AMENDED AND RESTATED CONTRIBUTION AGREEMENT

 

TABLE OF CONTENTS

 

			Page
1.	DEFINITIONS		1
	1.01	Defined Terms	1
	1.02	Other Definitional Provisions	1
2.	CONTRIBUTION OF RECEIVABLES		2
	2.01	Contribution of Receivables	2
	2.02	Contribution Value	4
	2.03	Intentionally Omitted	5
	2.04	No Repurchase	5
	2.05	Rebates, Adjustments, Returns, Reductions and Modifications	5
	2.06	Payments in Respect of Ineligible Receivables and Originator Indemnification Payments	5
	2.07	Certain Charges	6
	2.08	Certain Allocations	6
	2.09	Power of Attorney	6
3.	CONDITIONS TO CONTRIBUTIONS		7
	3.01	Conditions Precedent to Contribution	7
	3.02	Conditions Precedent to all Contributions of Receivables	8
	3.03	Conditions Precedent to the Contributor’s Obligations on the Initial Contribution Date and each Contribution Date thereafter	9
4.	REPRESENTATIONS AND WARRANTIES		9
	4.01	Representations and Warranties of the Contributor	9
	4.02	Representations and Warranties of the Contributor Relating to the Contributed Receivables	14
	4.03	Representations and Warranties of the Company	15
5.	AFFIRMATIVE COVENANTS		15
	5.01	Financial Statements, Reports, etc.	16
	5.02	Compliance with Law and Policies	16
	5.03	Preservation of Company Existence	17
	5.04	Separate Company Existence	17
	5.05	Inspection of Property; Books and Records; Discussions	18
	5.06	Location of Records	18
	5.07	Computer Files and other Documents	18
	5.08	Obligations	18
	5.09	Collections	18
	5.10	Furnishing Copies, Etc.	18

 

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			Page
	5.11	Intentionally Omitted	19
	5.12	Assessments	19
	5.13	Intentionally Omitted	19
	5.14	Notices	19
	5.15	Bankruptcy	19
	5.16	Further Action	19
	5.17	Marking of Records	20
	5.18	Intentionally Omitted	20
	5.19	Enforcement of Agreements	20
6.	NEGATIVE COVENANTS		20
	6.01	Limitations on Transfers of Contributed Receivables, Etc.	20
	6.02	Extension or Amendment of Contributed Receivables	20
	6.03	Change in Payment Instructions to Obligors	20
	6.04	Change in Name	20
	6.05	Policies	21
	6.06	Modification of Legend	21
	6.07	Accounting for Contributions	21
	6.08	Instruments	21
	6.09	Ineligible Receivables	21
	6.10	Business of the Contributor	21
	6.11	Intentionally Omitted.	21
	6.12	Offices	21
	6.13	Intentionally Omitted	21
	6.14	Amendment of Transaction Documents or Other Material Documents	21
	6.15	Additional Equity	22
	6.16	Receivables Purchase Agreements	22
7.	TERMINATION EVENTS		22
	7.01	Originator Termination Events	22
	7.02	Program Termination Events	23
	7.03	Remedies	23
8.	MISCELLANEOUS		25
	8.01	Payments	25
	8.02	Costs and Expenses	25
	8.03	Successors and Assigns	25

 

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				Page
	8.04	Intentionally Omitted	25
	8.05	Intentionally Omitted	25
	8.06	Governing Law	25
	8.07	No Waiver; Cumulative Remedies	25
	8.08	Amendments and Waivers	26
	8.09	Severability	26
	8.10	Notices	26
	8.11	Counterparts	27
	8.12	Submission to Jurisdiction; Service of Process	27
	8.13	No Bankruptcy Petition	28
	8.14	Termination	28
	8.15	Responsible Officer Certificates; No Recourse	28
	8.16	Confidential Information	28
	8.17	Effectiveness of this Agreement	29
SCHEDULES
Schedule 1		Form of Solvency Certificate
Schedule 2		Location of Books and Records

 

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AMENDED AND RESTATED CONTRIBUTION AGREEMENT, dated as of April 18, 2006 (this “ Agreement ”), between Huntsman International LLC, a limited liability company organized under the laws of the State of Delaware, as contributor (the “ Contributor ”) and Huntsman Receivables Finance LLC, a limited liability company organized under the laws of the State of Delaware, as the Company (the ” Company ”).

