TABLE OF CONTENTS

 

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ARTICLE I DEFINITIONS			2
SECTION 1.01		Definitions.	2
SECTION 1.02		Other Definitional Provisions.	2
ARTICLE II PARTICIPATION IN RECEIVABLES, REPRESENTATIONS WARRANTIES AND COVENANTS			3
SECTION 2.01		Participation.	3
SECTION 2.02		Acceptance by Trustee.	9
SECTION 2.03		Representations and Warranties of the Company.	9
SECTION 2.04		Representations and Warranties of the Company Relating to the Receivables.	13
SECTION 2.05		Adjustment Payment for Ineligible Receivables.	14
SECTION 2.06		Purchase of Investor Certificateholders’ Interest in the Participation.	16
SECTION 2.07		Affirmative Covenants of the Company.	16
SECTION 2.08		Negative Covenants of the Company.	20
SECTION 2.09		Addition of Approved Currency, Approved Originator and Approved Obligor Country; Approved Acquired Line of Business Receivables.	24
SECTION 2.10		Removal and Withdrawal of Originators and Approved Originators.	28
SECTION 2.11		FX Hedging Policy.	30
SECTION 2.12		Notices, Reports, Directions by Master Servicer.	30
SECTION 2.13		Power of Attorney.	30
ARTICLE III RIGHTS OF HOLDERS AND ALLOCATION AND APPLICATION OF COLLECTIONS			31
SECTION 3.01		Establishment of the Company Concentration Accounts, Series Concentration Accounts and General Reserve Accounts; Certain Payments and Allocations.	31

 

 

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ARTICLE IV	ARTICLE IV IS RESERVED AND MAY BE SPECIFIED IN ANY SUPPLEMENT WITH RESPECT TO THE SERIES RELATING THERETO			39
ARTICLE V THE INVESTOR CERTIFICATES AND EXCHANGEABLE COMPANY INTEREST				39
SECTION 5.01			The Investor Certificates.	39
SECTION 5.02			Authentication of Certificates.	40
SECTION 5.03			Registration of Transfer and Exchange of Investor Certificates.	41
SECTION 5.04			Additional Issuance of Certificates.	43
SECTION 5.05			Mutilated, Destroyed, Lost or Stolen Investor Certificates.	43
SECTION 5.06			Persons Deemed Owners.	44
SECTION 5.07			Appointment of Paying Agent; Distributions by Paying Agent.	44
SECTION 5.08			Access to List of Investor Certificateholders’ Names and Addresses.	45
SECTION 5.09			Authenticating Agent	45
SECTION 5.10			Tax Treatment.	47
SECTION 5.11			Exchangeable Company Interest.	47
SECTION 5.12			Book-Entry Certificates.	50
SECTION 5.13			Notices to Clearing Agency.	51
SECTION 5.14			Definitive Certificates.	51
SECTION 5.15			Securities Act Restrictions.	51
ARTICLE VI OTHER MATTERS RELATING TO THE COMPANY				52
SECTION 6.01			Liability of the Company.	52
SECTION 6.02			Limitation on Liability of the Company.	52
SECTION 6.03			Merger or Consolidation of, or Assumption of the Obligations of, Huntsman International or the Company.	52

 

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ARTICLE VII EARLY AMORTIZATION EVENTS			54
SECTION 7.01		Early Amortization Events.	54
SECTION 7.02		Additional Rights upon the Occurrence of Certain Events.	55
ARTICLE VIII THE TRUSTEE			56
SECTION 8.01		Duties of Trustee.	56
SECTION 8.02		Rights of the Trustee.	58
SECTION 8.03		Trustee Not Liable for Recitals.	59
SECTION 8.04		Trustee May Own Investor Certificates.	60
SECTION 8.05		Trustee’s and the Liquidation Servicer’s Fees and Expenses.	60
SECTION 8.06		Eligibility Recitals.	61
SECTION 8.07		Resignation or Removal of Trustee.	61
SECTION 8.08		Successor Trustee.	62
SECTION 8.09		Merger or Consolidation of Trustee.	62
SECTION 8.10		Appointment of Co-Trustee or Separate Trustee.	63
SECTION 8.11		Tax Returns.	64
SECTION 8.12		Trustee May Enforce Claims Without Possession of Investor Certificates.	64
SECTION 8.13		Suits for Enforcement.	65
SECTION 8.14		Rights of Investor Certificateholders to Direct Trustee.	65
SECTION 8.15		Representations and Warranties of Trustee.	65
SECTION 8.16		Maintenance of Office or Agency.	66
SECTION 8.17		Limitation of Liability.	66
ARTICLE IX TERMINATION			66
SECTION 9.01		Termination of Trust.	66

 

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			Page
SECTION 9.02		Optional Purchase and Final Termination Date of Investor Certificates of Any Series.	67
SECTION 9.03		Final Payment with Respect to Any Series.	68
SECTION 9.04		The Company’s Termination Rights.	70
ARTICLE X MISCELLANEOUS PROVISIONS			70
SECTION 10.01		Amendment.	70
SECTION 10.02		Protection of Right, Title and Interest to Trust.	72
SECTION 10.03		Governing Law.	73
SECTION 10.04		Notices.	73
SECTION 10.05		Severability of Provisions.	74
SECTION 10.06		Assignment.	74
SECTION 10.07		Investor Certificates Nonassessable and Fully Paid.	74
SECTION 10.08		Further Assurances.	74
SECTION 10.09		No Waiver; Cumulative Remedies.	75
SECTION 10.10		Counterparts.	75
SECTION 10.11		Third-Party Beneficiaries.	75
SECTION 10.12		Actions by Investor Certificateholders.	75
SECTION 10.13		Merger and Integration.	75
SECTION 10.14		Headings.	76
SECTION 10.15		No Setoff.	76
SECTION 10.16		No Bankruptcy Petition.	76
SECTION 10.17		Limitation of Liability.	76
SECTION 10.18		Certain Information.	77
SECTION 10.19		Responsible Officer Certificates; No Recourse.	77
SECTION 10.20		Effectiveness of this Agreement.	77

 

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EXHIBITS

 

Exhibit A		Form of Company Annual Opinion of Counsel
Exhibit B		Form of Daily Report
Exhibit C		Form of Monthly Settlement Report

 

SCHEDULES

 

Schedule 1		Identification of the (A) Company Concentration Accounts, (B) Series Concentration Accounts and Subaccounts, (C) Collection Accounts and Master Collection Accounts, (D) Company Receipts Accounts and (E) Lockbox Accounts
Schedule 2		Location of Records of the Company
Schedule 3		Receivables Specification and Exception Schedule
Schedule 4		Designated Line of Business
Schedule 5		FX Hedging Policy
Schedule 6		Internal Operating Procedures Memorandum

 

ANNEX

 

Annex X

Definitions

 

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This SECOND AMENDED AND RESTATED POOLING AGREEMENT dated as of April 18, 2006 (this “ Agreement ”) is entered into by HUNTSMAN RECEIVABLES FINANCE LLC, a limited liability company organized under the laws of the State of Delaware (the “ Company ”), HUNTSMAN (EUROPE) BVBA, a corporation organized under the laws of Belgium (in its capacity as master servicer, the “ Master Servicer ”) and J.P. MORGAN BANK (IRELAND) plc, a banking institution organized under the laws of Ireland, not in its individual capacity, but solely as trustee (in such capacity, the “ Trustee ”).

 

W I T N E S S E T H :

 

WHEREAS, (i) Huntsman International LLC, as buyer, Tioxide Americas Inc., Huntsman Propylene Oxide Ltd., Huntsman Ethyleneamines Ltd., Huntsman Expandable Polymers Company, LC, Huntsman Polymers Corporation, Huntsman Petrochemical Corporation and Huntsman International Fuels L.P., (each a “ U.S. Originator ” and together the “ U.S. Originators ”) entered into the Second Amended and Restated U.S. Receivables Purchase Agreement dated as of April 18, 2006 (as amended, supplemented or otherwise modified from time to time, the “ U.S. Receivables Purchase Agreement ”) relating to the sale of certain Receivables originated by the US Originators, (ii) Huntsman International LLC, as buyer, and Tioxide Europe Limited, Huntsman Surface Sciences UK Ltd. and Huntsman Petrochemicals (UK) Limited (each, a “ UK Originator ” and together, the “ UK Originators ”) entered into the Amended and Restated UK Receivables Purchase Agreement dated as of April 18, 2006 (as amended, supplemented or otherwise modified from time to time, the “ UK Receivables Purchase Agreement ”) relating to the sale of certain Receivables originated by the UK Originators, (iii) the Company, the Master Servicer, Huntsman Holland B.V. (the “ Dutch Originator ”), Tioxide Europe S.L. and Huntsman Performance Products Spain S.L. (each, a “ Spanish Originator ” and together, the “ Spanish Originators ”), Tioxide Europe S.A.S., and Huntsman Surface Sciences (France) S.A.S. (each, a “ French Originator ” and together, the “ French Originators ”), Tioxide Europe S.r.l., Huntsman Surface Sciences Italia S.r.l. and Huntsman Patrica S.r.l (each, an “ Italian Originator ” and together, the “ Italian Originators ” and together with the Dutch Originator, the Italian Originators, the Spanish Originators, the French Originators and the UK Originators, the “ European Originators ”) entered into the Amended and Restated Omnibus Receivables Purchase Agreement dated as of April 18, 2006 (as amended, supplemented or otherwise modified from time to time, the “ Omnibus Receivables Purchase Agreement ”) relating to the sale of certain Receivables originated by such Originators, (iv) the Company and Huntsman International LLC, as contributor, entered into the Amended and Restated Contribution Agreement dated April 18, 2006 (as amended, supplemented or otherwise modified from time to time, the “ Contribution Agreement ” and together with the U.S. Receivables Purchase Agreement, the UK Receivables Purchase Agreement and the Omnibus Receivables Purchase Agreement, the “ Origination Agreements ”) pursuant to which Huntsman International LLC (the “ Contributor ”) agreed to contribute, from time to time certain Receivables it has purchased or may purchase from the U.S. Originators and the European Originators as well as the Receivables originated by it and (v) the Company, the Master Servicer, the Liquidation Servicer, the Local Servicers party thereto and the Trustee entered into the Second Amended and Restated Servicing Agreement dated as of April 18, 2006 (as further amended, supplemented or otherwise modified from time to time, the “ Servicing Agreement ”) pursuant to which, among other things, the Master Servicer appointed each of the U.S. Originators and the European Originators (collectively, the “ Originators ”) as a local servicer (in such capacity, a “ Local Servicer ”) for certain Receivables contributed to the Company;

 

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WHEREAS, the parties hereto entered into the Pooling Agreement on December 21, 2000 (as amended and restated on June 26, 2001 and as further amended and restated as of April 18, 2006, the “ Pooling Agreement ”) in order to create a master trust to which the Company granted a Participation in (without effecting any transfer or conveyance of any right, title or interest hereunder) all of its right, title and interest in, to and under the Receivables, Related Property and other Participation Assets then or thereafter owned by the Company and such master trust agreed, from time to time at the direction of the Company (or the Master Servicer on its behalf), to issue one or more Series of Investor Certificates, representing interests in such Participation as specified in the Supplement related to such Series (each as defined herein);

 

WHEREAS, the Company, the Master Servicer and the Trustee now desire to further amend, restate and replace the Pooling Agreement in its entirety, with the terms and conditions herein.

 

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

 

ARTICLE I

 

DEFINITIONS

 

SECTION 1.01            Definitions.

 

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

 

SECTION 1.02            Other Definitional Provisions.

 

(a)            All terms defined or incorporated by reference in this Agreement, the Servicing Agreement or in any Supplement shall have such defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.

 

(b)            As used herein and in any certificate or other document made or delivered pursuant hereto or thereto, accounting terms not defined herein or incorporated by reference herein, and accounting terms partly defined herein or incorporated by reference herein to the extent not defined, shall have the respective meanings given to them under GAAP. To the extent that the definitions of accounting terms herein or incorporated by reference herein are inconsistent with the meanings of such terms under GAAP, the definitions contained herein or incorporated by reference herein shall control.

 

(c)            The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; and Section, subsection, Schedule, Exhibit and Appendix references contained in this Agreement are references to Sections, subsections, Schedules, Exhibits and Appendices in or to this Agreement unless otherwise specified.

 

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(d)            The definitions contained herein or incorporated by reference herein are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

 

(e)            Where a definition contained herein or incorporated by reference herein specifies that such term shall have the meaning set forth in the related Supplement, the definition of such term set forth in the related Supplement may be preceded by a prefix indicating the specific Series or Class to which such definition shall apply.

 

(f)             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.

 

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

 

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

 

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

 

(j)             References to the Pooling Agreement in any other document or agreement shall be deemed to be references to this agreement as amended and restated as of the date hereof and all amendments and supplements hereto and all assignments hereof.

 

ARTICLE II

 

PARTICIPATION IN RECEIVABLES,
REPRESENTATIONS WARRANTIES AND COVENANTS

 

SECTION 2.01            Participation.

