SECOND AMENDMENT TO THE SECOND AMENDED AND RESTATED POOLING AGREEMENT

 

“(j)           References to the Pooling Agreement in any other document or agreement inclusive of the Transaction Documents shall be deemed to be references to this agreement as amended, restated, supplemented or otherwise modified from time to time and all assignments hereof.”

 

3.              The Pooling Agreement Parties hereby agree that Section 1.02 of the Pooling Agreement shall be and hereby is amended by adding the following new paragraph (k):

 

“(k)          References to any other Transaction Document or any other document or agreement in this Pooling Agreement shall be deemed to be references to any such document or agreement as amended, restated, supplemented or otherwise modified from time to time.”

 

4.              The Pooling Agreement Parties hereby agree that Article I of the Pooling Agreement shall be and hereby is amended by adding the following new Section 1.03 :

 

“ SECTION 1.03 Calculations.

 

All calculations under this Agreement shall be in U.S. Dollars so that for purposes of calculating or determining any Invested Amount, any Invested Percentage, the Aggregate Receivables Amount and any Target Receivables Amount and any term or amount incorporated into any of the foregoing definitions or calculations, amounts denominated in a currency other than U.S. Dollars shall be converted on a pro forma basis into U.S. Dollars at the Spot Rate as in effect on the date of the relevant calculations or determination.”

 

5.              The Pooling Agreement Parties hereby agree that Annex X to the Pooling Agreement shall be and hereby is amended by deleting the existing Annex X in its entirety and replacing it with Annex X in the form attached hereto as Schedule VI .

 

6.              The Pooling Agreement Parties hereby agree that Part (D)  of Schedule 1 to the Pooling Agreement shall be and hereby is amended by deleting the existing Part (D)  of Schedule 1 in its entirety and replacing it with Part (D)  of Schedule 1 in the form attached hereto as Schedule I .

 

7.              The Pooling Agreement Parties hereby agree that Part (F)  of Schedule 1 to the Pooling Agreement shall be and hereby is amended by deleting the existing Part (F)  of Schedule 1 in its entirety and replacing it with Part (F)  of Schedule 1 in the form attached hereto as Schedule II .

 

8.              The Pooling Agreement Parties hereby agree that Schedule 3 to the Pooling Agreement shall be and hereby is amended by deleting the existing Schedule 3 in its entirety and replacing it with Schedule 3 in the form attached hereto as Schedule III .

 

9.              The Pooling Agreement Parties hereby agree that Schedule 4 to the Pooling Agreement shall be and hereby is deleted in its entirety.

 

10.            The Pooling Agreement Parties hereby agree that Schedule 5 to the Pooling Agreement shall be and hereby is amended by deleting the existing Schedule 5 in its entirety and replacing it with Schedule 5 in the form attached hereto as Schedule IV .

 

11.            The Pooling Agreement Parties hereby agree that Schedule 6 to the Pooling Agreement shall be and hereby is amended by deleting the existing Schedule 6 in its entirety and replacing it with Schedule 6 in the form attached hereto as Schedule V .

 

12.            The Pooling Agreement Parties hereby agree that notwithstanding anything to the contrary in the Series 2000-1 Supplement or the Pooling Agreement:

 

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(a)        the payment of Series 2000-1 Pay-Off Amounts to the Series 2000-1 Finance Parties in accordance with Section 2.14(b)  through Section 2.14(g)  of the Series 2000-1 Supplement shall be deemed to be a final distribution pursuant to Section 9.03 of the Pooling Agreement with respect to the Series 2000-1 VFC Certificates and, on the date it receives such notices of receipt of the Series 2000-1 Pay-Off Amounts (the “ Release Date ”), the Trustee shall release the security interest granted to the Trustee for the benefit of the Holders pursuant to the Pooling Agreement in accordance with Section 2.14(g)  of the Series 2000-1 Supplement as if the requirements of Section 9.04 of the Pooling Agreement had been met;

 

(b)        following the Release Date, by 12.30 p.m. (London time) on each Business Day, the Trustee shall transfer all funds then on deposit in each Company Concentration Account and each Series Account to the relevant Company Receipts Account; provided that the Trustee may deduct its pro rated monthly fees of USD 4,583.33 per month from such transfers; and

 

(c)        on and after the Release Date, the Trustee shall have no further obligations or duties under the Pooling Agreement, except (i) as provided in clause (b)  above, (ii) any actions required to be performed by the Trustee in connection with the termination of the Trust or the release of the security interest granted under the Pooling Agreement and (iii) any provisions of the Pooling Agreement which are expressed to survive the termination of the Pooling Agreement.

 

13.            The amendments under Sections 2 through 12 of this Amendment shall become effective upon:  (a) the Second Amended and Restated Series 2000-1 Supplement, dated as of the date hereof, among others, the parties hereto becoming effective in accordance with its terms; (b) satisfaction of the conditions set forth in Section 2.09(b)  of the Pooling Agreement with respect to the addition of Huntsman Advanced Materials (Europe) BVBA and Huntsman Advanced Materials Americas Inc. as Approved Originators; (c) the Amendment to Second Amended and Restated Servicing Agreement dated as of the date hereof, by, among others, the parties hereto becoming effective in accordance with its terms; and (d) satisfaction or waiver of the conditions set forth in Section 2.10 of the Pooling Agreement with respect to the removal of Huntsman Petrochemicals (UK) Limited, Huntsman Expandable Polymers Corporation LC and Huntsman Polymers Corporation as Approved Originators, in each case to the satisfaction (in form and substance) of the Series 2000-1 Purchasers.

 

14.            The Funding Agents, the Series 2000-1 Conduit Purchasers, the Series 2000-1 APA Banks and the Administrative Agent hereby acknowledge and consent to the provisions of this Amendment.