 

W I T N E S S E T H:

 

WHEREAS, the parties are entering into this Agreement under which the Contributor may contribute to the Company, as a capital contribution, its right, title and interest in, to and under certain accounts receivable originated by the Contributor, existing and hereafter arising from time to time;

 

WHEREAS, the Contributor shall purchase additional accounts receivable pursuant to certain receivables purchase agreements between the Contributor and one or more of its affiliates, and, if it purchases the same, shall contribute such purchased accounts receivable, together with certain accounts receivable originated by the Contributor, to the Company, as a capital contribution;

 

WHEREAS, the Company will grant a participation and a security interest in the accounts receivable contributed to it to J.P.Morgan Bank (Ireland) plc, not in its individual capacity but solely as trustee, as Trustee (the “ Trustee ”) of the Huntsman Master Trust, established pursuant the Second Amended and Restated Pooling Agreement, dated as of the date hereof (such agreement, as it may be amended, modified or otherwise supplemented from time to time, the “ Pooling Agreement ”), among the Trustee, the Company and Huntsman (Europe) BVBA, as Master Servicer (the “ Master Servicer ”); and

 

WHEREAS, the Master Servicer, the Company, Huntsman International LLC, as Servicer Guarantor, the Liquidation Servicer, the Local Servicers party thereto from time to time and the Trustee have entered into a Second Amended and Restated Servicing Agreement, dated as of the date hereof (such agreement, as it may be amended, restated, modified or otherwise supplemented from time to time, the ” Servicing Agreement ”), pursuant to which the Master Servicer will agree to service and administer or cause to be serviced or administered such accounts receivable on behalf of the Company.

 

NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, the parties hereto agree as follows:

 

1.             DEFINITIONS

 

1.01         Defined Terms . Capitalized terms used herein shall, unless otherwise defined or referenced herein, have the meanings assigned to such terms in Annex X attached to the Pooling Agreement which Annex X is incorporated by reference herein.

 

1.02         Other Definitional Provisions .

 

(a)           The words “hereof”, “herein”, “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and article, section, subsection, schedule and exhibit references are to this Agreement unless otherwise specified.

 

(b)           As used herein and in any certificate or other document made or delivered pursuant hereto, accounting terms relating to the Contributor and the Company, unless otherwise defined or incorporated by reference herein, shall have the respective meanings given to them under GAAP.

 

 

(c)           The meanings given to terms defined or incorporated by reference herein shall be equally applicable to both the singular and plural forms of such terms.

 

(d)           Any reference herein to a Schedule or Exhibit to this Agreement shall be deemed to be a reference to such Schedule or Exhibit as it may be amended, modified or supplemented from time to time to the extent that such Schedule or Exhibit may be amended, modified or supplemented (or any term or provision of any Transaction Document may be amended that would have the effect of amending, modifying or supplementing information contained in such Schedule or Exhibit) in compliance with the terms of the Transaction Documents.

 

(e)           Any reference in this Agreement to any representation, warranty or covenant “deemed” to have been made is intended to encompass only representations, warranties or covenants that are expressly stated to be repeated on or as of dates following the execution and delivery of this Agreement, and no such reference shall be interpreted as a reference to any implicit, inferred, tacit or otherwise unexpressed representation, warranty or covenant.

 

(f)            The words “include”, “includes” or “including” shall be interpreted as if followed, in each case, by the phrase “without limitation”.

 

(g)           Any reference herein to a provision of the Bankruptcy Code, Code, ERISA, 1940 Act or the UCC shall be deemed a reference to any successor provision thereto.

 

2.             CONTRIBUTION OF RECEIVABLES

 

2.01         Contribution of Receivables .

 

(a)           On the date hereof and on any Business Day thereafter, the Contributor shall contribute, transfer, assign, and convey, without recourse (except as expressly provided herein), to the Company, as a capital contribution (which the Company shall accept), all of its present and future right, title and interest in, to and under:

 

(i)            such Eligible Receivables originated by the Contributor from time to time prior to but not including the date on which an Early Program Termination occurs, or an Early Originator Termination occurs with respect to the Contributor and included in the Originator Daily Report transmitted to the Master Servicer and included in the Daily Report generated by the Master Servicer and transmitted to the Trustee electronically or by telecopier on the applicable date of contribution (any such date, a “ Contribution Date ”);

 