 

(a)            Grant of Participation . By execution and delivery of this Agreement the Company, as beneficial owner of the Receivables and the Collections, grants to the Trust a participation (the “ Participation ”) in and to all proceeds of, or payments in respect of, any and all of the following (“ Participation Amounts ”):

 

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(i)             the Receivables contributed to the Company by the Contributor from time to time prior to but not including the Trust Termination Date;

 

(ii)            the Receivables subrogated, sold or otherwise transferred to the Company by Tioxide Europe SAS, Huntsman Surface Sciences (France) S.A.S. and any other Approved Originator from time to time prior to but not including the Trust Termination Date;

 

(iii)           the Related Property;

 

(iv)           all Collections;

 

(v)            any FX Hedging Agreements;

 

(vi)           all rights (including rescission, replevin or reclamation) relating to any Receivable or arising therefrom;

 

(vii)          each of the Origination Agreements, the Collection Account Agreements and the Servicing Agreement, including, in respect of each agreement, (A) all rights of the Company to receive monies due and to become due under or pursuant to such agreement, whether payable as fees, expenses, costs or otherwise, (B) all rights of the Company to receive proceeds of any insurance, indemnity, warranty or guaranty with respect to such agreement, (C) claims of the Company for damages arising out of or for breach of or default under such agreement, (D) the right of the Company to amend, waive or terminate such agreement, to perform thereunder and to compel performance and otherwise exercise all remedies thereunder and (E) all other rights, remedies, powers, privileges and claims of the Company under or in connection with such agreement (whether arising pursuant to such agreement or otherwise available to the Company at law or in equity), including the rights of the Company to enforce such agreement and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or in connection therewith (all of the foregoing set forth in subclauses (vii) (A) through (E) , inclusive, the “ Transferred Agreements ”);

 

(viii)         the Collection Accounts and Master Collection Accounts, including (A) all funds and other evidences of payment held therein and all certificates and instruments, if any, from time to time representing or evidencing the Collection Accounts and Master Collection Accounts or any funds and other evidences of payment held therein, (B) all investments of such funds held in the Collection Accounts and Master Collection Accounts and all certificates and instruments from time to time representing or evidencing such investments, (C) all notes, certificates of deposit and other instruments from time to time hereafter delivered or transferred to, or otherwise possessed by, the Trustee for and on behalf of the Company in substitution for the then existing Collection Accounts and Master Collection Accounts and (D) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in

 

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exchange for the then existing Collection Accounts and Master Collection Accounts; and

 

(ix)            the Company Concentration Accounts, including (A) all funds and other evidences of payment held therein and all certificates and instruments, if any, from time to time representing or evidencing the Company Concentration Accounts or any funds and other evidences of payment held therein, (B) all investments of such funds held in the Company Concentration Accounts and all certificates and instruments from time to time representing or evidencing such investments, (C) all notes, certificates of deposit and other instruments from time to time hereafter delivered or transferred to, or otherwise possessed by, the Trustee for and on behalf of the Company in substitution for the then existing Company Concentration Accounts, and (D) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for the then existing Company Concentration Accounts;

 

(x)             the General Reserve Accounts, including all funds and other evidences of payment held therein with respect to proceeds from Eligible Investments; and

 

(xi)            all proceeds of or payments in respect of any and all of the foregoing clauses (i) through (vii) (including proceeds that constitute property of the types described in clause (vii) above and including Collections.

 

Such assets described in the foregoing clauses (i) through (xi) , shall constitute the “ Participation Assets ”.

 

Pursuant to the Participation, the Company shall, upon receipt by it of any Participation Amounts pay to the Trustee in accordance with the terms hereof an amount calculated by reference to such Participation Amount and equal to such amount as is required to be so paid pursuant to Section 3.01(f)(iv) .

 

The obligation of the Company to pay to the Trustee amounts calculated by reference to each Participation Amount shall constitute an obligation to account for and pay such amounts so calculated to the Trustee and shall not constitute, and shall not be construed as, the repayment or discharge of any loan or advance or the payment of any amount by way of interest or of an obligation to account for such Participation Amounts thereunder (but rather to pay amounts calculated by reference thereto) and, notwithstanding any of the other provisions of this Agreement, the Participation shall not constitute or effect any transfer or conveyance of any right, title or interest in or to any of the Participation Assets subject to the security interest granted hereunder to the Trustee. Notwithstanding any of the said provisions, the Company shall continue to be the beneficial owner of the Receivables and the Collections, subject only to the security interest granted under S ection 2.01(b) by the Company to the Trustee on behalf of the Trust.

 

(b)            Grant of Security Interest . The Company hereby grants to the Trustee for the benefit of the Holders to secure the Company Obligations a continuing perfected first priority security interest in all of the Company’s present and

 

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future right, title and interest in, to and under the Receivables contributed by the Contributor to the Company and the Participation Assets related thereto and its beneficial right and title in and to the Company Concentration Accounts, and agrees that this Agreement shall be deemed to constitute a security agreement under applicable law in favor of the Trustee, for the benefit of the Investor Certificateholders.

 

The security interest granted in favor of the Trust pursuant to this S ection 2.01(b) shall be granted to the Trustee, on behalf of the Trust, and each reference in this Agreement to such security interest shall be construed accordingly. In connection with the foregoing security interest, each of the Company and the Master Servicer agrees to deliver to the Trustee each Participation Asset evidencing a Receivable or any Related Property with respect thereto (including any original document or instrument necessary to effect or to perfect such security interest) in which the participation and security interest is being perfected under the relevant UCC or otherwise by possession and not by filing a financing statement or similar document. Without limiting the generality of the foregoing sentence, each of the Company and the Master Servicer hereby agrees to deliver or cause to be delivered to the Trustee an original of (i) any promissory note or other instrument evidencing a Receivable pledged to the Trust and (ii) any chattel paper evidencing a Receivable pledged to the Trust or to stamp any such promissory note or other instrument or chattel paper in large block lettering with the following language: “THIS PROMISSORY NOTE/CHATTEL PAPER IS SUBJECT TO THE LIEN OF THE TRUSTEE PURSUANT TO THE POOLING AGREEMENT DATED AS OF DECEMBER 21, 2000, AS AMENDED AND RESTATED ON JUNE 26, 2001, AND AS FURTHER AMENDED AND RESTATED AS OF APRIL 18, 2006, AMONG HUNTSMAN RECEIVABLES FINANCE LLC, HUNTSMAN (EUROPE) BVBA AND J.P. MORGAN BANK (IRELAND) PLC” AND ANY AMENDMENTS OR SUPPLEMENTS THERETO.”

 

The foregoing grant of the Participation and the security interest does not constitute and is not intended to result in a creation or an assumption by the Trust, the Trustee, any Investor Certificateholder or the Company, in their capacity as a Holder, of any obligation of the Master Servicer, the Company, an Originator or any other Person in connection with the Receivables or under any agreement or instrument relating thereto, including, any obligation to any Obligor.

 

In this Agreement (including Annex X ), notwithstanding any of the other provisions of this Agreement or any of the Transaction Documents:

 

(i)             all references to the Company having an interest in Receivables or Collections shall be construed as references to the Company being the sole beneficial owner of such Receivables and Collections, subject only to the security interest granted by the Company under Section 2.01 ;

 

(ii)            all references to the Trustee or Investor Certificateholders having any entitlement to or interest in any Receivables or Collections shall be construed as references to their having a right of participation and a security interest as provided for in Section 2.01 and all references to their having a right to receive Collections or to Collections being received or held for their benefit shall be construed as references to

 

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their having a right to receive amounts calculated by reference to Collections pursuant to the Participation granted hereunder and to such amounts being received or held for their benefit;

 

(iii)           all references to the Trustee allocating to the Company any Collections or distributing or transferring any amount to the Company (whether by transfer to any Company Receipts Account or otherwise) from a Company Concentration Account shall be construed as references to the Trustee making such allocations, distributions and transfers by way of release of such amounts from the security interest created under Section 2.01(b) in recognition of the payment by the Company in whole or in part of amounts payable by it under the Participation granted under Section 2.01(a) above;

 

(iv)           all references to the Trustee transferring any amounts from any Company Concentration Account to any Series Concentration Account shall be construed as references to the Trustee making such transfers (with the written authority of the Company) pursuant to the Company’s obligation to make payments to the Trustee for the benefit of the Investor Certificateholders pursuant to the Participation granted under Section 2.01(a) ;

 

(v)            all references to the Trustee allocating to the Company any Series Amounts (or parts thereof) or making any distribution to the Company from any Series Concentration Account or subaccount thereof or transferring any amount from any Series Concentration Account to any Company Receipts Account shall be construed as references to the Trustee making such allocations, distributions and transfers on behalf of the relevant Series (and out of funds beneficially owned by the Series) in consideration of the granting by the Company to the Trustee of the Participation described in Section 2.01(a) (such consideration being in addition, where applicable, to the payment of the Initial Invested Amount in accordance with Section 5.02 );

 

(vi)           it is hereby acknowledged that any Series Amounts shall be held by the Trustee for the account of Investor Certificateholders of the relevant Series (as the beneficial owners thereof), subject to the Trustee being hereby authorized by the relevant Series to apply such amounts on behalf of the Series in accordance with the provisions of the Transaction Documents. Accordingly, all references to the Company having any interest in any Series Amounts shall be construed as references to the Company being entitled to the benefit of the allocations, distributions and transfers referred to in (v) above;

 

(vii)          all references to the Company purchasing any interest in Receivables or Collections from the Trustee or any Certificateholders including any such references contained in Section 2.06 and 9.02 shall be construed as references to the Company discharging all or part (as appropriate) of its obligations in respect of the Participation granted by it in respect of such Receivables and Collections and thereby procuring a

 

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corresponding release, to the same extent, of any related security interest granted by it in respect of such Receivables and Collections;

 

(viii)         any (a) requirement on the Company to deal or not to deal with Receivables or Collections in any particular way and any restrictions on the exercise by the Company of any of its continuing rights of beneficial ownership in respect of the Receivables and Collections and (b) authority given by the Company to the Trustee in relation to any Collection Account and any Company Concentration Account shall be taken as forming part of the security interest granted to the Trustee hereunder for the benefit of the Investor Certificateholders (which interest secures the obligations of the Company under the participation granted by it hereunder) and shall subsist only for so long as the said security interest subsists and until the same is fully discharged;

 

(ix)            all references to the Company agreeing to decrease the amount of its Exchangeable Company Interest by any amount (the “ Relevant Amount ”) shall be taken to be references to the Company agreeing to pay the Relevant Amount pursuant to the Participation granted under Section 2.01(a) (in addition to any other amounts payable by the Company pursuant thereto) on the earliest occasion when sufficient Collections are available for that purpose;

 

(x)             all references to the Trustee or Investor Certificateholders having any interest in any Participation Amounts shall be taken to be references to the rights of the Trustee, as against the Company, to receive payments from the Company (for the benefit of the Investor Certificateholders) pursuant to the Participation granted under Section 2.01(a) , such rights being secured by the security interest granted by the Company hereunder in relation to the Participation Amounts;

 

(xi)            all references to Receivables “contributed from Huntsman International to the Company” or Receivables “contributed from the Contributor to the Company” shall be deemed to include Receivables subrogated, sold or otherwise transferred directly from an Originator or other entity to the Company;

 

(xii)           all provisions applicable to Receivables contributed to the Company from Huntsman International shall be deemed to be equally applicable to Receivables subrogated, sold or otherwise transferred from an Originator or other entity to the Company; and

 

(xiii)          it is acknowledged that there shall be no loan by any Investor Certificateholders of any Series to the Trustee or the Company and that any indebtedness owed by the Company to the Trustee shall be by way of Participation in relation to the Receivables and is not in respect of any borrowing by the Company or by the Trustee on behalf of the Company. Accordingly, any references in this Agreement or any Supplement to amounts being distributable by the Trustee to the Investor Certificateholders in respect of amounts described as “interest” or “principal” (and all like expressions) shall be construed as

 

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references to amounts which the Investor Certificateholders are entitled to receive in their capacity as holders of fractional undivided interests in the relevant Participation, being amounts which are calculated primarily by reference to costs and outgoings which are (or are expected to be) incurred by Investor Certificateholders in funding their acquisition and holding of said interests.

 

In connection with its grant of the Participation, the Company further agrees, at its own expense, on each Receivables Purchase Date, (A) to direct (or cause the Master Servicer to direct) each Originator to identify on its extraction records relating to Receivables from its master database of receivables, that the Receivables have been conveyed to Huntsman International pursuant to one of the Origination Agreements, (B) to direct the Master Servicer to maintain a record-keeping system that will clearly and unambiguously indicate, in the Master Servicer’s files maintained on behalf of the Company that such Receivables have been contributed by the Huntsman International to the Company and a Participation and a security interest have been granted by the Company to the Trust for the benefit of the Holders and (C) to deliver or transmit or cause the Master Servicer on behalf of the Company to deliver or transmit to the Trustee a Daily Report containing at least the information specified in Exhibit B as to all Receivables, as of each related Receivables Contribution Date, in each case in accordance with the Transaction Documents.

 

SECTION 2.02            Acceptance by Trustee.

 

(a)            The Trustee hereby acknowledges its acceptance on behalf of the Trust of the Participation and security interest granted to the Trust pursuant to Section 2.01(b) and declares that it shall maintain the Participation and such security interest, upon the trust herein set forth, for the benefit of all Holders. The Trustee shall maintain an electronic copy of each Daily Report and Monthly Settlement Report, as delivered pursuant to Section 2.01 and Section 3.01(j) at the Corporate Trust Office.

 

(b)            The Trustee shall have no power to create, assume or incur indebtedness or other liabilities in the name of the Trust other than as contemplated in this Agreement.

 

SECTION 2.03            Representations and Warranties of the Company.

 

The Company hereby represents and warrants to the Trustee and the Trust, for the benefit of the Holders, as of the Effective Date and as of the Issuance Date of each Series, that:

 

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

 

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(b)            Authorization . The execution, delivery and performance by it of each of the Transaction Documents to which it is a party and the performance of the Transactions (i) have been duly authorized by all requisite company and, if applicable and required, Shareholder action and (ii) will not (A) violate (1) any Requirement of Law applicable to it or (2) any provision of any Transaction Document or any other material Contractual Obligation to which it is a party or by which it or any of its property is or may be bound, (B) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, or give rise to any right to accelerate or to require the prepayment, repurchase or redemption of any obligation under any Transaction Document or any other material Contractual Obligation to which it is a party or by which it or any of its property is or may be bound, or (C) result in the creation or imposition of any Lien upon or with respect to any property or assets now owned or hereafter acquired by it (other than Permitted Liens).

 

(c)            Enforceability . This Agreement has been duly executed and delivered by it and constitutes, and each other Transaction Document to which it is a party when executed and delivered by it will constitute, a legal, valid and binding obligation of it enforceable against it in accordance with its respective terms, subject (a) to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors rights generally, from time to time in effect and (b) to general principles of equity (whether enforcement is sought by a proceeding in equity or at law).

 

(d)            Governmental Approvals . No action, consent or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the Transaction Documents, except for (i) the filing of UCC financing statements (or similar filings) in any applicable jurisdictions necessary to perfect the Trust’s security interest in the Receivables and (ii) such as have been made or obtained and are in full force and effect; provided, that it makes no representation or warranty as to whether any action, consent, or approval of, registration or filing with or any other action by any Governmental Authority is or will be required in connection with the distribution of the Certificates and Interests.

