<PAGE>
EXHIBIT 10.25
RECEIVABLES PURCHASE AGREEMENT
among
CITGO FUNDING COMPANY, L.L.C.,
as Seller
CITGO PETROLEUM CORPORATION,
as Servicer
ASSET ONE SECURITIZATION, LLC,
as Issuer
and
SOCIETE GENERALE,
as Agent
Dated as of February 28, 2003
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TABLE OF CONTENTS
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PAGE
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ARTICLE I.
AMOUNTS AND TERMS OF THE
PURCHASES........................................................
1
Section 1.1. Purchase
Facility................................................................
1
Section 1.2. Making
Purchases.................................................................
1
Section 1.3. Purchased
Interest
Computation...................................................
3
Section 1.4. Settlement
Procedures............................................................
3
Section 1.5.
Fees.............................................................................
6
Section 1.6. Payments
and Computations,
Etc................................................... 7
Section 1.7. Dividing
or Combining Portions of the Capital of the Purchased
Interest.......... 7
Section
1.8. Increased
Costs..................................................................
7
Section 1.9.
Requirements of
Law..............................................................
8
Section 1.10. Inability to
Determine Eurodollar
Rate........................................... 9
ARTICLE II.
REPRESENTATIONS AND WARRANTIES; COVENANTS; TERMINATION
EVENTS............................. 10
Section 2.1.
Representations and Warranties;
Covenants........................................ 10
Section 2.2.
Termination
Events...............................................................
10
ARTICLE III.
INDEMNIFICATION...........................................................................
10
Section 3.1.
Indemnities by the
Seller........................................................
10
Section 3.2.
Indemnification by the
Servicer..................................................
12
ARTICLE IV.
ADMINISTRATION AND
COLLECTIONS............................................................
13
Section 4.1.
Appointment of
Servicer..........................................................
13
Section 4.2. Duties of
Servicer...............................................................
14
Section 4.3. Lock-Box
Arrangements............................................................
15
Section 4.4.
Enforcement
Rights...............................................................
15
Section 4.5.
Responsibilities of the Originator; Assignment of Rights Under
Purchase
and Sale
Agreement...............................................................
16
Section 4.6. Servicing
Fee....................................................................
17
ARTICLE V.
MISCELLANEOUS.............................................................................
17
Section 5.1.
Amendments,
Etc..................................................................
17
Section 5.2. Notices,
Etc.....................................................................
17
Section 5.3.
Assignability....................................................................
18
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Section 5.4. Costs,
Expenses and
Taxes........................................................
18
Section 5.5. No
Proceedings; Limitation on
Payments........................................... 19
Section 5.6.
Confidentiality..................................................................
19
Section 5.7. GOVERNING
LAW AND
JURISDICTION...................................................
19
Section 5.8. Execution in
Counterparts........................................................
20
Section 5.9.
Termination; Survival of
Termination.............................................
20
Section 5.10. WAIVER OF JURY
TRIAL.............................................................
20
Section 5.11. Entire
Agreement.................................................................
20
Section 5.12.
Headings.........................................................................
21
Section 5.13. Issuer's
Liabilities.............................................................
21
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EXHIBIT I -
DEFINITIONS.....................................................................................
I-1
EXHIBIT II - CONDITIONS OF
PURCHASES........................................................................
II-1
EXHIBIT III - REPRESENTATIONS AND
WARRANTIES................................................................
III-1
EXHIBIT IV -
COVENANTS......................................................................................
IV-1
EXHIBIT V - TERMINATION
EVENTS..............................................................................
V-1
EXHIBIT VI - DIRECT DILUTION
ITEMS..........................................................................
VI-1
EXHIBIT VII - SUPPLEMENTAL PERFECTION
REPRESENTATIONS,
WARRANTIES AND
COVENANTS......................................................................