(ii)           all Purchased Receivables (as defined in the applicable Receivables Purchase Agreement) purchased by the Contributor from an Originator on the Contribution Date pursuant to the terms of a Receivables Purchase Agreement from time to time (such Purchased Receivables, together with any Eligible Receivables contributed pursuant to clause (i), the “ Contributed Receivables ”);

 

(iii)          the Related Property;

 

(iv)          all collections in respect of such Contributed Receivables;

 

(v)           all rights (including rescission, replevin or reclamation) of the Contributor relating to any such Contributed Receivable or arising therefrom;

 

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(vi)          all rights of the Contributor under each of the Receivables Purchase Agreements including, in respect of each such agreement, (A) all rights of the Contributor to receive monies due and to become due under or pursuant to such agreement, whether payable as fees, expenses, costs or otherwise, (B) all rights of the Contributor to receive proceeds of any insurance, indemnity, warranty or guaranty with respect to such agreement, (C) claims of the Contributor for damages arising out of or for breach of or default under such agreement, (D) the right of the Contributor to amend, waive or terminate such agreement, to perform thereunder and to compel performance and otherwise exercise all remedies thereunder and (E) all other rights, remedies, powers, privileges and claims of the Contributor under or in connection with such agreement (whether arising pursuant to such agreement or otherwise available to the Contributor at law or in equity), including the rights of the Contributor to enforce such agreement and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or in connection therewith;

 

(vii)         all “accounts,” “general intangibles,” “chattel paper” and/or “instruments” (each as defined in the UCC as in effect in any applicable jurisdiction) arising from, relating to or consisting of any of the foregoing property; and

 

(viii)        all proceeds of or payments in respect of any and all of the foregoing clauses (i) through (iv) (including Collections).

 

Such property described in the foregoing clauses (i) through (viii) shall be referred to collectively herein as the “ Receivable Assets ” and shall be considered to be assets that have been contributed, transferred, assigned, set over and otherwise conveyed by the Contributor to the Company immediately upon completion of the purchase of any Receivables referred to in Section 2.01(a)(ii) above, in accordance with the terms of any Receivables Purchase Agreement, and in relation to those Receivables referred to in Section 2.01(a)(i) above, upon delivery to the Company of a Daily Report.

 

(b)           The Contributor and the Company hereby acknowledge and agree that it is their mutual intent that (a) every transfer by way of capital contribution of Receivable Assets to the Company hereunder shall be an absolute, unconditional, “true” conveyance and not a mere granting of a security interest to secure a loan to or from the Company, (b) the Contributor shall not retain any interest in the Receivable Assets after the contribution thereof hereunder, (c) the Receivable Assets originated, or purchased from an Originator, by the Contributor shall not be part of the Contributor’s insolvency or bankruptcy estate in the event an insolvency or delinquency proceeding or a bankruptcy petition or other action shall be commenced or filed by or against the Contributor under any insolvency or bankruptcy law and (d) the Purchased Receivables originated by any Originator shall not be part of such Originator’s insolvency or bankruptcy estate in the event an insolvency or delinquency proceeding or a bankruptcy or other action shall be commenced or filed by or against such Originator under any insolvency or bankruptcy law. In the event, however, that notwithstanding such intent and agreement, such transfers are deemed by any relevant Governmental Authority for any reason whatsoever, whether for limited purposes or otherwise, to be a security interest granted to secure indebtedness of the Contributor, the Contributor shall be deemed to have granted to the Company a perfected first priority security interest under Article 9 of the UCC in the applicable jurisdiction in all of its right, title and interest in, to and under, in each case, whether now owned or existing, or hereafter acquired or arising, and wherever located, the Receivable Assets originated or purchased by the Contributor and this Agreement shall constitute a security agreement under applicable law, securing the repayment of the amounts paid hereunder, subject to the other terms and conditions of this Agreement, together with such other obligations or interests as may arise hereunder in favor of the parties hereto.