 

(e)            Litigation: Compliance with Laws .

 

(i)             there are no actions, suits or proceedings at law or in equity or by or before any Governmental Authority now pending or, to its knowledge, threatened against it or affecting it or any of its properties, revenues or rights (i) in connection with the execution and delivery of the Transaction Documents and the consummation of the Transactions contemplated thereunder, (ii) which could reasonably be expected to materially affect adversely the income tax or franchise tax attributes of the Trust under the United States federal or any state or franchise tax systems or (iii) for which there exists a reasonable likelihood of an outcome that would result in a Material Adverse Effect with respect to it;

 

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(ii)            it is not in default with respect to any judgment, writ, injunction, decree or order of any Governmental Authority, which would reasonably be expected to have a Material Adverse Effect with respect to it; and

 

(iii)           it has complied with all applicable provisions of its organizational or governing documents and any other Requirements of Law with respect to it, its business and properties and the Participation Assets.

 

(f)             Agreements .

 

(i)             it has no Contractual Obligations other than (A) the Transaction Documents to which it is a party and the other contractual arrangements permitted thereby or contemplated thereunder and (B) any other agreements or instruments that it is not prohibited from entering into by Section 2.08(f) and that, in the aggregate, neither contain payment obligations or other liabilities on the part of it in excess of $100,000 nor would upon default result in a Material Adverse Effect. Other than the restrictions created by the Transaction Documents, it is not subject to any limited liability company restriction that could reasonably be expected to have a Material Adverse Effect with respect to it; and

 

(ii)            it is not in default in any material respect under any provision of any Transaction Document or any other material Contractual Obligation to which it is a party or by which it or any of its properties or assets are or may be bound.

 

(g)            Federal Reserve Regulations .

 

(i)             it is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose of buying or carrying Margin Stock; and

 

(ii)            no part of the proceeds from the issuance of any Investor Certificates will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose that entails a violation of, or that is inconsistent with, the provisions of the regulations of the Board, including Regulation U or Regulation X.

 

(h)            Investment Company Act . It is not an “investment company” as defined in, or subject to regulation under, the 1940 Act nor is it “controlled” by a company defined as an “investment company” or subject to regulation under the 1940 Act.

 

(i)             No Early Amortization Event . No Early Amortization Event or Potential Early Amortization Event has occurred and is continuing.

 

(j)             Tax Classification . Neither the Company nor any member of the Company has elected or taken any action that would cause the Company to be classified as a partnership or corporation for U.S. tax purposes.

 

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(k)            Tax Returns . It has filed or caused to be filed all material tax returns and has paid or caused to be paid or made adequate provision for all taxes due and payable by it and all assessments received by it except to the extent that any failure to file or nonpayment (i) is being contested in good faith or (ii) could not reasonably be expected to result in a Material Adverse Effect with respect to it.

 

(l)             Location of Records . The offices at which the Company keeps its records concerning the Receivables either (x) are located at the address set forth on Schedule 2 hereto and at the addresses set forth for the relevant Originator on Schedule 2 of the related Origination Agreement or (y) the Company has notified the Trustee of the location thereof in accordance with the provisions of S ection 2.08(i) .

 

(m)           Solvency . No Insolvency Event with respect to it has occurred and the granting of security interests in the Participation Assets by it to the Trust has not been made in contemplation of the occurrence thereof. Both prior to and after giving effect to the transactions occurring on each Issuance Date, (i) the fair value of its assets at a fair valuation will exceed its debts and liabilities, subordinated, contingent or otherwise; (ii) the present fair salable value of its property will be greater than the amount that will be required to pay its probable liability on its debts and other liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; (iii) it will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (iv) it will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted. For all purposes of clauses (i) through (iv) above, the amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. It does not intend to, nor does it believe that it will, incur debts beyond its ability to pay such debts as they mature, taking into account the timing of and amounts of cash to be received by it and the timing of and amounts of cash to be payable in respect of its Indebtedness.

 

(n)            Subsidiaries . It has no Subsidiaries and all of its Shares are owned by Huntsman International.

 

(o)            Names . Its legal name is as set forth in this Agreement. It has no trade names, fictitious names, assumed names or “doing business as” names.

 

(p)            Liabilities . Other than (i) the liabilities, commitments or obligations (whether absolute, accrued, contingent or otherwise) arising under or in respect of the Transaction Documents, (ii) immaterial amounts due and payable in the ordinary course of business of a special-purpose company, it does not have any liabilities, commitments or obligations (whether absolute, accrued, contingent or otherwise), whether due or to become due, and (iii) all amounts described in clauses (i) and (ii) shall be payable solely from funds available to it which are not otherwise required to be applied to the payment of any amounts owed by it pursuant to any Pooling and Servicing Agreement.

 

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(q)            Collection Procedures. It has not acted in contravention of any Policies with respect to the Receivables.

 

(r)             Collection Accounts and the Master Collection Accounts . Except to the extent otherwise permitted under the terms of this Agreement, the Collection Accounts and the Master Collection Accounts are free and clear of any Lien (except for Permitted Liens).

 

(s)            No Material Adverse Effect . Since the Effective Date, no event has occurred which has had a Material Adverse Effect with respect to it.

 

(t)             Bulk Sales . The execution, delivery and performance of this Agreement do not require compliance with any “bulk sales” law by the Company in the United States.

 

(u)            Clifford Chance UK Tax Opinion . The statements of fact assumed in assumptions 7, 10, 14, 16, 25 and 26 of the UK Tax Opinion of Clifford Chance Limited Liability Partnership dated April 18, 2006 are correct so far as they relate to each of the Company, the Contributor and the UK Originators and their Affiliates. For the avoidance of doubt, no representation is made in this sub-paragraph (u) in respect of matters of law or legal judgment.

 

(v)            United Kingdom Finance Act 1988 . There are no circumstances in existence which could cause the Company or the Contributor to have any liabilities under Section 132 of the United Kingdom Finance Act 1988.

 

The representations and warranties as of the date made set forth in this Section 2.03 shall survive the Participation and the security interest granted in the Participation Assets to the Trust. Upon discovery by a Responsible Officer of the Company or the Master Servicer or by a Responsible Officer of the Trustee of a breach of any of the foregoing representations and warranties with respect to any Outstanding Series as of the Issuance Date of such Series, the party discovering such breach shall give prompt written notice to the other parties and to each Funding Agent with respect to any Outstanding Series. The Trustee’s obligations in respect of any breach are limited as provided in Section 8.02(e) .

 

SECTION 2.04            Representations and Warranties of the Company Relating to the Receivables.

 

The Company hereby represents and warrants to the Trustee and the Trust, for the benefit of the Holders, with respect to each Receivable in which a Participation and a security interest is granted to the Trust as of the related Receivables Contribution Date, unless, in either case, otherwise stated in the applicable Supplement or unless such representation or warranty expressly relates only to a prior date, that:

 

(a)            Receivables Description . As of the related Receivables Contribution Date, the Daily Report delivered or transmitted pursuant to Section 2.01(b) sets forth in all material respects a complete listing of all Receivables (and any items of Related Property), in which a Participation and a security interest is granted to the Trust on the related Receivables Contribution Date and the information contained in the Daily Report with respect to each such Receivable is true and correct (except for any errors or omissions that do not

 

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result in material impairment of the interests, rights or remedies of the Trustee or the Investor Certificateholders with respect to any Receivable) as of the related Receivables Contribution Date.

 

(b)            No Liens . Each Eligible Receivable existing on the Effective Date or, in the case of Eligible Receivables in which a Participation and security interest is granted to the Trust after the Effective Date, on the related Receivables Contribution Date was, on such date, free and clear of any Lien, except for Permitted Liens.

 

(c)            Eligible Receivable . Each Receivable in which a Participation and security interest is granted to the Trust that is included in the calculation of the Aggregate Receivables Amount is an Eligible Receivable and, in the case of Receivables in which a security interest is granted to the Trust after the Effective Date, on the related Receivables Contribution Date, each such Receivable that is included in the calculation of the Aggregate Receivables Amount on such related Receivables Contribution Date is an Eligible Receivable.

 

(d)            Filings . All filings and other acts required to permit the Company (or its permitted assignees or pledgees) to provide any notification subsequent to the applicable Receivables Contribution Date (without materially impairing the Trust’s security interest in the Participation Assets and without incurring material expenses in connection with such notification) necessary under the applicable UCC or under other applicable laws of jurisdictions outside the United States (to the extent applicable) shall have been made or performed in order to grant the Trust on the applicable Receivables Contribution Date a continuing first priority perfected security interest in respect of all Receivables and Related Property.

 

(e)            Policies . Since the Effective Date, to its knowledge, there have been no material changes in the Policies, other than as permitted hereunder.

 

The representations and warranties as of the date made set forth in this Section 2.04 shall survive the grant of the Participation and the security interest in the Participation Assets to the Trust. Upon discovery by a Responsible Officer of the Company or the Master Servicer or a Responsible Officer of the Trustee of a breach of any of the representations and warranties (or of any Receivable encompassed by the representation and warranty in Section 2.04(c) not being an Eligible Receivable as of the relevant Receivables Contribution Date), the party discovering such breach shall give prompt written notice to the other parties and to each Funding Agent with respect to all Outstanding Series. The Trustee’s obligations in respect of any breach are limited as provided in Section 8.02(e) .

 

SECTION 2.05            Adjustment Payment for Ineligible Receivables.

 

(a)            Adjustment Payments . If (i) any representation or warranty under Sections 2.04(a) or (b) is not true and correct as of the date specified therein with respect to any Receivable in which a security interest was granted in favor of the Trust, or any Receivable encompassed by the representation and warranty in Sections 2.04(c) or 2.04(d) is determined not to have been an Eligible Receivable as of the relevant Receivables Contribution Date, (ii) there

 

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is a breach of any covenant under Section 2.08(b) with respect to any Receivable or (iii) the Trust’s interest in any Receivable is not a continuing first priority perfected security interest at any time as a result of any action taken by, or the failure to take action by, the Company (any Receivable as to which the conditions specified in any of clause (i) , (ii) or (iii) of this Section 2.05(a) exists is referred to herein as an “ Ineligible Receivable ”) then, after the earlier (the date on which such earlier event occurs, the “ Ineligibility Determination Date ”) to occur of the discovery by the Master Servicer of any such event that continues unremedied or receipt by the Company of written notice (which may be in the Daily Report) given by the Master Servicer of any such event that continues unremedied, the Company shall pay to the Trustee the Adjustment Payment in the amount and manner set forth in Section 2.05(b) hereof.

 

(b)            Adjustment Payment Amount . Subject to the last sentence of this Section 2.05(b) , the Company may (i) reduce the amount of its Exchangeable Company Interest by an amount equal to the difference between (x) minus (y) below and, to the extent such reduction is insufficient to satisfy its obligations hereunder the Company shall make an Adjustment Payment with respect to each Ineligible Receivable, (ii) make an Adjustment Payment in an amount equal to the difference between (x) minus (y) below or (iii) fully reduce its Exchangeable Company Interest to cover its obligations hereunder with respect to such Ineligible Receivable, each as required pursuant to Section 2.05(a) by depositing in the applicable currency Company Concentration Account on the Business Day following the related Ineligibility Determination Date an amount equal to the lesser of (x) the amount by which the Aggregate Target Receivables Amount exceeds the Aggregate Receivables Amount (after giving effect to the reduction thereof by the Principal Amount of such Ineligible Receivable) and (y) the aggregate outstanding Principal Amount of all such Ineligible Receivables less any Collections in respect of such Ineligible Receivable thereto for applied by or on behalf of the Master Servicer.

 

Upon such reduction of its Exchangeable Company Interest or upon transfer or deposit of the Adjustment Payment amount specified in this Section 2.05(b) , as the case may be, the Company shall be entitled to retain without recourse, representation or warranty, all subsequent Collections (or amounts in respect thereof) received by it in respect of each such Ineligible Receivable and such Collections shall not form part of the Participation Assets. The obligation of the Company to reduce its Exchangeable Company interest or to pay such Adjustment Payment amount specified in this Section 2.05(b) , as the case may be, with respect to any Ineligible Receivables in which a security interest was granted by it, respectively, shall constitute the sole remedy respecting the event giving rise to such obligation available to Investor Certificateholders (or the Trustee on behalf of Investor Certificateholders) unless such obligation is not satisfied in full in accordance with the terms of this Agreement.

 

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SECTION 2.06            Purchase of Investor Certificateholders’ Interest in the Participation.

 

(a)            In the event of any breach of any of the representations and warranties set forth in Section 2.03 as of the date made which breach has a Material Adverse Effect, the Trustee, at the written direction of the Funding Agent(s) for Holders evidencing more than 50% of the Aggregate Invested Amount shall notify the Company (with a copy to the Master Servicer) to pay to the Trust an amount calculated in accordance with Section 2.06(b) , with reference to the Investor Certificateholders’ Interest for such affected Outstanding Series and pursuant to such notice, the Company shall be obligated to make such payment in respect of such affected Investor Certificateholders’ Interest on the Business Day occurring not later than five (5) Business Days after receipt of such notice on the terms and conditions set forth in Section 2.06(b) below; provided , however , that no such payment shall be required to be made if, by such Business Day, the Master Servicer shall provide the Trustee with a Responsible Officer’s certificate to the effect that the representations and warranties contained in Section 2.03 shall then be true and correct in all material respects and any Material Adverse Effect caused thereby shall have been cured.

 

(b)            If required by the provisions of Section 2.06(a) , the Company shall deposit into the appropriate Series Concentration Account on the Business Day preceding the Distribution Date referred to in Section 2.06(a) above, an amount in U.S. Dollars or Euro (as applicable) equal to the purchase price (as described in the next succeeding sentence) for the affected Investor Certificateholders’ Interest for such affected Outstanding Series on such day. The purchase price for any such purchase will be equal to (i) the Adjusted Invested Amount of such Outstanding Series on the date on which the purchase is made plus (ii) an amount equal to all interest accrued but unpaid on such Series up to (but excluding) the Distribution Date on which the distribution of such deposit is scheduled to be made pursuant to Section 9.02 plus (iii) any other amount required to be paid in connection therewith pursuant to any Supplement. Notwithstanding anything to the contrary in this Agreement, the entire amount of the purchase price deposited in the appropriate Series Concentration Account (together with amounts on deposit in the applicable Series Principal Concentration Subaccount) shall be distributed to the related Investor Certificateholders on such Distribution Date pursuant to Section 9.02 . If the Trustee gives notice directing the Company to made a payment as provided above, the obligation of the Company to make such payment pursuant to this Section 2.06 shall constitute the sole remedy respecting an event of the type specified in the first sentence of this Section 2.06 available to the applicable Investor Certificateholders (or the Trustee on behalf of such Investor Certificateholders) unless such payment obligation is not satisfied in full in accordance with the terms of this Agreement.