VII-1
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SCHEDULE I - CREDIT AND COLLECTION
POLICY
SCHEDULE II - LOCK-BOX BANKS AND LOCK-BOX
ACCOUNTS
SCHEDULE III - TRADE NAMES
SCHEDULE IV - SPECIAL CONCENTRATION
PERCENTAGES
SCHEDULE V - DESCRIPTION OF RECEIVABLES
SCHEDULE VI - LIST OF OFFICES WHERE RECORDS
CONCERNING RECEIVABLES
ARE KEPT
ANNEX A - FORM OF NOTICE OF REQUEST TO
INCREASE PURCHASED INTEREST
ANNEX B - FORM OF NOTICE OF REDUCTION OF
PURCHASED INTEREST
ANNEX C - FORM OF LOCK-BOX AGREEMENT
ANNEX D-1 - FORM OF INTERIM RECEIVABLES
REPORT
ANNEX D-2 - FORM OF MONTHLY RECEIVABLES
REPORT
ANNEX E - FORM OF GENERAL CORPORATE
OPINION
ANNEX F - FORM OF ENFORCEABILITY AND
PERFECTION OPINION
ANNEX G - FORM OF TRUE SALE AND
NONCONSOLIDATION OPINION
ANNEX H - FORM OF LLC AGREEMENT OPINION
ANNEX I - FORM OF CHOICE OF LAW OPINION
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<PAGE>
RECEIVABLES PURCHASE AGREEMENT
This RECEIVABLES PURCHASE AGREEMENT (this "Agreement") is
entered into as of February 28, 2003 among
CITGO FUNDING COMPANY, L.L.C. a
limited liability company, as seller (the
"Seller"), CITGO PETROLEUM
CORPORATION, a Delaware corporation, as
initial servicer (in such capacity,
together with its successors and permitted
assigns in such capacity, the
"Servicer"), ASSET ONE SECURITIZATION, LLC,
a Delaware corporation (together
with its successors and permitted assigns,
the "Issuer"), and SOCIETE GENERALE,
a banking corporation organized under the
laws of France, as agent (in such
capacity, together with its successors and
assigns in such capacity, the
"Agent") for the Issuer pursuant to an
agreement between the Issuer and the
Agent.
PRELIMINARY STATEMENTS. Certain terms that are capitalized and
used throughout this Agreement are defined
in Exhibit I to this Agreement.
References in the Exhibits hereto to "the
Agreement" refer to this Agreement, as
amended, modified or supplemented from time
to time.
The Seller desires to sell, transfer and assign an undivided
variable percentage interest in a pool of
receivables, and the Issuer may, from
time to time, in its sole discretion
acquire such undivided variable percentage
interest, as such percentage interest shall
be adjusted from time to time based
upon, in part, reinvestment payments which
are made by the Issuer and additional
incremental payments made to the
Seller.
In consideration of the mutual agreements, provisions and
covenants contained herein, the parties
hereto agree as follows:
ARTICLE I.
AMOUNTS AND TERMS OF THE PURCHASES
Section 1.1 Purchase
Facility. (a) On the terms and conditions
hereinafter set forth, the Issuer agrees to
purchase and make reinvestments in
the Purchased Interest from the Seller from
time to time during the period from
the date hereof to the Facility Termination
Date. Under no circumstances shall
the Issuer make any such purchase or
reinvestment if (i) after giving effect to
such purchase or reinvestment the aggregate
outstanding Capital of the Purchased
Interest would exceed the Purchase Limit or
(ii) as a result of the making of
such purchase or reinvestment, the
Purchased Interest would exceed 100%. Nothing
in this Agreement shall be deemed to be or
construed as a commitment by the
Issuer to purchase or reinvest in the
Purchased Interest.
(b) The Seller
may, upon at least five Business Days' notice to
the Agent, terminate the purchase facility
provided in this Section 1.1 in whole
or, from time to time, irrevocably reduce
in part the unused portion of the
Purchase Limit; provided that each partial
reduction shall be in the amount of
at least $10,000,000 or an integral
multiple of $1,000,000 in excess thereof.
Section 1.2 Making
Purchases. (a) Each purchase (but not
reinvestments) of undivided ownership
interests with regard to the Purchased
Interest hereunder, upon the Seller's
irrevocable written notice in
substantially the form of Annex A delivered
to the Agent in
<PAGE>
accordance with Section 5.2 (which notice
must be received by the Agent prior to
11:00 a.m., New York City time) at least
two Business Days prior to the
requested purchase date, which notice shall
specify (A) the amount requested to
be paid to the Seller (such amount, which
shall not be less than $5,000,000 and
shall be in integral multiples of $250,000,
being the "Capital" relating to the
undivided ownership interest then being
purchased), (B) the date of such
purchase (which shall be a Business Day)
and (C) the pro forma calculation of
the Purchased Interest after giving effect
to the increase in Capital and (D)
the duration of the initial Fixed Period(s)
for such purchase. The Agent shall
select the duration of such initial Fixed
Period(s), and each subsequent Fixed
Period in its sole discretion; provided
that the Agent shall use reasonable
efforts, taking into account market
conditions, to accommodate Seller's
preference.