 

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(c)           In connection with any transfer, assignment, conveyance and contribution pursuant to subsection 2.01(a), the Contributor hereby agrees to record and file, or cause to be recorded and filed, at its own expense, financing statements or other similar filings (and continuation statements with respect to such financing statements or other similar filings when applicable), (i) with respect to the Contributed Receivables and (ii) with respect to any other Receivable Assets for which an assignment or the creation of a security interest (as defined in the applicable UCC or other similar applicable laws, legislation or statute) may be perfected under the applicable UCC or other applicable laws, legislation or statute by such filing, in each case meeting the requirements of applicable law in such manner and in such jurisdictions as are necessary to perfect and maintain the perfection of the transfer, assignment, conveyance and contribution of such Contributed Receivables and any other Receivable Assets related thereto to the Company, and to deliver to the Company (a) on or prior to the date hereof, a photocopy, certified by a Responsible Officer of the Contributor to be a true and correct copy, of each such financing statement or other filing to be made on or prior to the date hereof and (b) within ten (10) days after the date hereof, a file-stamped copy or certified statement of such financing statement (or the similar filing) or other evidence of such filing.

 

(d)           In connection with the transfer, assignment, conveyance and contribution pursuant to subsection 2.01(a), the Contributor agrees at its own expense, with respect to the Contriubted Receivables, that it will or will cause, as agent of the Company, (A) (i) on the date hereof and thereafter, direct (or cause the Master Servicer to direct) each Originator to identify on its extraction records relating to Receivables from its master database of receivables, that the Contributed Receivables and all other Receivable Assets related thereto have been transferred, assigned, conveyed and contributed to the Company in accordance with this Agreement and (ii) acknowledge, deliver or transmit or cause to be delivered or transmitted to the Master Servicer a Daily Report as to all such Contributed Receivables, as of the applicable date of contribution and (B) use its reasonable best efforts to cause the applicable Originator of the Receivables purchased by the Contributor to (i) on the date hereof and thereafter to identify on its extraction records relating to Purchased Receivables from its master database of receivables, that all such Purchased Receivables and all other Receivable Assets related thereto have been transferred, assigned, conveyed and contributed to the Company in accordance with this Agreement and (ii) acknowledge, deliver or transmit or cause to be delivered or transmitted to the Master Servicer an Originator Daily Report as to all such Purchased Receivables, as of the applicable Contribution Date.

 

(e)           All Contributed Receivables hereunder shall be without recourse to, or any representation or warranty of any kind (express or implied) by, the Contributor except as otherwise specifically provided herein. The foregoing contribution, assignment, transfer and conveyance does not constitute and is not intended to result in the creation or assumption by the Company of any obligation of the Contributor or any other person in connection with the Contributed Receivables or any agreement or instrument relating thereto, including any obligation to any Obligor, except as expressly provided herein or in the Servicing Agreement.

 

2.02         Contribution Value . The contribution value (the “ Contribution Value ”) for the Contributed Receivables and the other Receivable Assets related thereto shall be deemed to be the product of (a) the aggregate outstanding Principal Amount of such Contributed Receivables as set forth in the applicable Originator Daily Report identifying such Contributed Receivables and (b) one (1) minus the Discounted Percentage applicable to Contributed Receivables. The Company shall cause to Master Servicer to calculate the Contribution Value on each Contribution Date, and in the absence of manifest error such amount shall be deemed to be conclusive. The Company shall cause to Master Servicer to maintain in its books and records a ledger entitled the “distributable assets ledger.”  For each Contributed Receivable, the Company shall credit to the distributable assets ledger an amount equal to the Contribution Value of such Contributed Receivable (net of the deductions referred to in Section 2.02(b), Section 2.06(a) or Section 2.06(b)).

 

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2.03         Intentionally Omitted .

 

2.04         No Repurchase . Subject to Section 2.06, the Contributor shall not have any right or obligation under this Agreement, by implication or otherwise, to repurchase from the Company any Receivable Assets or to rescind or otherwise retroactively effect any purchase of any Receivable Assets after the related Contribution Date; provided that the foregoing shall not be interpreted to limit the right of the Company to receive a Contributor Dilution Adjustment Payment, a Contributor Adjustment Payment or a Contributor Indemnification Payment.

 