 

15.            Each of the parties hereto hereby agrees that the Fourth Amendment to Series 2000-1 Supplement and Third Amendment to Pooling Agreement dated as of October 27, 2008 (the “ October Amendment ”), by, among others, the Company, the Master Servicer, the Trustee, and certain of the Series 2000-1 Conduit Purchasers, the Series 2000-1 APA Banks and the Funding Agents, and the Administrative Agent shall, upon the effectiveness of this Amendment in accordance with Section 12 , be terminated and cease to have any further effect.  The parties hereto acknowledge that notwithstanding the description of the October Amendment as being a Third Amendment to the Pooling Agreement, this Amendment is described as the Second Amendment to the Pooling Agreement (there being no prior “Second Amendment”).

 

16.            Except as expressly amended by this Amendment, the Pooling Agreement is ratified and confirmed in all respects and the terms, provisions and conditions thereof are and shall remain in full force and effect.

 

17.            THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ANY CONFLICT OF LAW PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

 

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18.            This Amendment may be executed in counterparts by the parties hereto, and each such counterpart shall be considered an original and all such counterparts shall constitute one and the same instrument.

 

19.            The provisions of Sections 11.08 , 11.14 and 11.17 of the Series 2000-1 Supplement shall apply hereto, mutatis mutandis , as if set forth in full herein.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, each of the parties hereto have caused this Amendment to be duly executed by their respective officers as of the day and year first above written.

 

 

HUNTSMAN RECEIVABLES FINANCE LLC,
as Company

 

By:	/s/ SEAN DOUGLAS
	Name:  Sean Douglas
	Title:  Vice President and Treasurer

 

 

HUNTSMAN (EUROPE) BVBA,
as Master Servicer

 

By:	/s/ SEAN DOUGLAS
	Name:  Sean Douglas
	Title:  Attorney-in-Fact

 

 

By:
	Name:
	Title:

 

 

BNY FINANCIAL SERVICES PLC
not in its individual capacity but solely as Trustee

 

By:	/s/ ANDREW MCLEOD
	Name:  Andrew McLeod VP
	Title:  Authorized Signatory

 

 

THE BANK OF NEW YORK MELLON,
in its capacity as account bank and securities intermediary

 

By:	/s/ TREVOR BLEWER
	Name:  Trevor Blewer
	Title:  Vice President

 

[Second Amendment to Pooling Agreement Signature Page 1 to 5]

 

 

Consented and agreed to as of the date first written above:

 

JPMORGAN CHASE BANK, N.A.,
as Administrative Agent

 

By:	/s/ CHARLES SIMOND
	Name:  Charles Simond
	Title:  Executive Director

 

 

JPMORGAN CHASE BANK, N.A.,
as Funding Agent

 

By:	/s/ CHARLES SIMOND
	Name:  Charles Simond
	Title:  Executive Director

 

 

JPMORGAN CHASE BANK, N.A.,
as a Series 2000-1 APA Bank

 

By:	/s/ CHARLES SIMOND
	Name:  Charles Simond
	Title:  Executive Director

 

 

CHARIOT FUNDING LLC,
as a Series 2000-1 Conduit Purchaser
By: JPMorgan Chase Bank, N.A.,
as its attorney-in-fact

 

By:	/s/ CHARLES SIMOND
	Name:  Charles Simond
	Title:  Executive Director

 

[Second Amendment to Pooling Agreement Signature Page 2 to 5]

 

 

WACHOVIA CAPITAL MARKETS, LLC,
as Funding Agent

 

By:	/s/ EERO H. MAKI
	Name:  Eero H. Maki
	Title:  Director

 

 

WACHOVIA CAPITAL MARKETS, LLC,
as a Series 2000-1 APA Bank

 

By:	/s/ EERO H. MAKI
	Name:  Eero H. Maki
	Title:  Director

 

 

VARIABLE FUNDING CAPITAL COMPANY, LLC,
as a Series 2000-1 Conduit Purchaser
By: Wachovia Capital Markets, LLC
as its attorney-in-fact

 

By:	/s/ DOUGLAS R. WILSON, SR.
	Name:  Douglas R. Wilson, Sr.
	Title:  Director

 

[Second Amendment to Pooling Agreement Signature Page 3 to 5]

 

 

BARCLAYS BANK PLC,
as Funding Agent

 

By:	/s/ JEFFREY GOLDBERG
	Name:  Jeffrey Goldberg
	Title:  Associate Director

 

 

BARCLAYS BANK PLC,
as a Series 2000-1 APA Bank

 

By:	/s/ JEFFREY GOLDBERG
	Name:  Jeffrey Goldberg
	Title:  Associate Director

 

 

SHEFFIELD RECEIVABLES CORPORATION,
as a Series 2000-1 Conduit Purchaser
By: Barclays Bank PLC,
as its attorney-in-fact

 

By:	/s/ JASON D. MUNCY
	Name:  Jason D. Muncy
	Title:  Associate Director

 

[Second Amendment to Pooling Agreement Signature Page 4 to 5]

 

 

HSBC BANK PLC,
as a Funding Agent

 

By:	/s/ NIGEL BATLEY
	Name:  Nigel Batley
	Title:  Managing Director

 

 

HSBC BANK USA, NATIONAL ASSOCIATION,
as a Series 2000-1 APA Bank

 

By:	/s/ DAVID A. MANDELL
	Name:  David A. Mandell
	Title:  Managing Director

 

 

REGENCY ASSETS LIMITED,
as a Series 2000-1 Conduit Purchaser

 

By:	/s/ MICHAEL WHELAN
	Name:  Michael Whelan
	Title:  Director

 

[Second Amendment to Pooling Agreement Signature Page 5 to 5]

 

 

SCHEDULE VI
to Amendment

 

ANNEX X

 

to

 

Pooling Agreement

 

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ANNEX X
to
Pooling Agreement

 