(b) On the
date of each purchase (but not reinvestment) of
undivided ownership interests with regard
to the Purchased Interest hereunder,
the Issuer shall, upon satisfaction of the
applicable conditions set forth in
Exhibit II hereto, make available to the
Seller in same day funds, at Bank of
New York, account # 8900126485, ABA #
021000018 an amount equal to the Capital
relating to the undivided ownership
interest then being purchased.
(c) Effective
on the date of each purchase pursuant to this
Section 1.2 and each reinvestment pursuant
to Section 1.4, the Seller hereby
sells and assigns to the Issuer an
undivided percentage ownership interest in
(i) each Receivable then existing, (ii) all
Related Security with respect to
such Receivables, and (iii) Collections
with respect to, and other proceeds of,
such Receivables and Related Security.
(d) To secure
all of the Seller's obligations (monetary or
otherwise) under this Agreement and the
other Transaction Documents to which it
is a party, whether now or hereafter
existing or arising, due or to become due,
direct or indirect, absolute or contingent,
the Seller hereby grants to the
Issuer a security interest in all of the
Seller's right, title and interest
(including without limitation any undivided
interest of the Seller) in, to and
under all of the following, whether now or
hereafter owned, existing or arising
(A) all Receivables, (B) all Related
Security with respect to such Receivables,
(C) all Collections with respect to such
Receivables, (D) the Lock Box Accounts
and all amounts relating to Receivables on
deposit therein and all certificates
and instruments, if any, from time to time
evidencing such Lock Box Accounts and
amounts relating to Receivables on deposit
therein, and (E) all proceeds of, and
all amounts received or receivable under
any or all of, the foregoing. The
Issuer shall have, with respect to the
property described in this Section
1.2(d), and in addition to all the other
rights and remedies available to the
Issuer, all the rights and remedies of a
secured party under any applicable UCC.
Notwithstanding anything to the contrary
contained herein or in any other
Transaction Document, the Seller's interest
in the foregoing is expressly
subordinated in all respects to the payment
of the Capital, the Discount on the
Purchased Interest, all fees and all other
amounts payable by Seller hereunder
and under other Transaction Documents to
Issuer, the Agent, the Affected Persons
and all Indemnified Parties. In connection
with the grant of the transfer of
ownership of those assets set forth in
Section 1.2(c) or the security interest
in the assets set forth in this Section
1.2(d) by signing this Agreement in the
space provided, the Seller hereby
authorizes the filing of, as applicable, UCC
financing statements in all necessary
jurisdictions.
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Section 1.3 Purchased
Interest Computation. The Purchased
Interest shall be initially computed on the
date of the initial purchase
hereunder. Thereafter until the Termination
Date, the Purchased Interest shall
be automatically recomputed (or deemed to
be recomputed) on each Business Day
other than a Termination Day. From and
after the occurrence of any Termination
Day, the Purchased Interest (and the
percentage of Collections represented by
the Purchased Interest) shall (until the
event(s) giving rise to such
Termination Day are satisfied or waived by
the Agent) be deemed to be 100%. With
respect to each calculation of the
Purchased Interest, the Discount Reserve, the
Required Loss Reserve, the Required
Dilution Reserve and the Fee Reserve used in
such calculation shall be measured using
the information reported in the most
recent Interim Receivables Report or
Monthly Receivables Report, as applicable.
The Purchased Interest shall become zero
when the Capital thereof and Discount
thereon shall have been paid in full, all
the amounts owed by the Seller
hereunder to the Issuer, the Agent, and any
other Indemnified Party or Affected
Person, are paid in full and the Servicer
shall have received all accrued and
unpaid Servicing Fees.