2.05         Rebates, Adjustments, Returns, Reductions and Modifications . From time to time the Contributor may make a Dilution Adjustment to a Contributed Receivable in accordance with this Section 2.05 and Section 6.02; provided that if the Contributor or any Originator cancels an invoice related to such Contributed Receivable, either (i) such invoice must be replaced, or caused to be replaced, by the Contributor as part of a “credit and re-bill” (as defined in the definition of Dilution Adjustment) with an invoice relating to the same transaction of equal or greater Principal Amount within 5 Business Days of such cancellation, (ii) such invoice must be replaced, or caused to be replaced, by the Contributor as part of a “credit and re-bill” (as defined in the definition of Dilution Adjustment) with an invoice relating to the same transaction of a lesser Principal Amount within 5 Business Days of such cancellation and the Contributor must make a Contributor Dilution Adjustment Payment, to the Company Concentration Account, in an amount equal to the difference between such cancelled and replacement invoices or (iii) the Contributor must make a Contributor Dilution Adjustment Payment, to the relevant Company Receipts Account in an amount equal to the full value of such cancelled invoice pursuant to this Section 2.05. The Contributor agrees to pay to the Company, on the Contribution Date immediately succeeding the date any Dilution Adjustment is granted or made pursuant hereto, the amount of any such Dilution Adjustment (a “ Contributor Dilution Adjustment Payment ”). The amount of any Dilution Adjustment shall be set forth on the first Daily Report prepared after the date on which such Dilution Adjustment was granted or made.

 

2.06         Payments in Respect of Ineligible Receivables and Originator Indemnification Payments .

 

(a)           Adjustment Payment Obligation . In the event of a breach of any of the representations and warranties contained in Sections 4.02(a), 4.02(b), 4.02(c), 4.02(d) or 4.02(f) in respect of any Contributed Receivable or if the Company’s interest in any Contributed Receivable is not a full legal and beneficial ownership, the Contributor shall, within 30 days of the earlier of its knowledge or receipt of written notice of such breach or defect from the Company, remedy the matter giving rise to such breach of representation or warranty if such matter is capable of being remedied. If such matter is not capable of being remedied or is not so remedied within said period of 30 days, the Contributor upon request of the Company shall repurchase the relevant Contributed Receivable from the Company at a repurchase price (without duplication of any Contributor Dilution Adjustment Payments made pursuant to Section 2.05 hereof), equal to the original Principal Amount of such Contributed Receivable less Collections received by the Company in respect of such Contributed Receivable (the “ Contributor Adjustment Payment ”), which payment shall be in the same currency as such Contributed Receivable. Upon the payment of a Contributor Adjustment Payment hereunder, the Company shall pay to the Contributor all Collections received subsequent to such repurchase with respect to such repurchased Receivable. The parties agree that if there is a breach of any of the representations and warranties of a Contributor contained in Section 4.02(a), 4.02(b) or 4.02(c) in respect of or concerning any Contributed Receivable, the Contributor’s obligation to pay the Contributor Adjustment Payment under this Section 2.06 is a reasonable pre-estimate of loss and not a penalty (and neither the Company nor any other person or entity having an interest in this Agreement through the Company shall be entitled to any other remedies as a consequence of any such breach).

 

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(b)           Special Indemnification . In addition to its obligations under Section 8.02 hereunder, the Contributor agrees to pay, indemnify and hold harmless (without duplication of any Contributor Dilution Adjustment Payments made pursuant to Section 2.05 hereof) the Company from any loss, liability, expense, damage or injury which may at any time be imposed on, incurred by or asserted against the Company in any way relating to or arising out of (i) any Contributed Receivable becoming subject to any defense, dispute, offset or counterclaim of any kind (other than as expressly permitted by this Agreement or the Pooling Agreement or any Supplement) or (ii) the Contributor breaching any covenant contained herein with respect to any Contributed Receivable and such Contributed Receivable (or a portion thereof) ceasing to be an Eligible Receivable (each of the foregoing events or circumstances being a “ Contributor Indemnification Event ”). The amount of such indemnification shall be equal to the original Principal Amount of such Contributed Receivable less Collections received by the Company in respect of such Contributed Receivable (the “ Contributor Indemnification Payment ”). Such payment shall be made on or prior to the 10th Business Day after the day the Company requests such payment or the Contributor obtains knowledge thereof unless such Contributor Indemnification Event shall have been cured on or before such 10th Business Day; provided , however , that in the event that (x) an Originator Termination Event with respect to the Contributor has occurred and is continuing or (y) the Company shall be required to make a payment with respect to such Contributed Receivable pursuant to Section 2.05 of the Pooling Agreement and the Company has insufficient funds to make such a payment, the Contributor shall make such payment immediately. The Company shall have no further remedy against the Contributor in respect of such a Contributor Indemnification Event unless the Contributor fails to make a Contributor Indemnification Payment on or prior to such 10th Business Day or on such earlier day in accordance with the proviso set forth in this subsection 2.06(b). Upon receiving a Contributor Indemnification Payment, the Company shall pay to the Contributor all Collections received subsequent to such payment with respect to the Contributed Receivable in respect of which a Contributor Indemnification Payment is made.