“ ABR ” shall mean, for any day, a per annum alternate base rate (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day plus 1%, (c) the Federal Funds Effective Rate in effect on such day plus 1 / 2  of 1% and (d) the Eurocurrency Rate for a one month Accrual Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that, for the avoidance of doubt, the Eurocurrency Rate for any day shall be based on the rate appearing with respect to the relevant currency on the Reuters BBA Libor Rates Page 3750 (or on any successor or substitute page of such page) at approximately 11:00 a.m. London time on such day.  If for any reason, the relevant Funding Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Base CD Rate, the Federal Funds Effective Rate or the Eurocurrency Rate or any of them for any reason, including the inability or failure of the relevant Funding Agent to obtain sufficient quotations in accordance with the terms of the definitions thereof, the ABR shall be determined without regard to clause (b), (c)  and/or (d) , (as applicable), of the immediately preceding sentence, as appropriate, until the circumstances giving rise to such inability no longer exist.  Any change in the ABR due to a change in the Prime Rate, the Base CD Rate, the Federal Funds Effective Rate or the Eurocurrency Rate shall be effective on the effective date of such change in the Prime Rate, the Base CD Rate, the Federal Funds Effective Rate or the Eurocurrency Rate, respectively.  The term “ Prime Rate ” shall mean the rate of interest per annum publicly announced from time to time by the relevant Funding Agent as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective on the date such change is publicly announced as being effective.  The term “ Base CD Rate ” shall mean the sum of (a) the product of (i) the Three-Month Secondary CD Rate and (ii) Statutory Reserves and (b) the Assessment Rate.  The term “ Three-Month Secondary CD Rate ” shall mean, for any day, the secondary market rate for three-month certificates of deposit reported as being in effect on such day (or, if such day shall not be a Business Day, the next preceding Business Day) by the Board of Governors through the public information telephone line of the Federal Reserve Bank of New York (which rate will, under the current practices of the Board of Governors, be published in Federal Reserve Statistical Release H.15(519) during the week following such day), or, if such rate shall not be so reported on such day or such next preceding Business Day, the average of the secondary market quotations for three-month certificates of deposit of major money center banks in New York City received at approximately 10:00 a.m. New York City time, on such day (or, if such day shall not be a Business Day, on the next preceding Business Day) by the relevant Funding Agent from three negotiable certificate of deposit dealers in New York City of recognized standing selected by it.

 

“ Accrual Period ” shall mean, for any Series, the period from and including a Distribution Date, or, in the case of the initial Accrual Period for such Series, the date of issuance of such Series, to but excluding the succeeding Distribution Date.

 

“ Accumulation Period ” shall have, with respect to any Outstanding Series, the meaning assigned to such term in the related Supplement.

 

“ Acquired Line of Business ” shall mean any business acquired by an Approved Originator after the Series 2000-1 Issuance Date.

 

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“ Acquired Line of Business Receivables ” shall mean Receivables generated by an Approved Originator arising from an Acquired Line of Business.

 

“ Additional Originator ” shall mean any Originator added as an Approved Originator pursuant to Section 2.09 of the Pooling Agreement after the Initial Issuance Date.

 

“ Adjusted Invested Amount ” shall have, with respect to any Outstanding Series, the meaning assigned to such term in the related Supplement.

 

“ Adjustment Payments ” shall mean the collective reference to payments of Originator Adjustment Payment, Originator Dilution Adjustment Payment or Originator Indemnification Payment, any Contributor Adjustment Payment, Contributor Dilution Adjustment Payment or Contributor Indemnification Payment, and (iii) any other payment made in accordance with Sections 2.05 and 2.06 (or corresponding section) of the applicable Origination Agreement, Sections 2.05(a)  and (b)  of the Pooling Agreement and Section 4.05 of the Servicing Agreement.

 

“ Administrative Agent ” shall mean, with respect to any Series, the Person, if any, so designated in the related Supplement.

 

“ Affiliate ” shall mean, with respect to any specified Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such specified Person.  For purposes of this definition “ control ” of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or otherwise, and the terms “ controlling ” and “ controlled ” have meanings correlative to the foregoing.

 

“ Aged Receivables Ratio ” shall mean, as of the last day of each Settlement Period, the percentage equivalent of a fraction, the numerator of which shall be the sum of (a) the aggregate unpaid balance of Receivables contributed by the Contributor to the Company (and with respect to which the Company has granted the Participation and a security interest to the Trust) that were 61 to 90 days past due and (b) the aggregate amount of Receivables that were charged off as uncollectible prior to the day that is 61 days after its original due date during such Settlement Period, and the denominator of which shall be the aggregate Principal amount of Receivables contributed by the Contributor to the Company (and with respect to which the Company has granted the Participation and a security interest to the Trust) during the third prior Settlement Period (including the Settlement Period ended on such day).

 

“ Aggregate Adjusted Invested Amount ” shall mean, with respect to any date of determination, the sum of the Adjusted Invested Amounts with respect to all Outstanding Series on such date of determination.

 

“ Aggregate Allocated Receivables Amount ” shall mean, with respect to any date of determination, the sum of the Allocated Receivables Amounts with respect to all Outstanding Series on such date of determination.

 

“ Aggregate Daily Collections ” shall mean, with respect to any Business Day, the aggregate amount of all Collections in immediately available funds deposited into the Company Concentration Accounts on such day by 12:30 p.m. London time and available for allocation to different Series.

 

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“ Aggregate Initial Daily Collections ” shall mean, with respect to any Business Day, the aggregate amount of all Collections deposited into the Collection Accounts.

 

“ Aggregate Invested Amount ” shall mean, at any date of determination, the sum of the Invested Amounts with respect to all Outstanding Series on such date of determination.

 

“ Aggregate Obligor Country Overconcentration Amount ” shall mean, on any date of determination, the aggregate Principal Amount of non-Defaulted Receivables due from Obligors in Approved Obligor Countries which, when expressed as a percentage of the Principal Amount of all Eligible Receivables in the Trust at such date of determination, exceeds the Approved Obligor Country Overconcentration Limit.