 

SECTION 2.07            Affirmative Covenants of the Company.

 

The Company hereby covenants that, until the Trust Termination Date occurs, it shall (or with respect to clauses (a) , (d)(ii) , (l) and (n) , shall direct the Master Servicer on its behalf to):

 

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(a)            Annual Opinion . Deliver (or request the Master Servicer to deliver) to the Trustee and each Funding Agent an Opinion of Counsel substantially in the form of Exhibit A (with such modifications as are reasonably acceptable to the Trustee and any Funding Agent with respect to any Outstanding Series and the Trustee), on the anniversary of the date hereof.

 

(b)            Payment of Obligations; Compliance with Obligations . Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its obligations of whatever nature (including all taxes, assessments, levies and other governmental charges imposed on it), except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto have been provided on the books of the Company. The Company shall defend the security interest of the Trustee and the Holders in, to and under the Receivables and the other Participation Assets, whether now existing or hereafter created, against all claims of third parties. The Company will duly fulfill all obligations on its part to be fulfilled under or in connection with the Participation and will do nothing to impair the rights of the Holders in the Participation.

 

(c)            Books and Records . Keep proper books of records and account in which entries in conformity in all material respects with GAAP shall be made of all dealings and transactions in relation to its business and activities.

 

(d)            Compliance with Law and Policies.

 

(i)             comply with all Requirements of Law, the provisions of the Transaction Documents and all other material Contractual Obligations applicable to the Company except where the failure to so comply would not reasonably be expected to have a Material Adverse Effect; and

 

(ii)            perform its obligations in accordance with the Policies, as amended from time to time in accordance with the Transaction Documents, in regard to the Receivables and the Receivables Assets.

 

(e)            Purchase of Receivables . Purchase Receivables solely in accordance with the Origination Agreement.

 

(f)             Delivery of Collections . In the event that the Company receives Collections directly from Obligors and in pursuance of the security interests granted by the Company hereunder, deliver and deposit, endorse, if applicable, to the Trustee for deposit into the applicable Collection Account or deposit an amount equal to such Collections directly into the applicable Company Concentration Account within one (1) Business Day after its receipt thereof.

 

(g)            Notices . Promptly give written notice to the Trustee and each Funding Agent for any Outstanding Series of the occurrence of any Liens on Receivables (other than Permitted Liens), Early Amortization Event or Potential Early Amortization Event, the statement of a Responsible Officer of the Company setting forth the details of such Early Amortization Event or Potential Early

 

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Amortization Event and the action taken, or which the Company proposes to take, with respect thereto.

 

(h)            Collection Accounts, Master Collection Accounts and Company Concentration Accounts . Take all reasonable actions necessary to ensure that the Collection Accounts, the Master Collection Accounts and the Company Concentration Accounts shall be free and clear of, and defend the Collection Accounts, the Master Collection Accounts and the Company Concentration Accounts against, Liens (other than Permitted Liens), any writ, order, stay, judgment, warrant of attachment or execution or similar process.

 

(i)             Separate Company Existence.

 

(i)             except as set forth in the Transaction Documents, maintain its own deposit account or accounts, separate from those of any Affiliate, with commercial banking institutions and ensure that the funds of the Company will not be diverted to any other Person or for other than uses of the Company, not commingle such funds with the funds of any Originator or any Subsidiary or Affiliate of any Originator; provided , however , that the foregoing restriction shall not preclude Collections from being commingled with any Originator’s funds or with an Originator’s funds in the Collection Accounts, the Master Collection Accounts and the Company Concentration Accounts for a period of time not to exceed one (1) Local Business Day or preclude the Company from making, in accordance with the Transaction Documents, a distribution to the Contributor in respect of its membership interests in accordance with the provisions of Section 2.08(m) ;

 

(ii)            to the extent that it shares the same officers or other employees as any of its Shareholders or Affiliates, the salaries of and the expenses related to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with all such common officers and employees;

 

(iii)           to the extent that it jointly contracts with any of its Shareholders or Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that the Company contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods or services are provided, and each such entity shall bear its fair share of such costs. All material transactions between the Company and any of its Affiliates, whether currently existing or hereafter entered into, shall be only on an arm’s length basis;

 

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(iv)           maintain office space separate from the office space of any Originator and its Affiliates (but which may be located at the same address as any Originator or one of any Originator’s Affiliates). To the extent that the Company and any of its Shareholders or Affiliates have offices in the same location, there shall be a fair and appropriate allocation of overhead costs among them, and each such entity shall bear its fair share of such expenses;

 

(v)            issue separate financial statements prepared not less frequently than annually and prepared in accordance with GAAP;

 

(vi)           conduct its affairs strictly in accordance with its organizational documents and observe all necessary, appropriate and customary company formalities, including, holding regular and special Shareholders’ and directors, meetings appropriate to authorize all company action, keeping separate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;

 

(vii)          except to the extent expressly provided for any of the Transaction Documents, not assume or guarantee any of the liabilities of an Originator, the Master Servicer or any Affiliate thereof; and

 

(viii)         take, or refrain from taking, as the case may be, all other actions that are necessary to be taken or not to be taken in order to (x) ensure that the assumptions and factual recitations set forth in the Specified Bankruptcy Opinion Provisions remain true and correct and (y) comply with those procedures described in such provisions.

 

(j)             Preservation of Company Existence . (i) Preserve and maintain its company existence, rights, franchises and privileges in the jurisdiction of its formation and (ii) qualify and remain qualified in good standing as a foreign corporation in each jurisdiction where such qualification is required other than any jurisdiction where the failure so to qualify would not have a Material Adverse Effect.

 

(k)            Assessments . Promptly pay and discharge all taxes, assessments, levies and other governmental charges imposed on it except such taxes, assessments, levies and other governmental charges that (i) are being contested in good faith by appropriate proceedings and for which the Company shall have set aside on its books adequate reserves or (ii) the failure to pay, satisfy or discharge would not reasonably be expected to result in a Material Adverse Effect.

 

(l)             Obligations . Defend the security of the Trust in, to and under the Receivables and the other Participation Assets, whether now existing or hereafter created, against all claims of third parties claiming through the Company. The Company will duly fulfill in accordance with the Servicing Agreement all obligations on its part to be fulfilled under or in connection with each

 

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Receivable and will do nothing to materially impair the rights of the Company in such Receivable.

 

(m)           Enforcement of Origination Agreement . The Company shall use its best efforts to enforce all rights held by it under any Origination Agreement to which it is a party.

 

(n)            Maintenance of Property . Keep all property and assets useful and necessary to permit the monitoring and collection of Receivables.

 

(o)            Bankruptcy . Cooperate with the Funding Agents and Trustee in making any amendments to the Transaction Documents and take, or refrain from taking, as the case may be, all other actions deemed reasonably necessary by the Funding Agents and/or Trustee in order to comply with the structured finance statutory exemption set forth in legislative amendments to the U.S. Bankruptcy Code at or any time after such amendments are enacted into law; provided , however , that it shall not be required to make any amendment or to take, or omit from taking, as the case may be, any action which it reasonably believes would have the effect of materially changing the economic substance of the transaction contemplated by the Transaction Documents on the Effective Date.

 

(p)            Enforcement of Contribution Agreement . The Company shall enforce its rights under the Contribution Agreement and shall cause the Contributor to enforce the Contributor’s rights under the Origination Agreements, in each case, including the right to receive Adjustment Payments and the right to indemnification.

 

SECTION 2.08            Negative Covenants of the Company.

 

The Company hereby covenants that, until the Trust Termination Date occurs, it shall not directly or indirectly:

 

(a)            Limitation on Liabilities . Create, incur, assume or suffer to exist any Indebtedness, except (i) Indebtedness evidenced by the Subordinated Loan, (ii) liabilities (including accrued and contingent liabilities) or obligations arising under or in respect of the Transaction Documents, including liabilities and obligations representing fees, expenses and indemnities payable pursuant to and in accordance with the Transaction Documents and (iii) immaterial amounts due and payable in the ordinary course of business of a special purpose company, provided that any Indebtedness permitted hereunder and described in clauses (i) and (iii) shall be payable by the Company solely from funds available to the Company which are not otherwise required to be applied to the payment of any amounts by the Company pursuant to any Pooling and Servicing Agreement.

 

(b)            Limitation on Transfers of Receivables, etc . Except as otherwise permitted by the Transaction Documents, at any time sell, transfer, grant a participation and security interest in or otherwise dispose of any of the Receivables, Related Property, Participation Assets or the proceeds thereof.

 

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(c)            Limitation on Guarantee Obligations . Become or remain liable, directly or contingently, in connection with any Indebtedness or other liability of any other Person, whether by guarantee, endorsement (other than endorsements of negotiable instruments for deposit or collection in the ordinary course of business), agreement to purchase or repurchase, agreement to supply or advance funds or otherwise other than under or as contemplated by any Transaction Documents.

 

(d)            Limitation on Fundamental Changes . Except to the extent permitted under the Transaction Documents, enter into any merger, consolidation or amalgamation, or liquidate, to the fullest extent permitted by law, wind up or dissolve itself (or suffer any liquidation or dissolution), or make any material change in its present method of conducting business, or convey, sell, lease, assign, transfer, grant a participation, security interest in or otherwise dispose of, all or substantially all of its property, business or assets other than the Participation and the security interests contemplated hereby.

 

(e)            Business . Engage at any time in any business or business activity other than the acquisition of Receivables pursuant to any Origination Agreement to which it is a party, the security interests hereunder, the other transactions contemplated by the Transaction Documents, the incurrence of Indebtedness under the Subordinated Company Interests, any Subordinated Loan as contemplated in the Transaction Documents, and any activity incidental to the foregoing and necessary or convenient to accomplish the foregoing, or otherwise contemplated by any of the Transaction Documents or enter into or be a party to any agreement or instrument other than in connection with the foregoing.

 

(f)             Agreements . Become a party to any indenture, mortgage, instrument, contract, agreement, lease or other undertaking, except the Transaction Documents, the Pledge Agreement, the Subordinated Interests, any Subordinated Loan as contemplated in the Transaction Documents, leases of office space, equipment or other facilities for use by the Company in its ordinary course of business, employment agreements, service agreements, agreements relating to shared employees and the other Transaction Documents and agreements necessary to perform its obligations under the Transaction Documents, (ii) issue any power of attorney (except to the Trustee or the Master Servicer or except for the purpose of permitting any Person to perform any ministerial functions on behalf of the Company that are not prohibited by or inconsistent with the terms of the Transaction Documents), or (iii) other than pursuant to the terms of any Origination Agreement to which it is a party, amend, supplement, modify or waive any of the provisions of the Origination Agreement or request, consent or agree to or suffer to exist or permit any such amendment, supplement, modification or waiver or exercise any consent rights granted to it thereunder unless such amendment, supplement, modification or waiver or such exercise of consent rights would not have a Material Adverse Effect with respect to the Company or any Outstanding Series and each Funding Agent shall have consented to any such amendments, supplements, modifications or waivers.

 

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(g)            Policies . Permit any change or modification in any material respect to the Policies, except (i) if such changes or modifications are necessary under any Requirement of Law or (ii) the Funding Agents shall have consented with respect thereto.

 

(h)            Instruments . Unless delivered to the Trustee pursuant to Section 2.01(b) , the Company shall not take any action to cause any U.S. Receivable not evidenced by an “instrument” (as defined in the applicable UCC or other similar applicable statute or legislation) upon origination to become evidenced by an instrument, except in connection with its enforcement or collection of a Defaulted Receivable.

 

(i)             Offices . Move the location of where the Company keeps its records to a new location without providing thirty (30) days’ prior written notice to the Trustee and each Funding Agent.

 

(j)             Change in Name . Change the Company’s name, corporate structure, jurisdiction of organization, place of business or chief executive office in any manner that would or is likely to (i) make any financing statement or continuation statement (or other similar instrument) relating to this Agreement seriously misleading within the meaning of Section 9-506(b) of the applicable UCC (or analogous provision of any other similar applicable statute or legislation) or (ii) impair the perfection of the Trust’s interest in any Receivable under any other similar law, without 30 days’ prior written notice to the Trustee and each Funding Agent.

 

(k)            Charter . Amend or make any change or modification to its constitutive documents without obtaining the consent of each Funding Agent (provided that, notwithstanding anything to the contrary in this Section 2.08(k) , the Company may make amendments, changes or modifications pursuant to changes in law of the jurisdiction of its formation or amendments to change the Company’s name (subject to compliance with clause (j) above)).

 

(l)             Tax Classification . Elect or take any action that would cause it to be classified as a partnership or corporation for U.S. tax purposes or permit any member of the Company to so elect or take any such action.

 

(m)           Limitation on Restricted Payments . Declare or pay any dividend on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any shares of any class of capital stock of the Company, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Company (such declarations, payments, setting apart, purchases, redemptions, defeasance, retirements, acquisitions and distributions being herein called “ Restricted Payments ”), unless (i) at the date such Restricted Payment is made, the Company shall have made all payments in respect of its obligations pursuant to the Transaction Documents and the Pledge Agreement, and (ii) the Restricted Payment Test for each outstanding Series is satisfied on such date; provided , however , that such limitation on Restricted Payments shall not preclude the Company from making, in

 

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accordance with the Transaction Documents, a distribution or paying as a dividend to its Shareholder in respect of the Shares in the Company; provided that no Early Amortization Event or Potential Early Amortization Event has occurred and is continuing.