 

2.07         Certain Charges . The Contributor and the Company hereby agree that late charge revenue, reversals of discounts, other fees and charges and other similar items, whenever created, accrued in respect of a Contributed Receivable shall be the property of the Company notwithstanding the occurrence of an Early Originator Termination or Early Program Termination and all collections with respect thereto shall continue to be allocated and treated as collections in respect of such Contributed Receivable.

 

2.08         Certain Allocations . The Contributor, as Local Servicer, hereby agrees that if the Contributor can attribute a Collection to a specific Obligor and a specific Receivable, then such Collection shall be applied to pay such Receivable of such Obligor; provided , however , that if the Contributor cannot attribute a Collection to a specific Receivable, then such Collection shall be applied to pay the Receivables of such Obligor in the order of maturity of such Receivables, beginning with the Receivable that has been outstanding the longest and ending with the Receivable that has been outstanding the shortest.

 

2.09         Power of Attorney . The Contributor authorizes each of the Company and the Trustee, and hereby irrevocably appoints each of the Company and the Trustee, as its attorney-in-fact coupled with an interest, with full power of substitution and with full authority in place of the Contributor, to take any and all steps in the Contributor’s name and on behalf of the Contributor, that are necessary or desirable, in the determination of the Company or the Trustee (as applicable), to collect amounts due under the Contributed Receivables, including:  (a) endorsing the Contributor’s name on checks and other instruments representing Collections of Contributed Receivables and enforcing the Receivable Assets related thereto; (b) taking any of the actions provided for under Section 7.03; and (c) enforcing the Receivable Assets, including to ask, demand, collect, sue for, recover, compromise, receive and give aquittance and receipts for moneys due and to become due under or in connection with therewith and to

 

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file any claims or take any action or institute any proceedings that the Company or the Trustee (as applicable) (or any designee thereof) may deemed to be necessary or desirable for the collection thereof or to enforce compliance with the other terms and conditions of, or to perform any obligations or enforce any rights of the Contributor in respect of, the Receivable Assets. The rights under this Section 2.09 shall not be exercisable with respect to the Contributor unless an Originator Termination Event has occurred and is continuing with respect to the Contributor or a Program Termination Event as set forth in Section 7.02(a) hereof or an Early Amortization Event has occurred and is continuing.

 

3.             CONDITIONS TO CONTRIBUTIONS

 

3.01         Conditions Precedent to Contribution . The Contributor shall not be entitled to contribute Eligible Receivables to the Company and the Company shall not be obliged to accept such contribution unless the following conditions precedent have been satisfied on or prior to the date hereof:

 

(a)           the Company shall have received copies of duly adopted resolutions (or, if applicable, a unanimous consent) of the Board of Directors of the Contributor, as in effect on the date hereof, authorizing the execution of this Agreement and the consummation of the Transactions pursuant to the Transaction Documents;

 

(b)           the Company shall have received copies of a Certificate of Good Standing for the Contributor issued by the Secretary of State of Delaware;

 

(c)           the Company shall have received copies of a certificate of a Responsible Officer of the Contributor certifying (i) the names and signatures of the officers or any managers authorized on its behalf to execute this Agreement and the other Transaction Documents to which it is a party and any other documents to be delivered by it hereunder or thereunder, (ii) that attached thereto is a true, correct, and complete copy of the Contributor’s certificate of formation and its operating agreement, (iii) that attached thereto is a true correct and complete copy of the document referred to in clause (a) above and (iv) that attached thereto is a true, correct and complete copy of the document referred to in clause (b) above;

 

(d)           the Company shall have received copies of fully executed counterparts of this Agreement, the Pooling Agreement, the Servicing Agreement, the Series 2000-1 Supplement, the U.S. Receivables Purchase Agreement, the U.K. Receivables Purchase Agreement, the Omnibus Receivables Purchase Agreement and the Investor Certificates;

 

(e)           the Company shall have received copies of legal opinions, in each case, dated the date hereof and addressed to each Funding Agent, the Company and the Trustee:

 

(i)            from Counsel to each Originator in form and substance satisfactory to the Company, the Trustee and each Funding Agent; and

 

(ii)           from Counsel to the Contributor, in form and substance satisfactory to the Company, the Trustee and each Funding Agent.