 

“ Aggregate Obligor Overconcentration Amount ” shall mean, on any date of determination, the Principal Amount of non-Defaulted Receivables due from an Eligible Obligor and with respect to which a Participation has been granted by the Company to the Trust at such date, that when expressed as a percentage of the Principal Amount of all Eligible Receivables in the Trust at such date of determination, exceeds the Obligor Limit set forth in Schedule 3 to the Pooling Agreement under heading (E) “ Obligor Limit ”.

 

“ Aggregate Originator Country Overconcentration Amount ” shall mean, on any date of determination, the aggregate Principal Amount of non-Defaulted Receivables sold by an Approved Originator which, when expressed as a percent of the Principal Amount of all Eligible Receivables in the Trust at such date of determination, exceeds the Approved Originator Country Overconcentration Limit.

 

“ Aggregate Receivables Amount ” shall mean, on any date of determination, without duplication, the aggregate Principal Amount of all Eligible Receivables owned by the Company at the end of the Business Day immediately preceding such date minus (i)  the Aggregate Obligor Overconcentration Amount; (ii) the Aggregate Obligor Country Overconcentration Amount; (iii) the Aggregate Originator Country Overconcentration Amount; (iv) an amount equal to Timely Payment Accruals and Commission Accruals; (v) an amount equal to the Volume Rebate Accrual; (vi) the Potential Offset Amount; and (vii) the Belgian Collection Adjustment Amount.

 

“ Aggregate Target Receivables Amount ” shall mean, on any date of determination, the sum of the Target Receivables Amounts with respect to all Outstanding Series on such date of determination.

 

“ Allocable Charged-Off Amount ” shall have, with respect to any Series, the meaning assigned in Section 3.01(g)(i)(A)  of the Pooling Agreement as modified by any Supplement for such Series.

 

“ Allocable Recoveries Amount ” shall have, with respect to any Series, the meaning assigned in Section 3.01(g)(i)(B)  of the Pooling Agreement as modified by any Supplement for such Series.

 

“ Allocated Receivables Amount ” shall have, with respect to any Outstanding Series, the meaning assigned in the related Supplement for such Outstanding Series.

 

“ Amortization Period ” shall have, with respect to any Outstanding Series, the meaning assigned to such term in the related Supplement for such Outstanding Series.

 

12

 

“ Applicable Insolvency Laws ” shall mean, with respect to any Person, any applicable bankruptcy, insolvency or other similar United States or foreign law now or hereafter in effect.

 

“ Applicable Notice Provisions” shall mean the notice provisions set forth in Section 8.11 (or corresponding section)   of the applicable Origination Agreement.

 

“ Applicants ” shall have the meaning assigned in Section 5.08 of the Pooling Agreement.

 

“ Appropriate Rating ” shall mean (i) the rating required to maintain the existing rating, whether direct or indirect, on each Outstanding Series of Investor Certificates and if no such rating exists for such Series of Investor Certificates then (ii) a rating at a level agreed upon between the Company and the Trustee acting at the direction of the Funding Agent(s).

 

“ Approved Acquired Line of Business ” shall mean each Acquired Line of Business approved by the Funding Agents in accordance with the proviso in the definition of Eligible Receivables, with effect on and after the date of such approval.

 

“ Approved Contract Jurisdiction ” shall mean (i) the jurisdictions set forth in the Receivables Specification and Exception Schedule attached to the Pooling Agreement as Schedule 3 under heading (B) “ Approved Contract Jurisdictions ”, representing jurisdictions the law of which may govern Contracts and (ii) any additional contract jurisdiction added in accordance with Section 2.09 of the Pooling Agreement.

 

“ Approved Currency ” shall mean (i) initially, United States Dollars, Pound Sterling, and Euro and (ii) any additional legal currency added in accordance with Section 2.09 of the Pooling Agreement.

 

“ Approved Obligor Country ” shall mean (i) the countries set forth in the Receivables Specification and Exception Schedule attached to the Pooling Agreement as Schedule 3 under heading (A) “ Approved Obligor Countries ” and (ii) any Obligor Country which may be added pursuant to and in accordance with the provisions of Section 2.09(c)  of the Pooling Agreement.

 

“ Approved Obligor Country Overconcentration Limit ” shall mean, with respect to each Approved Obligor Country the percentage, as set forth in the Receivables Specification and Exception Schedule attached to the Pooling Agreement as Schedule 3 under the heading (D) “ Approved Obligor Country Limit ”, (i) which appears next to the applicable ratings category of the foreign currency rating for such Approved Obligor Country; provided that if the foreign currency, long-term debt ratings given by S&P and Moody’s to any Obligor Country would result in different applicable percentages under Schedule 3 to the Pooling Agreement, the applicable percentage shall be the percentage associated with the lower foreign currency, long-term debt rating, as between S&P’s rating and Moody’s rating, of such Obligor Country or (ii) which is otherwise set forth next to the name of a specified Approved Obligor Country, in each case, such percentage representing with respect to each such country the maximum aggregate percentage of Receivables that may constitute the Trust pool where the related Obligors are residents in such country.

 

“ Approved Originator ” shall mean (i) (A) with respect to the U.S. Originators, Tioxide Americas Inc., Huntsman Propylene Oxide Ltd., Huntsman International Fuels L.P., Huntsman Ethyleneamines Ltd., Huntsman International LLC, Huntsman Advanced Materials Americas Inc. and Huntsman Petrochemical Corporation; and (B) with respect to the European Originators, Huntsman Holland B.V., Tioxide Europe Limited, Huntsman Advanced Materials (Europe) BVBA, Huntsman Surface Sciences UK Ltd., Tioxide Europe S.r.l., Huntsman Surface Sciences Italia S.r.l., Huntsman Patrica

 

13

 

S.r.l., Tioxide Europe S.L., Huntsman Performance Products Spain, S.L., Tioxide Europe S.A.S. and Huntsman Surface Sciences (France) S.A.S.; and (ii) any entity that may be approved as an Additional Originator pursuant to, and in accordance with, the provisions of Section 2.09 of the Pooling Agreement.