 

(n)            Accounting for Purchases . Except in accordance with any Requirement of Law, prepare any financial statements which shall account for the transactions contemplated under any Origination Agreement or the transactions contemplated hereunder in any manner other than, as a contribution of the Receivables from the Contributor to the Company and as a grant of a secured Participation in the Receivables from time to time by the Company to the Trust, respectively, or in any other respect account for or treat the transactions contemplated under any Origination Agreement or the transactions contemplated hereunder (including for financial accounting purposes, except as required by law) in any manner other than as a contribution of the Receivables from the Contributor to the Company and as a grant of a secured Participation in the Receivables from the Company to the Trust, respectively; provided , however , that this subsection shall not apply for any tax or tax accounting purposes.

 

(o)            Extension or Amendment of Receivables . Extend, make any Dilution Adjustment to, rescind, cancel, amend or otherwise modify, or attempt or purport to extend, amend or otherwise modify, the terms of any Receivables other than as permitted under Section 4.05(a) of the Servicing Agreement.

 

(p)            Amendment of Transaction Documents or Other Material Documents . Other than as set forth in the Transaction Documents, amend any Transaction Document or other material document related to any transactions contemplated hereby or thereby.

 

(q)            Origination Agreements . Take any action under any Origination Agreement to which it is a party that could reasonably be expected to have a Material Adverse Effect.

 

(r)             Limitation on Investments and Loans . Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in, any Person, except for any Exchangeable Company Interest, any Subordinated Company Interests, any Subordinated Loan, the Receivables and the other Participation Assets or as otherwise contemplated under the Transaction Documents.

 

(s)            Limitation on Mergers, Acquisitions and Asset Sales . Enter into any agreement to merge with or acquire another company or sell all or substantially all of the Company’s assets, other than as permitted in Section 6.03 hereof.

 

(t)             Perfection of Security Interest . Taking all actions reasonably requested by the Trustee (including but not limited to all filings and other acts necessary or advisable under the applicable UCC or other applicable laws or similar statute of each relevant jurisdiction) in order to continue the Trust’s first priority

 

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perfected security interest in all Receivables now owned or acquired by the Company.

 

SECTION 2.09       Addition of Approved Currency, Approved Originator and Approved Obligor Country;  Approved Acquired Line of Business Receivables.

 

At the written request of the Master Servicer delivered to the Trustee and each Funding Agent, (1) the addition of a currency as an Approved Currency, (2) the addition of an originator as an Approved Originator, (3) the addition of a jurisdiction as an Approved Obligor Country or as an Approved Contract Jurisdiction or (4) the inclusion of Acquired Line of Business Receivables as Eligible Receivables, in each case after the Series 2000-1 Issuance Date, shall be permitted upon satisfaction of the relevant conditions set forth in this Section 2.09 , the relevant Origination Agreement and any Supplement.

 

(a)            Approved Currency . Each Funding Agent shall have consented to the addition of any currency as Approved Currency.

 

(b)            Approved Originator .

 

(i)             such proposed Approved Originator is an Affiliate of Huntsman International;

 

(ii)            the Master Servicer, the Company and each Funding Agent shall have received a copy of the Policies of such Originator, which Policies shall be in form and substance satisfactory to the Master Servicer, the Servicer Guarantor, the Company and each Funding Agent;

 

(iii)           the governing law of the Contracts relating to the Receivables originated by such proposed Approved Originator is the law of an Approved Contract Jurisdiction;

 

(iv)           the Company and each Funding Agent shall have received confirmation that there is no pending or threatened action or proceeding affecting such proposed Approved Originator before any Governmental Authority that could reasonably be expected to have a Material Adverse Effect with respect to it (other than such action or proceeding as disclosed in public filings);

 

(v)            the Trustee shall have received an Opinion of Counsel in form and substance satisfactory to it and any Funding Agent from a nationally recognized law firm qualified to practice in the jurisdiction in which such Originator is located to the effect that the sale of Receivables by such Originator to the Contributor or the Company (or such other entity as shall have been agreed) constitute true sales of such Receivables to the Contributor or the Company or such entity;

 

(vi)           the Trustee shall have received an Opinion of Counsel from a nationally recognized law firm in form and substance satisfactory to it and any Funding Agent with respect to the Originators from one or more nationally recognized law firms authorized to practice law in the

 

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jurisdiction in which such proposed Approved Originator is located, the jurisdictions governing the contracts originated by such Originator and in New York;

 

(vii)          the Master Servicer and the Servicer Guarantor shall have agreed in writing to service the Receivables originated and proposed to be sold by such Originator in accordance with the terms and conditions of the Servicing Agreement and the Servicer Guarantor shall have agreed to guarantee the Master Servicer’s obligations in connection therewith;

 

(viii)         the Liquidation Servicer shall have notified the Company and the Funding Agents that a Standby Liquidation System is in place for such proposed Approved Originator;

 

(ix)            the Company, the Trustee and each Funding Agent shall have received a certificate prepared by a Responsible Officer of the Master Servicer certifying that after giving effect to the addition of such proposed Approved Originator, the Aggregate Target Receivables Amount shall be equal to or less than the Aggregate Receivables Amount on the date such proposed Approved Originator is added pursuant to the applicable Receivables Purchase Agreement;

 

(x)             such Originator shall have executed an Additional Originator Joinder Agreement in the form of Schedule 3 or corresponding schedule attached to the applicable Receivables Purchase Agreement, shall have otherwise acceded to an existing Receivables Purchase Agreement or shall have entered into a Receivables Purchase Agreement substantially similar to the existing Receivables Purchase Agreement with such modifications as necessary or appropriate to address jurisdiction-specific issues;

 

(xi)            if applicable, such Originator shall have executed, filed and recorded, at its own expense, appropriate UCC financing statements with respect to the Receivables (and Related Assets) originated and proposed to be sold by it in such manner and such jurisdictions as are necessary to perfect the Company’s ownership interest in such Receivables;

 

(xii)           the Company and each Funding Agent shall be satisfied that there are no Liens on the Receivables to be sold by such Originator, except Permitted Liens;

 

(xiii)          the Collection Accounts with respect to the Receivables to be sold or contributed by such proposed Approved Originator shall have been established in the name of the Company and the Company shall have caused the Trustee to have a first priority perfected security interest in such accounts or shall have been established in the name of the Trustee (whereby the Trustee may grant to the Company a revocable authorization to operate such accounts), or, if the Trustee shall not have such first priority perfected security interest or ownership interest in such accounts, the Company shall have established, or shall have caused Huntsman International to establish, appropriate reserves, as

 

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determined by the Funding Agents, to cover any failure of timely remittance in full of Collections from such accounts or shall have established, or shall have caused Huntsman International to establish, appropriate reserves, as determined by the Funding Agents, to cover a failure of timely remittance in full of Collections from the Collection Accounts to the relevant Master Collection Account in accordance with the Transaction Documents, or shall have made such other arrangements as appropriate or necessary, as determined by the Funding Agents, to address jurisdiction-specific issues; and

 

(xiv)         if the aggregate Principal Amount of Receivables to be added to the pool of Receivables by Additional Originators added as Approved Originators and with respect to Acquired Lines of Business pursuant to the provisions of this Section 2.09 in the immediately preceding twelve (12) calendar months (including the aggregate Principal Amount of all Receivables of such proposed Originator proposed to be sold by such proposed Originator) is greater than ten percent (10%) of the Aggregate Receivables Amount on such date before giving effect to the addition of such proposed Approved Originator, such calculation to be made immediately prior to the proposed addition of such Approved Originator, then (i) each Funding Agent shall have consented to the addition of such Originator and (ii) the historical aging and liquidation schedule information of the Receivables originated by such proposed Approved Originator and other data relating to the Receivables is satisfactory to each Funding Agent.

 

(c)            Approved Obligor Country .

 

The Company, the Trustee and each Funding Agent shall have consented in advance, in writing, to such inclusion of a jurisdiction as an Approved Obligor Country.

 

(d)            Approved Contract Jurisdiction .

 

The Company, the Trustee and each Funding Agent shall have consented in advance, in writing, to inclusion of a jurisdiction as an Approved Contract Jurisdiction.

 

(e)            Approved Acquired Line of Business Receivables .

 

(i)             the Master Servicer, the Company, the Trustee and each Funding Agent shall have received a copy of the Policies with respect to the relevant Acquired Line of Business, which Policies shall be in form and substance satisfactory to the Master Servicer, the Servicer Guarantor, the Company and each Funding Agent;

 

(ii)            the Company, the Trustee and each Funding Agent shall have received confirmation that there is no pending or threatened action or proceeding affecting the Originator or Originators with respect to such Acquired Line of Business before any Governmental Authority that could reasonably be expected to have a Material Adverse Effect with

 

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respect to it (other than such action or proceeding as disclosed in public filings);

 

(iii)           the Liquidation Servicer shall have notified the Company and the Funding Agents that a Standby Liquidation System is in place for such Acquired Line of Business;

 

(iv)           the Company, the Trustee and each Funding Agent shall have received a certificate prepared by a Responsible Officer of the Master Servicer certifying that after giving effect to the addition of such Acquired Line of Business Receivables, the Aggregate Target Receivables Amount shall be equal to or less than the Aggregate Receivables Amount on the date designated by the relevant Originator or Originators pursuant to sub-clause (v) below;

 

(v)            the relevant Originator or Originators with respect to such Acquired Line of Business shall have delivered a notice to the Master Servicer, the Company the Trustee and each Funding Agent, designating the date upon which the Acquired Line of Business Receivables would commence being considered as possible Eligible Receivables;

 

(vi)           if applicable, the relevant Originator or Originators with respect to such Acquired Line of Business shall have executed, filed and recorded, at its own expense, appropriate UCC financing statements with respect to the Receivables (and Related Assets) originated and proposed to be sold by it in such manner and such jurisdictions as are necessary to perfect the Company’s ownership interest in such Receivables;

 

(vii)          the Company and each Funding Agent shall be satisfied that there are no Liens on the Acquired Line of Business Receivables to be sold by such Originator, except as Permitted Liens;

 

(viii)         the Collection Accounts with respect to the Acquired Line of Business Receivables to be sold or contributed by such Originator shall have been established in the name of the Company (or existing Collection Accounts will be used with respect to such Receivables) and the Company shall have caused the Trustee to have a first priority perfected security interest in such accounts or shall have been established in the name of the Trustee (whereby the Trustee may grant to the Company a revocable authorization to operate such accounts), or, if the Trustee shall not have such first priority perfected security interest or ownership interest in such accounts, the Company shall have established, or shall have caused Huntsman International to establish, appropriate reserves, as determined by the Funding Agents, to cover any failure of timely remittance in full of Collections from such accounts or shall have established, or shall have caused Huntsman International to establish, appropriate reserves, as determined by the Funding Agents, to cover a failure of timely remittance in full of Collections from the Collection Accounts to the relevant Master Collection Account in accordance with the Transaction Documents, or

 

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shall have made such other arrangements as appropriate or necessary, as determined by the Funding Agents, to address jurisdiction-specific issues; and

 

(ix)            if the aggregate Principal Amount of Receivables added to the pool of Receivables by Additional Originators added as Approved Originators and with respect to Acquired Lines of Business pursuant to the provisions of this Section 2.09 in the immediately preceding twelve (12) calendar months (including the aggregate Principal Amount of all Receivables of such proposed Acquired Line of Business) is greater than ten percent (10%) of the Aggregate Receivables Amount on such date before giving effect to the addition of such proposed Acquired Lines of Business Receivables, such calculation to be made immediately prior to the proposed addition of such Acquired Lines of Business Receivables, then (i) each Funding Agent shall have consented to the addition of such Acquired Lines of Business Receivables and (ii) the historical aging and liquidation schedule information of the Receivables originated with respect to such Acquired Lines of Business Receivables and other data relating to the Receivables is satisfactory to each Funding Agent.

 

SECTION 2.10            Removal and Withdrawal of Originators and Approved Originators.

 

(a)            Subject to Sections 2.10(c) and 2.10(d) , at the written request of the Company or the Master Servicer, an Approved Originator may be removed or terminated as an Originator and an Approved Originator may withdraw as an Originator; provided that, in each case,

 

(i)             such removal or withdrawal is in accordance with the applicable Origination Agreement,

 

(ii)            each Funding Agent shall have given its prior written consent to such removal, termination or withdrawal, such consent not to be unreasonably withheld,

 

(iii)           no Program Termination Event or Potential Termination Event has occurred and is continuing or would occur as a result thereof, and

 

(iv)           the Company, the Trustee and each Funding Agent shall have received prior written notice from the Master Servicer of such removal, termination or withdrawal of the Originator (accompanied by a certificate of a Responsible Officer of the Master Servicer attaching a pro forma Daily Report and certifying that the Aggregate Target Receivables Amount will be equal to or less than the Aggregate Allocated Receivables Amount after giving effect to such removal, termination or withdrawal);

 

provided that, sub-clause (ii) above shall not apply if the aggregate Principal Amount of Receivables of an Originator that is removed, withdrawn or terminated pursuant to the provisions of this Section 2.10 (excluding any

 

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Permitted Designated Line of Business) in the immediately preceding twelve (12) calendar months is less than ten per cent (10%) of the Aggregate Receivables Amount as of the date immediately prior to the proposed removal, withdrawal or termination of the relevant Approved Originator; provided , further , that sub-clause (ii) shall not apply to (1) an Originator with respect to which an Originator Termination Event has occurred under the applicable Origination Agreement and (2) an Originator identified as an Originator of Receivables with respect to any Permitted Designated Line of Business.

 

(b)            At the written request of the Master Servicer, an Approved Originator may cease selling Receivables originated with respect to a Designated Line of Business by designating such Designated Line of Business as an Excluded Designated Line of Business; provided that, in each case,

 

(i)             such cessation is in accordance with the applicable Origination Agreement,

 

(ii)            each Funding Agent shall have given its prior written consent to such cessation, such consent not to be unreasonably withheld,

 

(iii)           no Program Termination Event or Potential Termination Event has occurred and is continuing or would occur as a result thereof,

 

(iv)           the Trustee and each Funding Agent shall have received prior written notice from the Master Servicer of such cessation (accompanied by a certificate of a Responsible Officer of the Master Servicer attaching a pro forma Daily Report and certifying that the Aggregate Target Receivables Amount will be equal to or less than the Aggregate Allocated Receivables Amount after giving effect to such disposition and/or cessation); and

 

(v)            all Obligors with respect to Receivables originated with respect to the Excluded Designated Line of Business shall be instructed to make all payments with respect to receivables which are not Receivables owned by the Company to accounts other than the Collection Accounts and the Master Servicer shall take all steps reasonably intended to cause such Obligors comply with such instructions;

 

provided that, sub-clause (ii) above shall not apply if (x) the Excluded Designated Line of Business is a Permitted Designated Line of Business Disposition or (y) the aggregate Principal Amount of Receivables removed from the pool of Receivables pursuant to the provisions of this Section 2.10 (excluding any Permitted Designated Line of Business) in the immediately preceding twelve (12) calendar months (including the Aggregate Principal Balance of such proposed Excluded Designated Line of Business) is less than ten per cent (10%) of the Aggregate Receivables Amount as of the date immediately prior to the proposed removal, withdrawal or termination of the relevant Approved Originator or proposed cessation of the Excluded Designated Line of Business.