 

(f)            the Company shall have received, to the extent in writing, the Policies of the Contributor and each Originator;

 

(g)           the Company shall have received copies of proper financing statements, which will be filed on or prior to the date hereof, naming the Contributor and each Originator as the debtor in favor of, in each case, the Company as the secured party or other similar instruments or documents as

 

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may be necessary or in the reasonable opinion of the Company or any Funding Agent, desirable under the UCC of all appropriate jurisdictions to perfect the Company’s ownership interest in the Receivable Assets contributed hereunder;

 

(h)           the Company shall have received certified copies of requests for information or copies (or a similar search report certified by parties acceptable to the Trustee and each Funding Agent) dated a date reasonably near the date hereof listing all effective financing statements or charges which name the Contributor (under its present name and any previous name) as debtor and which are filed in jurisdictions in which the filings were made pursuant to clause (h) above, together with copies of such financing statements (none of which shall cover any Receivables or Receivable Assets related thereto, if so requested by the Company or any Funding Agent);

 

(i)            the Company shall have received a solvency certificate delivered by the Contributor with respect to the Contributor’s solvency in the form of Schedule 1;

 

(j)            the Company shall have received the most recent audited consolidated financial statements of the Contributor and its consolidated Subsidiaries;

 

(k)           the Company shall be satisfied that the Contributor’s and any Originator’s systems, procedures and record keeping relating to the Contributed Receivables are sufficient and satisfactory in order to permit the contribution, assignment, transfer and conveyance of such Contributed Receivables and the administration of such Contributed Receivables in accordance with the terms and intent of this Agreement;

 

(l)            the Company shall have received a solvency certificate delivered by each Originator with respect to each Originator’s solvency in the form attached to the applicable Receivables Purchase Agreement;

 

(m)          Intentionally Omitted ;

 

(n)           the Company shall have received such other approvals, opinions or documents as the Company may reasonably request; and

 

(o)           if applicable, all conditions precedent to the sale of the Purchased Receivables from the related Originator to the Contributor contained in the related Receivables Purchase Agreement shall have been satisfied.

 

3.02         Conditions Precedent to all Contributions of Receivables . The obligation of the Company to accept a contribution of Receivable Assets on each Contribution Date is subject to the satisfaction of the following conditions precedent, that, on and as of the related Contribution Date, the following statements shall be true (and the delivery by or on behalf of the Contributor of the Originator Daily Report for such Contributed Receivables on such Contribution Date shall constitute a representation and warranty by the Contributor that on such Contribution Date the statements in clauses (a) and (b) below are true):

 

(a)           the representations and warranties of the Contributor contained in Sections 4.01 shall be true and correct on and as of such Contribution Date as though made on and as of such date, except insofar as such representations and warranties are expressly made only as of another date (in which case they shall be true and correct as of such other date);

 

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(b)           after giving effect to such contribution, no Originator Termination Event or Potential Originator Termination Event with respect to the Contributor or any Originator and no Potential Termination Event or Program Termination Event shall have occurred and be continuing;

 

(c)           after giving effect to such contribution, no Early Amortization Event or Potential Early Amortization Event with respect to any Outstanding Series shall have occurred and be continuing;

 

(d)           since the date hereof, no material adverse change has occurred in the overall rate of collection of the Contributed Receivables;

 

(e)           the Company shall have received such other approvals, opinions or documents as the Company may reasonably request; and

 

(f)            if applicable, all conditions precedent to the sale of such Eligible Receivables from the related Originator to the Contributor contained in the related Receivables Purchase Agreement shall have been satisfied;

 

provided , however , that the failure of the Contributor to satisfy any of the foregoing conditions shall not prevent the Contributor from subsequently contributing Eligible Receivables originated by it, or purchased by it pursuant to a Receivables Purchase Agreement, upon satisfaction of all such conditions.