 

“ Approved Originator Country Overconcentration Limit ” shall mean, with respect to each country in which an Approved Originator is located, the percentage, as set forth in the Receivables Specification and Exception Schedule attached to the Pooling Agreement as Schedule 3 under heading (F) “ Approved Originator Country Overconcentration Limit ”, which appears next to the name of such country, such percentage representing with respect to each such country the maximum aggregate percentage of Receivables that may constitute the Trust pool where the related Approved Originators are residents in such country.

 

“ Approved Originator Joinder Agreement ” shall mean the agreement in the form of Schedule 3 (or corresponding schedule) attached to the applicable Origination Agreement.

 

“ Authorized Newspaper ” shall mean collectively, the Wall Street Journal, the International Wall Street Journal, the Financial Times (European Edition) of London, England, and solely with respect to Certificates listed on the Luxembourg Stock Exchange, d’Wort of Luxembourg.  If any of such newspapers shall cease to be published, the Master Servicer, the Company (or the Master Servicer on behalf of the Company) or the Trustee shall substitute for it another newspaper in Luxembourg (with respect to d’Wort of Luxembourg) and in Europe (with respect to the International Wall Street Journal and the Financial Times (European Edition) of London, England) and in the United States (with respect to the Wall Street Journal), customarily published at least once a day for at least five (5) days in each calendar week, of general circulation.

 

“ Bankruptcy Code ” shall mean the United States Federal Bankruptcy Code, 11 U.S.C. §§ 101 1330, as amended.

 

“ Belgian Collection Adjustment Amount ” shall mean on any date of determination, the amount (if any) equal to the product of the Principal Amount of non-Defaulted Receivables sold by the Belgian Originator multiplied by the Belgian Collection Adjustment Percentage; provided that no Belgian Collection Adjustment Amount shall apply on and after the date upon which for three (3) consecutive Settlement Periods the amount of Belgian Collections received during each Settlement Period in the Belgian Collection Account exceeeds 95% of the amount of Belgian Collections received during the such Settlement Period.

 

“ Belgian Collection Adjustment Percentage ” shall mean (1) on any date of determination occurring during the nine months immediately after the Series 2000-1 Issuance Date on which the Servicer Guarantor’s corporate credit rating by S&P is less than “B” and the corporate family rating by Moody’s is less than “B2” and (2) on any date of determination occurring nine months after the Series 2000-1 Issuance Date, the amount expressed as a percentage equal to (a) (i) 0.95 multiplied by the amount of Belgian Collections received during the Settlement Period most recently ended minus (ii) the amount of Belgian Collections received during the Settlement Period most recently ended in the Belgian Collection Account divided by (b) the amount of Belgian Collections received during the relevant Settlement Period; provided that if the amount calculated is a negative value, the Belgian Collection Adjustment Percentage shall be an amount equal to zero; provided, further , that

 

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after any date on which the Belgian Collection Adjustment Percentage has been zero, it shall remain zero.

 

“ Belgian Collections ” shall mean Collections received with respect to Receivables originated by the Belgian Originator(s).

 

“ Belgian Collection Accounts ” shall mean the Collection Accounts into which Belgian Collections are to be paid or deposited.

 

“ Belgian Originator ” shall mean any of (i) Huntsman Advanced Materials (Europe) BVBA and (ii) after the Initial Issuance Date, any Approved Originator incorporated in Belgium.

 

“ Belgian Receivables ” shall mean the Receivables originated by a Belgian Originator and sold to Huntsman International, then contributed, transferred, assigned and conveyed to the Company and with respect to which a Participation and security interest were granted by the Company to the Trust.

 

“ Belgian Receivables Purchase Agreement ” means the Belgian Receivables Purchase Agreement dated November 13, 2008, between the Belgian Originators and the Contributor as amended, supplemented or otherwise modified from time to time in accordance with the Transaction Documents.

 

“ Board ” means, with respect to any entity, such entity’s board of directors (in the case of a corporation), board of managers (in the case of a limited liability company) or equivalent governing body in other cases.

 

“ Board of Governors ” shall mean the Board of Governors of the Federal Reserve System of the United States of America.

 

“ Book-Entry Certificates ” shall mean Certificates evidencing a beneficial interest in the Investor Certificates, ownership and transfers of which shall be made through book entries by a Clearing Agency as described in Section 5.12 of the Pooling Agreement; provided, however, that after the occurrence of a condition whereupon book-entry registration and transfer are no longer permitted and Definitive Certificates are issued to the Certificate Book-Entry Holders, such Investor Certificates shall no longer be “Book-Entry Certificates.

 

“ Business Day ” shall mean any day other than (i) a Saturday or a Sunday and (ii) any other day on which commercial banking institutions or trust companies in (A) the State of New York, (B) London, England, or (C) the city where the Corporate Trust Office of the Trustee is located, which on the Effective Date shall be Dublin, Ireland and which, in each case, are authorized or obligated by law, executive order or governmental decree to be closed; provided that, when used in connection with the calculation of Certificate Rates which are determined by reference to the One-Month LIBOR, “ Business Day ” means any business day banks are open for dealings in dollar deposits in the London interbank market; and further provided that when used in connection with the calculation of Certificate Rates which are determined by reference to the One-Month EURIBOR, “ Business Day ” means any business day on which commercial banks are open for business in London, Amsterdam and Luxembourg and on which the Trans-European Automated Real Time Gross Settlement Express Transfer (“ TARGET ”) payment system is operating.

 

15

 

“ Business Day Received ” shall mean, except as otherwise set forth in the applicable Supplement, with respect to funds deposited in a Collection Account, such day of deposit.

 

“ Capital Stock ” means (i) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of common stock and preferred stock of such Person and (ii) with respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person.

 

“ Certificate ” shall mean any certificate issued pursuant to the Pooling Agreement or any Supplement.

 

“ Certificate Book-Entry Holder ” shall mean, with respect to a Book-Entry Certificate, the Person who is listed on the books of the Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency, as the beneficial owner of such Book-Entry Certificate (directly or as an indirect participant, in accordance with the rules of such Clearing Agency).