Section 1.4 Settlement
Procedures. (a) Collection of the
Receivables shall be administered by the
Servicer in accordance with the terms
of this Agreement. All Collections of
Receivables shall be remitted on a daily
basis to the Lock-Box Accounts. All amounts
deposited to a Lock-Box Account
shall be identified as Collections of
Receivables and collections of Excluded
Receivables ("Excluded Receivables
Collections"). All Excluded Receivables
Collections shall be removed from each
Lock-Box Account within one (1) Business
Day of deposit thereof and remitted to the
Originator pursuant to Section
4.2(b).
(b) The
Servicer shall, on each day on which Collections of
Receivables are received (or deemed
received) by the Seller or Servicer:
(i) set aside
and hold in trust (and, at the request of
the Agent, segregate by depositing into a separate account approved
by
the Agent) for the Issuer, the Agent, the Affected Persons and
the
Indemnified Parties, as applicable, out of the percentage of
such
Collections represented by the Purchased Interest an amount equal
to
(A) first, the Discount accrued through such day for each Portion
of
Capital and not previously set aside; (B) second, to the extent
funds
are available therefor, an amount equal to the Program Fees
accrued
through such day for the Purchased Interest and not previously
set
aside; (C) third, to the extent funds are available therefor, an
amount
equal to the Servicing Fee accrued through such day for the
Purchased
Interest and not previously set aside; and (D) if such day is a
Termination Day, fourth, all other amounts (other than Capital)
payable
to the Issuer, the Agent, and any other Affected Person or
Indemnified
Party;
(ii)
subject to Section 1.4(f), if such day is not a
Termination Day, remit to the Seller, on behalf of the Issuer,
the
remainder of all such Collections that were not set aside pursuant
to
paragraph (i) above; such Collections shall be automatically
reinvested
in Receivables, and in the Related Security and Collections and
other
proceeds with respect thereto, and the Purchased Interest shall
be
automatically recomputed pursuant to Section 1.3; provided,
however,
that if the Purchased Interest would exceed 100%, then the
Servicer
shall not reinvest but shall set aside and hold in trust for the
Issuer
(and shall, at the request of the Agent, segregate in a
separate
account approved by the Agent) a
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portion of such Collections that, together with the other
Collections
set aside pursuant to this paragraph, shall equal the amount
necessary
to reduce the Purchased Interest to 100%;
(iii) if
such day is a Termination Day, set aside,
segregate and hold in trust (and shall at the request of the
Agent,
segregate in a separate account approved by the Agent) for the
Issuer
all Collections less the amount set aside pursuant to paragraph
(i)
above; provided that if amounts are set aside and held in trust, on
any
Termination Day of the type described in clause (a) of the
definition
of "Termination Day", and on such day or thereafter, the conditions
set
forth in Section 2 of Exhibit II are satisfied or are waived by
the
Agent, such previously set aside amounts shall be reinvested in
accordance with the preceding paragraph (ii) on the day of such
subsequent satisfaction or waiver of conditions; and
(iv)
during such times as amounts are required to be
reinvested in accordance with the foregoing paragraph (ii) or
the
proviso to
paragraph (iii), release to the Seller within one (1)
Business Day (subject to Section 1.4(f)) for its own account
any
Collections in excess of (x) such amounts, (y) the amounts that
are
required to be set aside pursuant to paragraph (i) above, the
proviso
to paragraph (ii) above and paragraph (iii) above and (z) all
reasonable and appropriate out-of-pocket costs and expenses of
the
Servicer of servicing, collecting and administering the
Receivables.
(c) The
Servicer shall deposit into the Administration Account (or
such other account designated by the
Agent), (i) on the last day of each
Settlement Period relating to a Portion of
Capital, Collections held for the
Issuer pursuant to Section 1.4(b)(i)(A) and
Section 1.4(f), if applicable, with
respect to such Portion of Capital and the
lesser of (x) the amount of
Collections then held for the Issuer
pursuant to Sections 1.4(b)(ii) and
1.4(b)(iii) and (y) the sum of such Portion
of Capital and any amounts due under
this Agreement other than Capital,
Discount, Program Fees or Servicer Fees and
(ii) on each Settlement Date, Collections
held for the Issuer pursuant to
clauses (B) and (C) of Section 1.4(b)(i),
provided that so long as CITGO is the
Servicer and the Agent has not requested
the Servicer to deposit into a separate
account those Collections set aside
pursuant to Section 1.4(b)(i), the Servicing
Fee may be retained by the Servicer rather
than deposited into the
Administration Account.