 

3.03         Conditions Precedent to the Contributor’s Obligations on the Initial Contribution Date and each Contribution Date thereafter . The obligations of the Contributor on the date hereof and each Contribution Date thereafter shall be subject to the conditions precedent, which may be waived by the Contributor, that the Contributor shall have received on or before the date hereof (with respect to the initial contribution hereunder) and for subsequent contributions, the relevant Contribution Date, the following, each in form and substance satisfactory to the Contributor:

 

(a)           a Certificate of Good Standing for the Company issued by the Secretary of State of Delaware; and

 

(b)           a certificate of a Responsible Officer of the Company certifying (i) the names and signatures of the managers authorized on its behalf to execute this Agreement and the other Transaction Documents to which it is a party and any other documents to be delivered by it hereunder or thereunder, (ii) that attached thereto is a true, correct and complete copy of the Company’s Certificate of Formation and Limited Liability Company Agreement, and (iii) that attached thereto is a true correct and complete copy of duly adopted resolutions of the Shareholders of the Company, authorizing the execution of this Agreement and the consummation of the Transactions pursuant to the Transaction Documents.

 

4.             REPRESENTATIONS AND WARRANTIES

 

4.01         Representations and Warranties of the Contributor . The Contributor represents and warrants to the Company as of the date hereof that:

 

(a)           Organization; Powers . It (i) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) has all requisite power and authority to own its property and assets and to carry on its business as now conducted and as proposed to be conducted, (iii) is qualified to do business in, and is in good standing in, every jurisdiction where the nature of its business so requires, except where the failure so to qualify could not reasonably be expected to result in a Material Adverse Effect with respect to it and (iv) has the limited liability company power and authority to execute, deliver and perform its obligations under this Agreement and each of the other

 

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Transaction Documents to which it is a party and each other agreement or instrument contemplated hereby or thereby to which it is or will be a party.

 

(b)           Authorization . The execution, delivery and performance by the Contributor of each of the Transaction Documents to which it is a party and the performance of the Transactions (i) have been duly authorized by all requisite or limited liability company and, if applicable and required, member action and (ii) will not (A) violate (1) any Requirement of Law applicable to it or (2) any provision of any Transaction Document or other material Contractual Obligation to which it is a party or by which it or any of its property is or may be bound, (B) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, or give rise to any right to accelerate or to require the prepayment, repurchase or redemption of any obligation under any Transaction Document or any other material Contractual Obligation to which it is a party or by which it or any of its property is or may be bound except where any such conflict, violation, breach or default referred to in clause (A) or (B), individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect with respect to it or (C) result in the creation or imposition of any Lien upon the Contributed Receivables (other than Permitted Liens).

 

(c)           Enforceability . Each of this Agreement and the other Transaction Documents to which it is a party have been duly executed and delivered by the Contributor and constitutes a legal, valid and binding obligation of the Contributor enforceable against such Contributor in accordance with its respective terms, subject (a) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors’ rights generally, from time to time in effect and (b) to general principles of equity.

 

(d)           Governmental Approvals . No action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the execution and delivery of this Agreement or the consummation of the Transactions contemplated hereby, except for (i) the filing of UCC financing statements (or other similar filings) in any applicable jurisdictions necessary to perfect the Company’s ownership interest in the Contributed Receivables pursuant to subsection 3.01(h), (ii) such as have been made or obtained and are in full force and effect and (iii) such actions, consents, approvals and filings the failure of which to obtain or make could not reasonably be expected to result in a Material Adverse Effect with respect to it.

 

(e)           Litigation; Compliance with Laws .

 

(i)            There are no actions, suits or proceedings at law or in equity or by or before any Governmental Authority now pending or, to the knowledge of the Contributor, threatened in writing against the Contributor or any Originator in respect of which there exists a reasonable possibility of an outcome that would result in a Material Adverse Effect with respect to it; and

 

(ii)           neither it nor any Originator is in default with respect to any judgment, writ, injunction, decree or order of any Governmental Authority, where such violation or default could reasonably be expected to result in a Material Adverse Effect with respect to it.

 

(f)            Agreements .

 

(i)            Neither it, nor any Originator is a party to any agreement or instrument or subject to any corporate restriction that has resulted or could reasonably be expected to result in a Material Adverse Effect with respect to it; and

 

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(ii)           neither it, nor any Originator is in default in any manner under any provision of any Contractual Obligation to which it is a party or by which it or any of its properties or assets are bound, where such default could reasonably be expected to result in a Material Adverse Effect with respect to it.

 

(g)           Federal Reserve Regulations . Neither it nor any Originator is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of buying or carrying Margin Stock.

 

(h)           Investment Company Act . It is not an “investment company” as defined in, or subject to regulation under, the 1940 Act.

 

(i)            Tax Returns . It has filed or caused to be filed all material tax returns and has paid or caused to be paid or made adequate provision for all taxes due and payable by it and a