 

“ Certificate of Formation ” shall mean the certificate of formation with respect to the Company filed with the Secretary of State of Delaware pursuant to Section 18-201 of the Delaware Limited Liability Company Act, and any and all amendments thereto and restatements thereof.

 

“ Certificate Rate ” shall mean, with respect to any Series and Class of Investor Certificates, the percentage interest rate (or formula on the basis of which such interest rate shall be determined) stated in the applicable Supplement.

 

“ Certificate Register ” shall mean the register maintained pursuant to Section 5.03(a)  of the Pooling Agreement providing for the registration of the Investor Certificates and transfers and exchanges thereof.

 

“ Change of Control ” shall mean:

 

(a)            any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) (“ Person ” or “ Group ”), other than Mr. Jon M. Huntsman, his spouse, direct descendants, an entity controlled by any of the foregoing and/or by a trust of the type described hereafter, and/or a trust for the benefit of any of the foregoing (the “ Huntsman Group ”) or GOP, is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be deemed to have “beneficial ownership” of all securities that such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time) (“ Beneficial Owner ”), directly or indirectly, of 35% or more of the then outstanding voting capital stock of Huntsman International other than in a transaction having the approval of the Board of the Parent Company, or, if there is no Parent Company, of the Board of Huntsman International; provided , that in each case, at least a majority of the members of such approving Board are Continuing Directors of such entity; or

 

(b)            Continuing Directors cease to constitute at least a majority of the members of the Board of Huntsman International or the Board of any Parent Company; or

 

(c)            (1) any Person or Group, other than the Huntsman Group or GOP, is or becomes the Beneficial Owner, directly or indirectly, of 35% or more of the then outstanding voting capital

 

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stock of Huntsman International and (2) the long-term corporate credit rating of Huntsman International has been reduced to “B-” or below by S&P or “B3” or below by Moody’s as a result thereof; or

 

(d)            the acquisition, directly or indirectly, of 35% or more of the then outstanding voting capital stock of the Parent Company by Hexion Specialty Chemicals Inc. or any of its Affiliates.

 

“ Charged-Off Receivables ” shall mean, with respect to any Settlement Period, all Receivables which, in accordance with the Policies have or should have been written off during such Settlement Period as uncollectible, including the Receivables of any Obligor which becomes the subject of any voluntary or involuntary bankruptcy proceeding.

 

“ Class ” shall mean, with respect to any Series, any one of the classes of Investor Certificates of that Series as specified in the related Supplement.

 

“ Clean Up Call Repurchase Price ” shall have the meaning assigned in Section 9.02(a)  of the Pooling Agreement.

 

“ Clearing Agency ” shall mean each organization registered as a “ clearing agency ” pursuant to Section 17A of the Exchange Act.

 

“ Clearing Agency Participant ” shall mean a broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects transfers and pledges of securities deposited with such Clearing Agency.

 

“ Code ” shall mean the United States Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder from time to time.

 

“ Collection Account Agreements ” shall mean (i) on the Effective Date, each of the Collection Account Agreements, dated as of December 21, 2000 (or thereabout, between the Company and the Collection Account Bank, and (ii) after the Effective Date, any other collection account agreement entered into by the Company and an Eligible Institution, in each case in the form reasonably satisfactory to each Funding Agent.

 

“ Collection Account Bank ” shall mean any bank holding a Collection Account or a Master Collection Account which will be an Eligible Institution appointed by the Company.

 

“ Collection Accounts ” shall mean the accounts established and maintained by the Company in accordance with the Collection Account Agreements and into which Collections shall be deposited.

 

“ Collections ” shall mean all collections and all amounts received in respect of the Receivables in which a Participation has been granted to the Trust and in which a security interest was granted in favor of the Trustee for the benefit of the Certificateholders, including Recoveries, Adjustment Payments, indemnification payments made by the Master Servicer, and payments received in respect of Dilution Adjustments, together with all collections received in respect of the Related Property in the form of cash, checks, wire transfers or any other form of cash payment, and all proceeds of Receivables and collections thereof (including collections evidenced by an account, note, instrument, letter of credit, security, contract, security agreement, chattel paper, general intangible or other evidence of indebtedness or security), whatever is received upon the sale, exchange, collection or

 

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other disposition of, or any indemnity, warranty or guaranty payable in respect of, the foregoing and all “ proceeds ” of the Receivables as defined in Section 9-102(a)(64) of the applicable UCC.

 

“ Commission ” shall means a payment made to a third party vendor or distributor who on-sells products to Obligors.

 

“ Commission Accruals ” shall mean, with respect to any date of determination, for the purposes of determining the Aggregate Receivables Amount, the aggregate amount of outstanding Commission balances as of the Business Day immediately preceding the date of such determination.

 

“ Company ” shall mean Huntsman Receivables Finance LLC, a limited liability company organized under the laws of the State of Delaware.

 

“ Company Concentration Accounts ” shall mean the accounts which are established by the Trustee pursuant to Section 3.01(a)(i)  of the Pooling Agreement and set forth in Schedule 1 to the Pooling Agreement.

 

“ Company Exchange ” shall have the meaning assigned in Section 5.11(a)  of the Pooling Agreement.

 

“ Company Obligations ” shall mean all obligations owed by the Company for commissions, fees, expenses, indemnifications, and all other obligations and liabilities of every nature of the Company, from time to time owed to the Trustee, each Funding Agent and the Investor Certificateholders, whether direct or indirect, absolute or contingent, due or to become due, or now existing or thereafter incurred, whether on account of commissions, amounts owed and payable, incurred fees, indemnities, out of pocket costs or expenses (including all reasonable fees and disbursements of counsel) or otherwise which arise under any Transaction Document.

 

“ Company Receipts Accounts ” shall mean the accounts established and maintained by the Company pursuant to Section 3.01(c)  of the Pooling Agreement and set forth in Schedule 1 to the Pooling Agreement, which are in existence from time to time and into which amounts due to the Company under the Pooling Agreement and any Supplement are deposited from time to time.