(d) Upon
receipt of funds deposited into the Administration
Account pursuant to Section 1.4(c) with
respect to any Portion of Capital, the
Agent shall cause such funds to be
distributed as follows:
(i) if such
distribution occurs on a day that is not a
Termination Day and the Purchased Interest does not exceed 100%,
first
to the Issuer in payment in full of all accrued Discount with
respect
to such Portion of Capital, second, to the Issuer (payable in
arrears
on the Settlement Date) in payment in full of all accrued Program
Fees
and third, if the Servicer has set aside amounts in respect of
the
Servicing Fee pursuant to clause (C) of Section 1.4(b)(i) and
deposited
such amounts in the Administration Account pursuant to Section
1.4(c),
to the Servicer (payable in arrears on the Settlement Date) in
payment
in full of accrued Servicing Fees so set aside; and
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(ii)
if such distribution occurs on a Termination Day or
on a day when the Purchased Interest exceeds 100%, first, to the
Issuer
in payment in full of all accrued Discount with respect to such
Portion
of Capital, second, to the Issuer in payment in full of all
accrued
Program Fees, third, if CITGO is not the Servicer and the Servicer
has
set aside amounts in respect of the Servicing Fee pursuant to
clause
(C) of Section 1.4(b)(i) and deposited such amounts in the
Administration Account pursuant to Section 1.4(c), to the Servicer
in
payment in full of all accrued Servicing Fees, fourth, to the
Issuer,
the Agent and any other Affected Person or Indemnified Party all
other
amounts (other than Indemnified Amounts) payable to the Issuer,
the
Agent and any other Affected Person or Indemnified Party under
this
Agreement and other Transaction Documents, including, without
limitation, amounts payable pursuant to Section 5.04, fifth, to
the
Issuer in payment in full of such Portion of Capital (or if such
day is
not a Termination Day, the amount necessary to reduce the
Purchased
Interest to 100%), sixth, if the Capital and accrued Discount
with
respect to each Portion of Capital has been reduced to zero,
all
accrued Program Fees payable to the Issuer have been paid in full,
all
amounts payable to the Issuer, the Agent and any other Affected
Person
or Indemnified Party pursuant to clause fourth above, have been
paid in
full, and all accrued Servicing Fees payable to the Servicer
pursuant
to clause third above have been paid in full, to the Issuer, the
Agent
and any other Indemnified Party or Affected Person in payment in
full
of any other amounts owed thereto by the Seller hereunder and
seventh,
if CITGO is the Servicer and the Servicer has set aside amounts
in
respect of the Servicing Fee pursuant to clause (C) of Section
1.4(b)(i) and deposited such amounts in the Administration
Account
pursuant to Section 1.4(c), to the Servicer in payment in full of
all
accrued Servicing Fees.
After the Capital and Discount, Program
Fees and Servicing Fees with respect to
the Purchased Interest, and any other
amounts payable by the Seller to the
Issuer, the Agent or any other Indemnified
Party or Affected Person hereunder,
have been paid in full, all additional or
remaining Collections with respect to
the Purchased Interest shall be paid to the
Seller for its own account.
(e) For the
purposes of this Section 1.4:
(i) if on any
day the Outstanding Balance of any
Receivable is reduced or adjusted as a result of any defective,
rejected, returned, repossessed or foreclosed goods or services, or
any
discount or other adjustment made by the Seller, or any setoff
or
dispute between the Seller and an Obligor, the Seller shall be
deemed
to have received on such day a Collection of such Receivable in
the
amount of such reduction or adjustment;
(ii)
if on any day any of the representations or
warranties of the Seller in paragraphs (g) or (o) of Exhibit III
or
Sections 2, 3 or 4 of Exhibit VII is not true with respect to
any
Receivable, the Seller shall be deemed to have received on such day
a
Collection of such Receivable in full;
(iii)
except as provided in paragraph (i) or (ii) of this
Section 1.4(e), or as otherwise required by applicable law or
the
relevant Contract, all Collections received from an Obligor
with
respect to any Receivable shall be applied to the Receivables of
such
Obligor in the order of the age of such Receivables, starting with
the
oldest such
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Receivable, unless such Obligor designates its payment for
application
to specific Receivables; and
(iv)
if and to the extent the Agent or the Issuer shall be
required for any reason to pay over to an Obligor (or any
trustee,
receiver, custodian or similar official in any Insolvency
Proceeding)
any amount received by it hereunder, such amount shall be deemed
not to
have been so received but rather to have been retained by the
Seller
and, accordingly, the Agent or the Issuer, as the case may be,
shall
have a claim against the Seller for such amount, payable when and
to
the extent that any distribution from or on behalf of such Obligor
is
made in respect thereof.