 

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(c)            Upon and after notice being given pursuant to Section 2.10(b)(iv) , any Receivables with respect to an Excluded Designated Line of Business shall: (i) cease to be sold, transferred or contributed to the Contributor and/or the Company; and (ii) shall, assuming satisfaction of all other applicable requirements with respect to an Eligible Receivable, continue to be an Eligible Receivable only if (A) such Receivables were sold, transferred or contributed to the Company prior to the date such notice was given and (B) the Excluded Designated Line of Business has not yet been sold or otherwise disposed.

 

(d)            An Originator that is removed, terminated or withdrawn, or that is the Originator with respect to an Excluded Designated Line of Business, shall have a continuing obligation with respect to Receivables previously sold or contributed by it pursuant to the relevant Origination Agreement (including making Originator Dilution Adjustment Payments, Originator Adjustment Payments and payments in respect of indemnification) unless the Servicer Guarantor or an Affiliate of such Originator has assumed all such obligations; provided, however , that an Affiliate of such Originator may assume such Originator’s obligations only with the prior written consent of each Funding Agent.

 

SECTION 2.11            FX Hedging Policy.

 

The Trustee shall at all times comply with the FX Hedging Policy set forth in Schedule 6 hereto.

 

SECTION 2.12            Notices, Reports, Directions by Master Servicer.

 

Any information, notice or report to be delivered by, or any instructions, requests, demands, elections or directions to be given by, the Master Servicer under this Agreement is, unless otherwise indicated, being delivered or given by the Master Servicer on behalf of the Company in accordance with the provisions of this Agreement, the related Supplement and the Servicing Agreement.

 

SECTION 2.13            Power of Attorney.

 

(a)            The Company authorizes the Trustee, and hereby irrevocably appoints the Trustee, as its agent and attorney in fact coupled with an interest, with full power of substitution and with full authority in place of the Company, to take any and all steps in the Company’s name and on behalf of the Company, that are necessary or desirable, in the determination of the Trustee to collect amounts due under the Receivable Assets, including: (a) endorsing the Company’s name on checks and other instruments representing Collections of Receivable Assets and enforcing the Receivable Assets; (b) taking any of the actions provided for under Section 7.03 of the Contribution Agreement (or the corresponding provisions of any Origination Agreement); 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 file any claims or take any action or institute any proceedings that the Trustee (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

 

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any obligations or enforce any rights of the Company in respect of, the Receivable Assets. The rights under this Section 2.13a(a) shall not be exercisable with respect to the Company unless an Originator Termination Event has occurred and is continuing with respect to a relevant Originator (and then only to Receivables originated by such Originator) or a Program Termination Event as set forth in Section 7.02(a) of the Contribution Agreement or an Early Amortization Event has occurred and is continuing.

 

(b)            By execution and delivery of this Agreement, the Company, as owner of the Receivables and the Collections, hereby appoints J.P. Morgan Bank (Ireland) Plc for itself as its lawful agent for the purpose, as the case may be, of serving Notice of Subrogation on any or all Obligors pursuant to and subject to the conditions of the French Receivables Purchase Agreement. For the avoidance of doubt, the power of attorney granted hereunder is for the benefit of J.P. Morgan Bank (Ireland) Plc and not as trustee, agent, representative or “commissionaire” of any other party.

 

ARTICLE III

 

RIGHTS OF HOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS

 

THE FOLLOWING PORTION OF THIS ARTICLE III
IS APPLICABLE TO ALL SERIES.

 

SECTION 3.01            Establishment of the Company Concentration Accounts, Series Concentration Accounts and General Reserve Accounts; Certain Payments and Allocations.

 

(a)            Trustee’s Duties in Respect of the Company Concentration Accounts, Series Concentration Accounts and General Reserve Accounts.

 

(i)             The Trustee, for the benefit of the Company, as sole beneficial owner shall cause to be established and maintained in the name of the Trustee, with an Eligible Institution or with the corporate trust department of the Trustee or an Eligible Institution, a segregated account for each Approved Currency and, at the instruction of the Master Servicer, an additional segregated account for each currency designated as an Approved Currency after the date hereof (each a “ Company Concentration Account ” and, collectively, the “ Company Concentration Accounts ”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Company. Collections on deposit in the applicable Collection Account and Master Collection Account established pursuant to Section 2.09 of the Contribution Agreement, shall be transferred to the applicable currency Company Concentration Account on the Business Day following the day on which such Collections are received.

 

(ii)            The Trustee shall also cause to be established and maintained in the name of the Trustee, as Trustee of the Trust and for the benefit of the Investor Certificateholders, with such Eligible Institution for each

 

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Approved Currency, individual accounts for each Outstanding Series (each, for each Series a “ Series Concentration Account ” and, collectively, the “ Series Concentration Accounts ”). Each Series Concentration Account shall be solely and beneficially owned by the relevant Series for the benefit of the Investor Certificateholders of such Series and shall bear a designation clearly indicating that the funds deposited therein are held for the benefit of the relevant Series.

 

(iii)           The Trustee shall further establish or cause to be established for each Series, so long as such Series is an Outstanding Series, subaccounts of the Series Concentration Accounts with respect to each Series (respectively, the “ Series Principal Concentration Subaccount ”, “ Series Non-Principal Concentration Subaccount ” and “ Series Accrued Interest Subaccount ” and collectively, the “ Series Concentration Subaccounts ”. Schedule 1 hereto identifies each Collection Account, each Master Collection Account, each Company Concentration Account, each Series Concentration Account and subaccounts thereof and each Company Receipts Account by setting forth the account number of each such account and subaccount, the currency of the Collections or other amounts to be deposited into such account, the location of such account, the account designation of each such account and the name of the institution with which each such account has been established.

 

(iv)           On or before the Effective Date, the Trustee shall establish and maintain for the benefit of the Investor Certificateholders three segregated accounts (one for each Approved Currency) (each a “ General Reserve Account ” and collectively, the “ General Reserve Accounts ”) bearing a designation that the funds deposited therein are held for the benefit of the Investor Certificateholders. There shall be separate subaccounts of the General Reserve Accounts for each outstanding Series to the extent funds are required to be deposited therein with respect to such Series pursuant to the related Supplement. Funds shall be deposited to and withdrawn from the applicable subaccount of the General Reserve Accounts as and to the extent provided in each Supplement.

 

(v)            The Trustee shall establish and maintain for the benefit of the Company, as sole beneficial owner, a segregated account (the “ Withholding Tax Reserve Account ”), bearing a designation that the funds deposited therein are held for the benefit of the Company, which account shall be under the sole dominion and control of the Trustee and in which the Trustee shall have a first priority perfected security interest. If an amount is required to be credited to the Withholding Tax Reserve Account to satisfy a reserve requirement pursuant to paragraph (p) of the definition of “Eligible Receivables,” the Company shall remit or cause to be remitted or withdraw such amounts as are necessary to ensure that the balance of the Withholding Tax Reserve Account is equal to the amount necessary to satisfy any such requirement. The Company shall maintain a reserve for potential

 

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withholding tax liabilities regarding the Originators in Spain in an amount equal to €17,469. Amounts in the Withholding Tax Reserve Account shall be invested by the Trustee in accordance with Section 3.01(e) . Investment Earnings on funds held in the Withholding Tax Reserve Account shall be deposited by the Trustee in such account. In the event of the imposition of a withholding tax on any Collections, the Trustee shall be permitted to remit an amount equal to the resulting shortfall from amounts on deposit in the Withholding Tax Reserve Account to the relevant Master Collection Account.

 

(b)            Authority of the Trustee in Respect of Accounts.

 

(i)             The Trustee shall have a first priority perfected security interest in each of the Collection Accounts (or the Collection Account shall have been established in the name of the Trustee (whereby the Trustee may grant to the Company a revocable authorization to operate such accounts), or, if the Trustee shall not have such first priority perfected security interest or ownership interest in such accounts, the Company shall have established, or shall have caused Huntsman International to establish, appropriate reserves, as determined by the Funding Agents, to cover any failure of timely remittance in full of Collections from such accounts to the Master Collection Account or any other applicable account of the Trustee), the Master Collection Accounts, the Company Concentration Accounts and the General Reserve Accounts. Each of the Series Concentration Accounts and the General Reserve Accounts shall be under the sole dominion and control of the Trustee for the benefit of the Holders. If, at any time, the Master Servicer has actual notice or knowledge that any institution holding the Collection Accounts, the Master Collection Accounts, the Company Concentration Accounts or the General Reserve Accounts has ceased to be an Eligible Institution, the Master Servicer shall, on behalf of the Company, establish within thirty (30) days a substitute account therefor with an Eligible Institution, transfer any cash and any Eligible Investments to such new account and from the date any such substitute accounts are established, such newly established accounts shall be the Collection Accounts, the Master Collection Accounts. the Company Concentration Accounts and the General Reserve Accounts, as applicable. Neither the Company, the Master Servicer nor any person or entity claiming by, through or under the Company or the Master Servicer, shall have any right, title or interest in, except to the extent expressly provided under the Transaction Documents, or any right to withdraw any amount from, the Series Concentration Accounts or the General Reserve Accounts. So long as the security interest created hereunder subsists neither the Company nor the Master Servicer nor any person or entity claiming by, through or under the Company or the Master Servicer shall have any right to withdraw any amount from the Company Concentration Accounts except to the extent expressly provided in the Transaction Documents. Pursuant to the authority granted to the Master Servicer in Section 2.02(b) of the Servicing Agreement, the Master Servicer shall have the power to instruct the

 

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Trustee, in writing, to make withdrawals from and payments to the Company Concentration Accounts and the General Reserve Accounts for the purposes of carrying out the Master Servicer’s or Trustee’s duties hereunder.

 

(ii)            The Master Servicer agrees to give written direction (which may be included within any Daily Report) to apply all Aggregate Daily Collections with respect to the Receivables and to make all other applications and allocations described in Article III and in the Supplement with respect to each Outstanding Series.

 

(iii)           Each Series of Investor Certificates shall represent Fractional Undivided Interests in the right to receive amounts calculated by reference to Collections and other amounts at the times and in the amounts specified in this Article III (as supplemented by the Supplement related to such Series) to be deposited in the Collection Accounts or Master Collection Accounts and transferred to the Company Concentration Accounts and any other accounts secured for the benefit of the Investor Certificateholders or paid to the Investor Certificateholders (with respect to each outstanding Series, the “ Investor Certificateholders’ Interest ”). The Exchangeable Company Interest shall represent the Company’s exclusive beneficial ownership interest in the Participation Assets subject to any security interest granted by it under this Agreement and the Subordinated Company Interests, if any, shall represent the rights comprising such Subordinated Company Interests pursuant to the related Supplement; provided , however , that no such Exchangeable Company Interest or Subordinated Company Interests shall represent any interest in any Trust Account and any other accounts maintained for the benefit of the Investor Certificateholders, except as specifically provided in this Article III .

 

(c)            Establishment of the Company Receipt Accounts . The Company, for its own benefit and as sole beneficial owner shall cause to be established and maintained in its name, a segregated account for each Approved Currency (each a “ Company Receipts Account ” and, collectively the “ Company Receipts Accounts ”), bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Company.

 

(d)            Additional Accounts . The Company may establish and maintain in the name of the Trustee, as trustee of the Trust, segregated accounts in addition to or in place of the segregated accounts set forth in Schedule 1 , provided that such accounts are established and maintained at an Eligible Institution and, provided , further , that prior to establishing such accounts, the Company shall have (i) obtained the prior written consent of any Funding Agent and (ii) the Trustee and the Funding Agents shall have received an Opinion of Counsel from a nationally recognized law firm (which, as to factual matters, may be based on a certificate of the Company) to the effect that such changes in the accounts do not materially and adversely affect the Investor Certificateholders.

 

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(e)            Administration of the Series Concentration Accounts and the General Reserve Accounts by the Trustee . At the written direction of the Master Servicer, funds on deposit in the Series Concentration Accounts and the General Reserve Accounts available for investment, shall be invested by the Trustee in Eligible Investments selected by the Master Servicer. All such Eligible Investments shall be held by the Trustee as trustee for the benefit of the Investor Certificateholders. Amounts on deposit in each Series Non-Principal Concentration Subaccount and the General Reserve Accounts shall, if applicable, be invested in Eligible Investments that will mature on or before the Business Day immediately preceding the next Distribution Date. All interest and investment earnings (net of losses and investment expenses) on funds deposited in any Series Non-Principal Concentration Subaccount shall be deposited in such subaccount. Amounts on deposit in any Series Principal Concentration Subaccount and any other accounts or subaccounts as specified in the related Supplement shall be invested in Eligible Investments that mature no later than the Business Day prior to the date which is specified in any Supplement. The Trustee, or its nominee or custodian, shall maintain possession of the negotiable instruments or securities, if any, evidencing any Eligible Investments from the time of purchase thereof until the time of sale or maturity. Any earnings (net of losses and investment expenses) (the “ Investment Earnings ”) on such invested funds in a Series Principal Concentration Subaccount and any other accounts or subaccounts as specified in the related Supplement will be deposited by the Trustee in the related Series Non-Principal Concentration Subaccount. Investment Earnings on funds held in any subaccount of the General Reserve Accounts shall be deposited by the Trustee in such subaccount.

 

(f)             Daily Collections .

