICI HOLLAND B.V.,
as Local Servicer
TIOXIDE EUROPE LIMITED,
as Local Servicer
HUNTSMAN PETROCHEMICALS (UK) LIMITED,
as Local Servicer
CHASE MANHATTAN BANK (IRELAND) PLC,
not in its individual capacity but solely as Trustee
1
HUNTSMAN INTERNATIONAL LLC,
as Servicer Guarantor
PRICEWATERHOUSECOOPERS,
as Liquidation Servicer
2