 

“ Company Subordinated Obligations ” shall mean any Company Obligation or other liability designated as such in any Pooling and Servicing Agreement, each of which payment obligations and other liabilities shall (i) be subordinated and subject to the prior payment in full of all Company Unsubordinated Obligations then due, (ii) be made solely from funds available to the Company that are not required to be applied to Company Unsubordinated Obligations then due and (iii) not constitute a general recourse claim against the Company, but only a claim against the Company to the extent of funds available to the Company after satisfying all Company Unsubordinated Obligations then due.

 

“ Company Unsubordinated Obligations ” shall mean all Company Obligations and other liabilities of the Company under any Pooling and Servicing Agreement that are not designated as Company Subordinated Obligations.

 

“ Confidential Information ” shall have the meaning assigned to such term in Section 8.16 of the Contribution Agreement.

 

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“ Continuing Directors ” shall mean, as of any date and with respect to any entity, the collective reference to:

 

(a)            all members of the Board of such entity who have held office continuously since the date of this Agreement, and

 

(b)            all members of the Board of such entity who assumed office after the date of this Agreement and whose appointment or nomination for election by the holders of voting capital stock of such entity was approved by a vote of at least 50% of the Continuing Directors in office immediately prior to such appointment or nomination or by the Huntsman Group.

 

“ Contract ” shall mean an agreement between an Originator and an Obligor (including but not limited to, a written contract, an invoice, a purchase order or an open account) pursuant to or under which such Obligor shall be obligated to make payments in respect of any Receivable or any Related Property to such Originator from time to time.

 

“ Contractual Obligation ” shall mean, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

 

“ Contribution Agreement ” shall mean the Amended and Restated Contribution Agreement dated as of April 18, 2006, between Huntsman International, as contributor, and the Company, as amended, supplemented or otherwise modified from time to time in accordance with the Transaction Documents.

 

“ Contribution Date ” shall have the meaning set forth in Section 2.01(a)(i)  of the Contribution Agreement.

 

“ Contribution Value ” shall have the meaning set forth in Section 2.02 of the Contribution Agreement.

 

“ Contributor ” shall mean Huntsman International.

 

“ Contributor Adjustment Payment ” shall have the meaning assigned to such term in Section 2.06(a)  of the Contribution Agreement.

 

“ Contributor Dilution Adjustment Payment ” shall have the meaning assigned to such term in Section 2.05 of the Contribution Agreement.

 

“ Contributor Indemnification Payment ” shall have the meaning assigned to such term in Section 2.06(b)  of the Contribution Agreement.

 

“ Corporate Trust Office ” shall mean the principal office of the Trustee at which at any particular time its corporate trust business shall be administered, which office at the Effective Date through the Transferred Business Effective Date was located at JPMorgan House, International Financial Services Centre, Dublin 1, Ireland and on and after the Transferred Business Effective Date is located at 70 Sir John Rogerson’s Quay, Dublin 2, Ireland.

 

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“ Credit Enhancement ” shall have the meaning ascribed to such term in the Asset Purchase Agreement for the respective Series.

 

“ Credit Enhancer ” shall mean, with respect to any Series, that Person, if any, designated as such in the applicable Supplement.

 

“ CT Corporation ” shall mean CT Corporation Inc.

 

“ Daily Report ” shall mean a report prepared by the Master Servicer pursuant to Section 4.01 of the Servicing Agreement on each Business Day, substantially in the form of Exhibit B attached to the Pooling Agreement.

 

“ Days Sales Outstanding ” shall mean, as of any Settlement Report Date and continuing until (but not including) the next Settlement Report Date, the number of days equal to the product of (i) 91 and (ii) the amount obtained by dividing (A) the aggregate Principal Amount of Receivables as of the last day of the Settlement Period immediately preceding such earlier Settlement Report Date, by (B) the aggregate Principal Amount of Receivables contributed by the Contributor to the Company (and with respect to which thereafter the Company has granted the Participation to the Trust and a security interest in favor of the Trustee for the benefit of the Certificateholders) for the three Settlement Periods immediately preceding such earlier Settlement Report Date.

 

“ Defaulted Receivable ” shall mean any Eligible Receivable (a) which is unpaid in whole or in part (other than as a result of a Dilution Adjustment) for more than sixty (60) days after its original due date or (b) which is a Charged-Off Receivable prior to sixty (60) days after the original due date.

 

“ Definitive Certificates ” shall have the meaning assigned in Section 5.12 of the Pooling Agreement.

 

“ Delinquency Ratio ” shall mean, as of the last day of each Settlement Period, the percentage equivalent of a fraction, the numerator of which shall be the aggregate unpaid balance of Receivables contributed by the Contributor to the Company (and with respect to which the Company has granted a Participation and a security interest to the Trust) that were thirty one (31) to sixty (60) days past due during such Settlement Period, and the denominator of which shall be the aggregate Principal Amount of Receivables contributed by the Contributor to the Company (and, in each case, the Company has granted a Participation and a security interest to the Trust) during the second prior Settlement Period (including the Settlement Period ended on such day).

 

“ Depository ” shall mean, with respect to any Series, the Clearing Agency designated as the “ Depository ” in the related Supplement.

 

“ Depository Agreement ” shall mean, with respect to any Series, an agreement among the Company, the Trustee and a Clearing Agency, in a form reasonably satisfactory to the Trustee, and the Company.

 

“ Depository Participant ” shall mean a broker, dealer, bank, other financial institution or other Person for whom from time to time the Depository effects book entry transfers and pledges of securities deposited with the Depository.

 

“ Designated Line of Business ” shall mean any line of business which the Master Servicer can identify by means of product, ledger, code or other means of identification so that Receivables

 

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originated with respect to such Designated Line of Business are identifiable and distinguished from all other Receivables of the relevant Originator or Originators.