 

(i)             On the Business Day Received, promptly following the receipt of Collections in the form of available funds in any Collection Account, the Company shall have authorized a transfer of all Collections on deposit in (A) any Collection Account with respect to the U.S. Originators directly to the applicable Company Concentration Account, such transfer to be completed by 12:30 p.m. London time on the next succeeding Business Day following the day on which such Collections are received in the Collection Account, each such individual transfer amount to be reported by the Master Servicer to the Trustee by 10:00 a.m. London time; and (B) any Collection Account with respect to the European Originators directly to the applicable Master Collection Account.

 

(ii)            Promptly following the transfer of Collections to the applicable Master Collection Account, the Master Servicer shall transfer, or cause to be transferred, such transfer to be completed by 12:30 p.m. London time on the next succeeding Business Day following the day on which such Collections are received in the Master Collection Accounts, an amount equal to the amount of Collections to the applicable Company Concentration Account.

 

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(iii)           Promptly following the transfer of Collections to the applicable Company Concentration Account, but in no event later than the next succeeding Business Day of the Collections being received in such Company Concentration Accounts, the Master Servicer shall calculate (such calculations to be contained in the Daily Report) and direct the Trustee to make the transfers, allocations and distributions set forth in Sections 3.01(f) , 3.01(g) , 3.01(h) , 3.01(i), 3.01(j) and 3.01(k) , as applicable, based on such Aggregate Daily Collections as demonstrated in the Daily Report.

 

(iv)           If the Aggregate Daily Collections are deposited into a Company Concentration Account pursuant to Section 3.01(b)(ii) at or before 12:30 p.m. London time, and the Daily Report specified in Section 3.01(b)(ii) is received by the Trustee at or before 12:30 p.m. London time, the Trustee shall transfer, within a reasonable time, on such Business Day, from the Company Concentration Accounts to the respective Series Concentration Accounts, an amount equal to the product of (x) the applicable Invested Percentage for such Outstanding Series and (y) such Aggregate Daily Collections (in accordance with the Daily Report which should be reconciled with balances in the Company Concentration Accounts).

 

(v)            If (A) the applicable amount referred to in Section 3.01(f)(iv) is deposited into a Series Concentration Account at or before 12:30 p.m. London time, and the Daily Report is received by the Trustee at or before 12:30 p.m. London time, as set forth in Section 3.01(f)(iv) , or (B) the Servicer has deposited Servicer Advances into a Series Concentration Account, the Trustee shall transfer, within a reasonable time but in any event no later than 2:30 p.m. London time funds, on such Business Day, from the Series Concentration Account for each Outstanding Series to the Series Non-Principal Concentration Subaccount, the Series Principal Concentration Subaccount and the Series Accrued Interest Subaccount of each such Series in accordance with the Daily Report and the related Supplement for such Series.

 

(vi)           Except as otherwise provided in a Supplement, if the applicable amount referred to in Section 3.01(f)(iv) is deposited into the Company Concentration Accounts at or before 12:30 p.m. London time, and the Daily Report is received by the Trustee at or before 12:30 p.m. London time, as set forth in Section 3.01(f)(iv) , the Trustee shall, in accordance with the Daily Report, transfer, within a reasonable time, but in any event no later than 2:30 p.m. London time, on such Business Day, to the relevant Company Receipts Account the remaining funds, if any, on deposit in the Company Concentration Accounts on such day after giving effect to the distributions to be made pursuant to the Supplement for any Outstanding Series.

 

(vii)          If the Collections received in respect of a Receivable that is not set forth in a Daily Report can be identified by the Master Servicer within five (5) Local Business Days of receipt, the Master Servicer shall send written notice to the Trustee identifying such Receivable and setting

 

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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 transferred to the relevant Company Receipts Account by the Trustee.

 

(g)            Certain Allocations Following an Amortization Period .

 

(i)             If, on any Settlement Report Date, an Amortization Period has occurred and is continuing with respect to any Outstanding Series and at such Settlement Report Date, a Revolving Period is still in effect with respect to any other Outstanding Series (a “ Special Allocation Settlement Report Date ”), then the Master Servicer shall calculate the following amounts:

 

(A)           the amount (the “ Allocable Charged-Off Amount ”) equal to the excess, if any, of (I) the aggregate Principal Amount of Charged-Off Receivables for the related Settlement Period over (II) the aggregate Principal Amount of Recoveries received during the related Settlement Period; and

 

(B)            the amount (the “ Allocable Recoveries Amount ”) equal to the excess, if any, of (I) the aggregate Principal Amount of Recoveries received during the related Settlement Period over (II) the aggregate Principal Amount of Charged-Off Receivables for the related Settlement Period.

 

(ii)            If, on any Special Allocation Settlement Report Date, either of the Allocable Charged-Off Amount or the Allocable Recoveries Amount is greater than zero for the related Settlement Period, the Trustee shall (in accordance with written directions received pursuant to Section 3.01(b)(ii) ) make (A) a pro rata allocation to each Outstanding Series (based on the Invested Percentage for such Series) of a portion (as determined in clause (iii) below) of each such positive amount and (B) a pro rata allocation to the Exchangeable Company Interest of the remaining portion of each such positive amount.

 

(iii)           With respect to each portion of the Allocable Charged-Off Amount and the Allocable Recoveries Amount which is allocated to an Outstanding Series pursuant to Section 3.01(g)(ii) , the Trustee shall (in accordance with the written direction of the Master Servicer) apply each such amount to such Series in accordance with the related Supplement for such Series.

 

(h)            Allocations for the Exchangeable Company Interest . On each Business Day and, after the occurrence and continuation of a Potential Early Amortization Event or an Early Amortization Event in each case set forth in Section 7.1 of the Agreement, and until the Trust Termination Date, on each Distribution Date, after making all transfers and allocations required pursuant to Section 3.01(f) , the Trustee shall (in accordance with the written direction of the

 

37

 

Master Servicer (which may be given in the form of the Daily Report) upon which the Trustee may conclusively rely) transfer no later than 2:30 p.m. London time, on such Business Day, the amounts on deposit in the Company Receipts Accounts to the holder of the Exchangeable Company Interest or to such accounts or such Persons as the holder of the Exchangeable Company Interest may direct in writing (which direction may consist of standing instructions provided by the holder of the Exchangeable Company Interest that shall remain in effect until changed by such holder of the Exchangeable Company Interest in writing); provided , however , that a transfer for purposes of this Section 3.0(h) shall be deemed to have occurred at such time as the Trustee instructs the bank at which the Company Concentration Accounts are held to debit the Company Concentration Accounts in the amount of the outgoing amount; provided , further , that a failure of the Trustee to transfer funds by 2:30 p.m. London time, shall not be a breach of this Section 3.01(h) if (i) the same bank wire transfer program is not used by the Company and the Trustee to make such transfers or (ii) a Trustee/Master Servicer Force Majeure Delay occurs, and in either such event the Trustee shall use its best efforts to transfer funds within a reasonable time.

 

(i)             Setoff . In addition to the provisions of Section 8.05 , (i) if the Company shall fail to make a payment as provided in this Agreement or any Supplement, the Trustee may set off and apply any amounts otherwise payable to the Company under any Transaction Document. The Company hereby waives demand, notice or declaration of such setoff and application; and (ii) in the event the Master Servicer shall fail to make a payment as provided in any Transaction Document, the Trustee may set off and apply any amounts otherwise payable to the Master Servicer in its capacity as Master Servicer under the Transaction Documents on account of such obligation. The Master Servicer hereby waives demand, notice or declaration of such setoff and application.

 

(j)             Allocation and Application of Funds . The Master Servicer shall direct the Trustee in writing (which may be given in the form of the Daily Reports and the Monthly Settlement Reports) to apply all amounts computed by reference to Aggregate Daily Collections with respect to the Receivables as described in this Article III and in the Supplement with respect to each Outstanding Series. The Master Servicer shall direct the Trustee in writing to pay such collections and other amounts to the holder of the Exchangeable Company Interest to the extent such amounts are allocated to the Exchangeable Company Interest under Section 3.01(h) and as otherwise provided in Article III if and to the extent that such amounts represent amounts transferred to a Company Receipts Account pursuant to Section 3.01(f)(vi) or (as the case may be) Section 3.01(f)(vii) such amounts shall be paid to the holder of the Exchangeable Company Interests by way of consideration for the grant of the Participation pursuant to Section 2.01(a) . Unless otherwise provided in one or more Supplements, if the Trustee receives any Daily Report at or before 12:30 p.m. London time, on any Business Day, the Trustee shall make any applications of funds required thereby on the same Business Day, but in any event no later than 2:30 p.m. London time and otherwise on the next succeeding Business Day.

 

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(k)            FX Forward Payments .

 

(i)             All payments made under the FX Forward Agreements shall be paid directly into the applicable Company Concentration Account.

 

(ii)            If the payments under the FX Forward Agreements are deposited into a Company Concentration Account pursuant to the preceding Section 3.01(k)(i) no later than 12:30 p.m. London time, and the Daily Report specified in Section 3.01(b)(ii) is received by the Trustee no later than 12:30 p.m. London time, the Trustee shall transfer, within a reasonable time, on such Business Day, from the Company Concentration Accounts, to the respective Series Concentration Accounts, an amount equal to the product of (x) the payments that have been made under the FX Forward Agreements (in accordance with the Daily Report which should be reconciled with balances in the Company Concentration Accounts) and (y) a percentage with respect to each Series determined as (A) the Invested Amount with respect to such Series at such time divided by (B) the Invested Amount with respect to all Series at such time.

 

(iii)           If the applicable amount referred to in Section 3.01(k)(ii) is deposited into a Series Concentration Account no later than 12:30 p.m. London time, and the Daily Report is received by the Trustee no later than 12:30 p.m. London time, as set forth in the preceding Section 3.01(k)(ii) , the Trustee shall transfer, within a reasonable time but in any event no later than 2:30 p.m. London time funds, on such Business Day, from the Series Concentration Account for each Outstanding Series to the Series Non-Principal Concentration Subaccount, the Series Principal Concentration Subaccount and the Series Accrued Interest Subaccount of each such Series in accordance with the Daily Report and the related Supplement for such Series.

 

THE REMAINDER OF ARTICLE III SHALL BE SPECIFIED IN THE SUPPLEMENT WITH RESPECT TO EACH SERIES. SUCH REMAINDER SHALL BE APPLICABLE ONLY TO THE SERIES RELATING TO THE SUPPLEMENT IN WHICH SUCH REMAINDER APPEARS.

 

ARTICLE IV

 

ARTICLE IV IS RESERVED
AND MAY BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO THE SERIES RELATING THERETO

 

ARTICLE V

 

THE INVESTOR CERTIFICATES AND
EXCHANGEABLE COMPANY INTEREST

 

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SECTION 5.01            The Investor Certificates.

 

The Investor Certificates of each Series and any Class thereof shall be substantially in the form of the exhibits with respect thereto attached to the applicable Supplement. The Investor Certificates shall, upon issue, be executed by the Trustee (on behalf of the Trust and without the Trustee incurring any personal liability in respect of the Investor Certificates) and the Trustee shall authenticate and redeliver the Investor Certificates as provided in Section 5.02 . Except as otherwise set forth as to any Series or Class in the related Supplement, the Investor Certificates shall be issued by the Trust in minimum denominations of $1,000,000 and in integral multiples of $100,000 in excess thereof. Each Investor Certificate shall be executed by manual or facsimile signature by the Trustee or a Responsible Officer of the Trustee on behalf of the Trustee. Investor Certificates bearing the manual or facsimile signature of the individual who was, at the time when such signature was affixed, authorized to sign on behalf of the Trustee shall not be rendered invalid, notwithstanding that such individual has ceased to be so authorized prior to or on the date of the authentication and delivery of such Investor Certificates or does not hold such office at the date of such Investor Certificates. No Investor Certificate shall be entitled to any benefit under this Agreement, or be valid for any purpose, unless there appears on such Investor Certificate a certificate of authentication substantially in the form provided for herein executed by or on behalf of the Trustee by the manual signature of a duly authorized signatory, and such certificate of authentication upon any Investor Certificate shall be conclusive evidence, and the only evidence, that such Investor Certificate has been duly authenticated and delivered hereunder. All Investor Certificates shall be dated the date of their authentication but failure to do so shall not render them invalid. Unless otherwise specified in the Supplement for each Series, Investor Certificates for each Series and any Class thereof shall be in fully registered form.

 

In addition to the foregoing, the Supplement for each Series may specify the relevant terms with respect to such Series, which terms may include, as applicable: (i) its name or designation, (ii) the aggregate principal amount of Investor Certificates of such Series, (iii) the Certificate Rate (or the method for calculating such Certificate Rate) with respect to such Series, (iv) the interest payment date or dates and the date or dates from which interest shall accrue, (v) the method of applying Collections with respect to such Series towards the satisfaction of amounts payable by the Company in respect of Investor Certificates of such Series and the method by which the principal amount of Investor Certificates of such Series shall amortize or accrete, (vi) the names of any accounts to be used by such Series and the terms governing the operation of any such account, (vii) whether the Investor Certificates of such Series may be issued in bearer form or registered form and any limitations imposed on transfer, sale or exchange thereon, including the limitations provided in Section l65(j) and 1287(a) of the Code, (viii) the Series Termination Date, (ix) whether the Investor Certificates will be issued in multiple classes and, if so, the method of applying Collections among such classes as described under clause (v) of this paragraph and (x) any other relevant terms of such Series of Investor Certificates that do not (subject to Sections 8.14 and 10.01(b) hereof) change the terms of any Outstanding Series of Investor Certificates or otherwise materially conflict with the provisions of this Agreement.

 

SECTION 5.02            Authentication of Certificates.

 

(a)            Authentication and Delivery of Certificates . The Trustee shall authenticate and deliver the initial Series of Investor Certificates that are issued upon the written order of the Master Servicer in a form reasonably satisfactory to the Trustee, to the holders of the initial Series of Investor Certificates, against payment for the first Series issued by the Trustee of the Initial Invested

 

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Amount to the Company. The Investor Certificates shall be duly authenticated by or on behalf of the Trustee in authorized denominations equal to (in the aggregate) such Initial Invested Amount. Upon a Company Exchange as provided in Section 5.11 and the satisfaction of the conditions specified therein, the Trustee shall authenticate and deliver the Investor Certificates of additional Series (with the designation provided in the applicable Supplement) (or, if provided in any Supplement, the additional Investor Certificates of an existing Series), upon the written order of the Company, to the Persons designated in such Supplement. Upon the written order of the Master Servicer, the Investor Certificates of any Series shall be duly authenticated by or on behalf of the Trustee, in authorized denominations equal to (in the aggregate) the Initial Invested Amount of such Series of Investor Certificates.

 

(b)            Company Certificates . Upon written request of the Master Servicer, the Trustee shall authenticate and deliver to the Company one or more certificates representing the Exchangeable Company Interest in a form reasonably satisfactory to the Trustee. Such certificates shall be duly authenticated by or on behalf of the Trustee in denominations as requested by the Company. The Company shall pay all costs associated with such issuance of certificates.

 

SECTION 5.03            Registration of Transfer and Exchange of Investor Certificates.

 

(a)            With respect to Investor Certificates of a Series which are issued in registered form, the Trustee shall cause to be kept at the office or agency to be maintained by a transfer agent and registrar (which may be the Trustee) (the “ Transfer Agent and Registrar ”) in accordance with the provisions of Section 8.16 a register (the “ Certificate Register ”) in which, subject to such reasonable regulations as the Trustee may prescribe, the Transfer Agent and Registrar shall provide for the registration of the Investor Certificates and of transfers and exchanges of the Investor Certificates as herein provided. The Company hereby appoints J.P. Morgan Bank (Ireland) plc as Transfer Agent and Registrar for the purpose of registering the Investor Certificates and transfers and exchanges of the Investor Certificates as herein provided. J.P. Morgan Bank (Ireland) plc shall be permitted to resign as Transfer Agent and Registrar upon 30 days’ prior written notice to the Company, the Trustee and the Master Servicer; provided , however , that such resignation shall not be effective and J.P. Morgan Bank (Ireland) plc shall continue to perform its duties as Transfer Agent and Registrar until the Trustee has appointed a successor Transfer Agent and Registrar reasonably acceptable to the Company and such successor Transfer Agent and Registrar has accepted such appointment. The provisions of Sections 8.01 , 8.02 , 8.03 , 8.05 , and 10.19 shall apply to J.P. Morgan Bank (Ireland) plc (or the Trustee to the extent it is so acting) also in its role as Transfer Agent or Registrar, as the case may be, for so long as J.P. Morgan Bank (Ireland) plc (or the Trustee to the extent it is so acting) shall act as Transfer Agent or Registrar, as the case may be.

 

Each of the Master Servicer and the Company hereby jointly and severally agrees to provide the Trustee from time to time sufficient funds, on a timely basis and in accordance with and subject to Section 8.05 , for the payment of any reasonable compensation payable to the Transfer Agent and Registrar for its services under this Section 5.03 and under Section 5.10 . The Trustee

 

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hereby agrees that, upon the receipt of such funds from the Company, it shall pay the Transfer Agent and Registrar such amounts.

 

Upon surrender for registration of transfer of any Investor Certificate at any office or agency of the Transfer Agent and Registrar maintained for such purpose, the Trustee shall execute (on behalf of the Trust), and the Trustee shall, upon the written order of the Company, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Investor Certificates in authorized denominations of the same Series (and Class) representing like aggregate Fractional Undivided Interests and which bear numbers that are not contemporaneously outstanding.

 

At the option of an Investor Certificateholder, Investor Certificates may be exchanged for other Investor Certificates of the same Series (and Class) in authorized denominations of like aggregate Fractional Undivided Interests, bearing numbers that are not contemporaneously outstanding, upon surrender of the Investor Certificates to be exchanged at any such office or agency of the Transfer Agent and Registrar maintained for such purpose.

 

Whenever any Investor Certificates of any Series are so surrendered for exchange, the Trustee shall execute (on behalf of the Trust), and the Trustee shall, upon the written order of the Company, authenticate and (unless the Transfer Agent and Registrar is different from the Trustee, in which case the Transfer Agent and Registrar shall) deliver, the Investor Certificates of such Series which the Investor Certificateholder making the exchange is entitled to receive. Every Investor Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer, with sufficient instructions, duly executed by the Investor Certificateholder thereof or his attorney-in-fact duly authorized in writing delivered to the Trustee (unless the Transfer Agent and Registrar is different from the Trustee, in which case to the Transfer Agent and Registrar) and complying with any requirements set forth in the applicable Supplement.

 

No service charge shall be made for any registration of transfer or exchange of Investor Certificates, but the Transfer Agent and Registrar may require any Investor Certificateholder that is transferring or exchanging one or more Investor Certificates to pay a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Investor Certificates.

 

All Investor Certificates surrendered for registration of transfer and exchange shall be cancelled and disposed of in a customary manner satisfactory to the Trustee.

 

The Trustee (on behalf of the Trust and without incurring personal liability with respect to the Investor Certificates) shall execute and deliver Investor Certificates to the Transfer Agent and Registrar in such amounts and at such times as are necessary to enable the Transfer Agent and Registrar to fulfill their respective responsibilities under this Agreement and the Investor Certificates.

 

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(b)            The Transfer Agent and Registrar will maintain at its expense in Ireland and, subject to Section 5.03(a) , if specified in the related Supplement for any Series, any other city outside the United Kingdom designated in such Supplement, an office or offices or agency or agencies where Investor Certificates may be surrendered for registration or transfer or exchange.

 

(c)            Unless otherwise stated in any related Supplement, registration of transfer of Investor Certificates containing a legend relating to restrictions on transfer of such Investor Certificates (which legend shall be set forth in the Supplement relating to such Investor Certificates) shall be effected only if the conditions set forth in the related Supplement are complied with.

 

Investor Certificates issued upon registration or transfer of, or in exchange for, Investor Certificates bearing the legend referred to above shall also bear such legend unless the Company, the Master Servicer, the Trustee and the Transfer Agent and Registrar receive an Opinion of Counsel satisfactory to each of them, to the effect that such legend may be removed.

 

SECTION 5.04            Additional Issuance of Certificates.

 

(a)            The Company may cause the Trustee to issue one or more additional Series. To the extent provided in the related Supplement, the Company may cause the Trustee to increase the Invested Amount of a Class of Investor Certificates of an Outstanding Series and an increase in any related Subordinated Company Interests.

 

(b)            A new issuance or an additional issuance, as the case may be, may only occur upon delivery to the Trustee of, among other things, the following: (i) an additional Supplement specifying the principal terms of such Series (except in the case of an additional issuance to the extent provided in the related Supplement) and (ii) the applicable credit enhancement, if any.

 

SECTION 5.05            Mutilated, Destroyed, Lost or Stolen Investor Certificates.

 

With respect to Investor Certificates of a Series which are issued in registered form, if (a) any mutilated Investor Certificate is surrendered to the Transfer Agent and Registrar, or the Transfer Agent and Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Investor Certificate and (b) there is delivered to the Transfer Agent and Registrar and the Trustee such security or indemnity as may be required by them to save the Trust, each of them and the Company harmless, then, in the absence of actual notice to the Trustee or Transfer Agent and Registrar that such Investor Certificate has been acquired by a bona fide purchaser, and, upon the written request of the Company, the Trustee shall authenticate and deliver on behalf of the Trust, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Investor Certificate, a new Investor Certificate of like tenor and aggregate Fractional Undivided Interest and bearing a number that is not contemporaneously outstanding. In connection with the issuance of any new Investor Certificate under this Section 5.05 , the Trustee or the Transfer Agent and Registrar may require the payment by the Investor Certificateholder of a sum sufficient to cover any tax or other governmental expenses (including the fees and expenses of the Trustee and Transfer Agent and Registrar) connected therewith. Any duplicate Investor Certificate issued pursuant to this Section 5.05 shall constitute complete and indefeasible evidence of ownership in the Trust, as if originally

 

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issued, whether or not the lost, stolen or destroyed Investor Certificate shall be found at any time.

 

SECTION 5.06            Persons Deemed Owners.

 

At all times prior to due presentation of an Investor Certificate for registration of transfer, if applicable, the Company, the Trustee, the Paying Agent, the Transfer Agent and Registrar, any Funding Agent and any agent of any of them may treat the Person in whose name any Investor Certificate is registered as the owner of such Investor Certificate for the purpose of receiving distributions pursuant to Article IV of the related Supplement and for all other purposes whatsoever, and neither the Trustee, the Paying Agent, the Transfer Agent and Registrar nor any agent of any of them shall be affected by any notice to the contrary. Notwithstanding the foregoing provisions of this Section 5.06 , in determining whether the Investor Certificateholders of the requisite Fractional Undivided Interests have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Investor Certificates owned by the Company, or any Affiliate thereof, shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Investor Certificates which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Investor Certificates so owned by the Company or any Affiliate thereof which have been pledged in good faith shall not be disregarded and may be regarded as outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Investor Certificates and that the pledgee is not the Company or any Affiliate thereof.

 

SECTION 5.07            Appointment of Paying Agent; Distributions by Paying Agent.

 

The Paying Agent shall make distributions to Investor Certificateholders from the Series Concentration Accounts (and/or any other account or accounts maintained for the benefit of Investor Certificateholders as specified in the related Supplement for any Series) pursuant to Articles III and IV . The Trustee may revoke such power and remove the Paying Agent if the Trustee determines in its sole discretion that the Paying Agent shall have failed to perform its obligations under this Agreement in any material respect. Unless otherwise specified in the related Supplement for any Series and with respect to such Series, the Paying Agent shall initially be J.P. Morgan Bank (Ireland) plc and any co-paying agent chosen by J.P. Morgan Bank (Ireland) plc. Each Paying Agent other than the Initial Paying Agent shall have a combined capital and surplus of at least $100,000,000. The Paying Agent shall be permitted to resign upon thirty (30) days’ prior written notice to the Trustee. In the event that the Paying Agent shall so resign, the Trustee shall appoint a successor to act as Paying Agent (which shall be a depositary institution or trust company) reasonably acceptable to the Company which appointment shall be effective on the date on which the Person so appointed gives the Trustee written notice that it accepts the appointment. Any resignation or removal of the Paying Agent and appointment of successor Paying Agent pursuant to this Section 5.07 shall not become effective until acceptance of appointment by the successor Paying Agent, as provided in this Section 5.07 . The Trustee shall cause such successor Paying Agent or any additional Paying Agent appointed by the Trustee to execute and deliver to the Trustee an instrument in which such successor Paying Agent or additional Paying Agent shall agree with the Trustee that as Paying Agent, such successor Paying Agent or additional Paying Agent will hold all sums, if any, held by it for payment to the Holders in trust for the benefit of the Holders entitled thereto until such sums shall be paid to such Holders. The Paying Agent shall return all unclaimed funds to the Trustee and upon removal of a Paying Agent such

 

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Paying Agent shall also return all funds in its possession to the Trustee. The provisions of Sections 8.01 , 8.02 , 8.03 , 8.05 and 10.19 shall apply to J.P. Morgan Bank (Ireland) plc (or the Trustee to the extent it is so acting) also in its role as Paying Agent, for so long as J.P. Morgan Bank (Ireland) plc (or the Trustee to the extent it is so acting) shall act as Paying Agent. Any reference in this Agreement to the Paying Agent shall include any co-paying agent unless the context requires otherwise.

 

The Company hereby agrees to provide the Trustee from time to time sufficient funds, on a timely basis and in accordance with and subject to Section 8.05 , for the payment of any reasonable compensation payable to the Paying Agent for its services under this Section 5.07 . The Trustee hereby agrees that, upon the receipt of such funds from the Company, it shall pay the Paying Agent such amounts.

 

SECTION 5.08          Access to List of Investor Certificateholders’ Names and Addresses.

 

With respect to Investor Certificates of a Series which are issued in registered form, the Trustee will furnish or cause to be furnished by the Transfer Agent and Registrar to the Company, the Master Servicer or the Paying Agent, within ten (10) Business Days after receipt by the Trustee of a request therefor from the Company, the Master Servicer or the Paying Agent, respectively, in writing, a list of the names and addresses of the Investor Certificateholders as then recorded by or on behalf of the Trustee. The costs and expenses incurred in connection with the provision of such list shall constitute Program Costs under the Supplement for the applicable Series. If three or more Investor Certificateholders of record or any Investor Certificateholder of any Series or a group of Investor Certificateholders of record representing Fractional Undivided Interests aggregating not less than 10% of the Invested Amount of the related Outstanding Series (the “ Applicants ”) apply in writing to the Trustee, and such application states that the Applicants desire to communicate with other Investor Certificateholders of any Series with respect to their rights under this Agreement or under the Investor Certificates and is accompanied by a copy of the communication which such Applicants propose to transmit, then the Trustee, after having been adequately indemnified by such Applicants for its costs and expenses, shall transmit or shall cause the Transfer Agent and Registrar to transmit, such communication to the Investor Certificateholders reasonably promptly after the receipt of such application.

 

Every Investor Certificateholder, by receiving and holding an Investor Certificate, agrees with the Trustee that neither the Trustee, the Transfer Agent and Registrar, nor any of their respective agents, officers, directors or employees shall be held accountable by reason of the disclosure or mailing of any such information as to the names and addresses of the Investor Certificateholders hereunder, regardless of the sources from which such information was derived.

 

As soon as practicable following each Record Date, the Trustee shall provide to the Paying Agent or its designee, a list of Investor Certificateholders in such form as the Paying Agent may reasonably request.

 

SECTION 5.09            Authenticating Agent

 

(a)            The Trustee may appoint one or more authenticating agents with respect to the Investor Certificates which shall be authorized to act on behalf of the Trustee in authenticating the Investor Certificates in connection with the issuance,

 

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delivery, registration of transfer (if applicable), exchange or repayment of the Investor Certificates; provided, that each such authenticating agent shall satisfy the conditions set forth in Section 8.02(a) . Whenever reference is made in this Agreement to the authentication of Investor Certificates by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication on behalf of the Trustee by an authenticating agent and a certificate of authentication executed on behalf of the Trustee by an authenticating agent.

 

(b)            Any institution succeeding to the corporate trust business of an authenticating agent shall continue to be an authenticating agent without the execution or filing of any paper or any further act on the part of the Trustee or such authenticating agent; provided such institution satisfies the conditions set forth in Section 8.02(a) .

 

(c)            An authenticating agent may at any time resign by giving written notice of resignation to the Trustee. Upon the r