 

“ Dilution Adjustment ” shall mean any payment adjustments (including payment adjustments arising as a result of any reconciliation) of any Eligible Receivables, and the amount of any other reduction of any payment under any Receivable, in each case granted or made by an Originator to the related Obligor; provided , however , that a “ Dilution Adjustment ” shall not include (1) any Collection on a Receivable or Charged-Off Receivable or (2) any Timely Payment Discount, Commission or any Volume Rebate for which a reserve is maintained to account for any potential offset; provided , further, that for purposes of determining the Dilution Ratio, with respect to Dilution Adjustments relating to invoices where the entire invoice balance has been cancelled or credited (each referred to as “credited”) and a rebilled invoice subsequently issued for the same item (together called “credit and re-bills”), the Dilution Adjustment shall include: (i) the net difference (only if a positive value) between the original invoice amount and the subsequent rebilled amount so long as the rebilled invoice is issued within 5 Business Days of the original invoice being credited, which was credited in its entirety or (ii) the entire amount of the cancelled or credited invoice should the subsequent rebilled invoice be issued after 5 Business Days of the original invoice being credited in its entirety. For credit and re-bills in which the credit and re-bill occur in separate Settlement Periods, the amount of the Dilution Adjustment, as calculated above will be listed as occurring in the Settlement Period of the original invoice date.

 

“ Dilution Horizon ” shall mean in relation to any Receivable the number of days from the date on which such Receivable was created to the date on which a Dilution Adjustment with respect to such Receivable is issued by the Originator. Dilution Horizon relating to invoices where the entire invoice balance has been cancelled or credited and a rebilled invoice subsequently issued for the same item (together called “credit and re-bills”) shall mean the number of days from the date on which the invoice reflecting such Receivable was first created to the date of the re-billed invoice.

 

“ Dilution Horizon Factor ” shall mean a fraction, the numerator of which is the aggregate weighted average Dilution Horizon of the Originators (based upon the Dilution Adjustment of the selected Receivables) for such period. “ Dilution Horizon Factor ” shall be calculated by the Master Servicer each June and December by selecting a random sample of 50 Dilution Adjustments per each Originator over the preceding three months, with the exception of Huntsman Petrochemical Corporation and Huntsman Holland B.V. in which case the random sample shall include 100 Dilution Adjustments created during such period.  The Master Servicer will prepare a table by originator for the Funding Agents which will include for each Dilution Adjustment the original invoice date, invoice amount, Obligor, amount of the credit or net from credit and re-bill, if applicable (see Dilution Adjustment), and a description of each Dilution Adjustment.  A weighted average Dilution Horizon per Originator in days will be computed therefrom based on the amount of Dilution Adjustment per item and the Dilution Horizon per item.   A weighted average for the program will be computed therefrom by weighting the weighted average Dilution Horizon per Originator by the average amount of Dilution Adjustments by originator over the preceding three months.  The denominator for “ Dilution Horizon Factor ” shall be 30; it being understood, that if the required sample size of Dilution Adjustments is not available, the Master Servicer will compute the preceding calculations on such other amount available; it being further understood, that the random sample shall not include any adjustments resulting from any Timely Payment Discount, Commission or any Volume Rebate for which a reserve is maintained to account for any potential offset.

 

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“ Dilution Period ” shall mean, as of any Settlement Report Date and continuing until (but not including) the next Settlement Report Date, the quotient of (i) the product of (A) the aggregate Principal Amount of the Receivables that were contributed by the Contributor to the Company (and in which thereafter a Participation and security interest were granted by the Company to the Trust), as applicable during the Settlement Period immediately preceding such earlier Settlement Report Date and (B) the Dilution Horizon Factor as of such Settlement Report Date and (ii) the Aggregate Receivables Amount as of the last day of the Settlement Period immediately preceding such earlier Settlement Report Date.

 

“ Dilution Ratio ” shall mean, as of the last day of each Settlement Period, an amount (expressed as a percentage) equal to the aggregate amount of Dilution Adjustments made during such Settlement Period divided by the aggregate Principal Amount of Receivables that were contributed by the Contributor to the Company (and thereafter a Participation and security interest were granted by the Company to the Trust) during the immediately preceding Settlement Period (including the Settlement Period ended on such day).

 

“ Discounted Percentage ” shall mean (i) with respect to the calculation of the Contribution Value attributed to the Receivables and the other Receivable Assets related thereto to be contributed by the Contributor to the Company, a percentage agreed upon by the Contributor, and consented to by each Funding Agent (such consent not to be unreasonably withheld) from time to time that reflects, among other factors, the historical rate at which Receivables are charged off in accordance with the Policies and (ii) with respect to the calculation of the related Contribution Value or Originator Purchase Price, a percentage agreed upon by the related Originator and the Contributor and consented to by each Funding Agent (such consent not to be unreasonably withheld) from time to time that reflects, among other factors, the historical rate at which Receivables are charged off in accordance with the Policies of the related Originator.

 

“ Distribution Date ” shall mean, (i) except as otherwise set forth in the applicable Supplement and in clause (ii)  hereof, the 15th day of the month, or if such 15th day is not a Business Day, the next succeeding Business Day.

 

“ Dollars ”, “ United States Dollars ”, “ U.S. Dollars ” and “ $ ” shall mean the legal currency of the United States of America.

 

“ Dutch Originator ” shall mean any of (i) Huntsman Holland B.V. and (ii) after the Initial Issuance Date, any Approved Originator incorporated in the Netherlands.

 

“ Dutch Receivables ” shall mean the Receivables originated by a Dutch Originator and sold to Huntsman International, then contributed, transferred, assigned and conveyed to the Company and with respect to which a Participation and security interest were granted by the Company to the Trust.

 

“ Dutch Receivables Purchase Agreement ” means the Dutch Receivables Purchase Agreement, between the Dutch Originators and the Contributor as amended, supplemented or otherwise modified from time to time in accordance with the Transaction Documents, and attached as Attachment 1 to the Omnibus Receivables Purchase Agreement.

 

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