The Seller shall deposit to the
Administration Account an amount equal to all
Collections deemed to have been received by
the Seller pursuant to this Section
1.4(e).
(f) If at any
time the Seller shall wish to cause the reduction of
a Portion of Capital (but not to commence
the liquidation, or reduction to zero,
of the entire Capital of the Purchased
Interest), the Seller may do so as
follows:
(i) the Seller
shall give the Agent at least five
Business Days' prior written notice thereof in substantially the
form
of Annex B (including the amount of such proposed reduction and
the
proposed date on which such reduction will commence),
(ii)
on the proposed date of commencement of such
reduction and on each day thereafter, the Servicer shall cause
Collections with respect to such Portion of Capital not to be
reinvested until the amount thereof not so reinvested shall equal
the
desired amount of reduction, and
(iii) the
Servicer shall hold such Collections in trust for
the Issuer, for payment to the Agent on the last day of the
current
Settlement Period relating to such Portion of Capital, and the
applicable Portion of Capital shall be deemed reduced in the amount
to
be paid to the Agent only when in fact finally so paid;
provided that,
A. the
entire Capital of the Purchased Interest after
giving effect to such reduction shall be not less than
$10,000,000,
B. the
Seller shall choose a reduction amount, and the
date of commencement thereof, so that to the extent practicable
such
reduction shall commence and conclude in the same Fixed Period,
and
C. if
two or more Portions of Capital shall be
outstanding at the time of any proposed reduction, such
proposed
reduction shall be applied, unless the Seller shall otherwise
specify
in the notice given pursuant to Section 1.4(f)(i), to the Portion
of
Capital with the shortest remaining Fixed Period.
Section 1.5. Fees. The
Seller shall pay to the Agent certain fees in
the amounts and on the dates set forth in a
letter dated February 28, 2003
between the Seller and the Agent
delivered
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<PAGE>
pursuant to Section 1 of Exhibit II, as
such letter agreement may be amended,
supplemented or otherwise modified from
time to time.
Section 1.6. Payments
and Computations, Etc. (a) All amounts to be
paid or deposited by the Seller or the
Servicer hereunder shall be paid or
deposited no later than noon (New York City
time) on the day when due in same
day funds to the Administration Account.
All amounts received after noon (New
York City time) will be deemed to have been
received on the immediately
succeeding Business Day.
(b) The Seller
shall, to the extent permitted by law, pay interest
on any amount not paid or deposited by the
Seller (whether as Servicer or
otherwise) when due hereunder, at an
interest rate equal to 2.0% per annum above
the Base Rate, payable on demand.
(c) All
computations of interest under subsection (b) above and
all computations of Discount, fees, and
other amounts hereunder shall be made on
the basis of a year of 360 days for the
actual number of days elapsed. Whenever
any payment or deposit to be made hereunder
shall be due on a day other than a
Business Day, such payment or deposit shall
be made on the next succeeding
Business Day and such extension of time
shall be included in the computation of
such payment or deposit.
Section 1.7. Dividing
or Combining Portions of the Capital of the
Purchased Interest. The Seller may, on the
last day of any Fixed Period, either
(i) divide the Capital of the Purchased
Interest into two or more portions
(each, a "Portion of Capital") equal, in
aggregate, to the Capital of the
Purchased Interest, provided that after
giving effect to such division the
amount of each such Portion of Capital
shall not be less than $5,000,000, or
(ii) combine any two or more Portions of
Capital outstanding on such last day
and having Fixed Periods ending on such
last day into a single Portion of
Capital equal to the aggregate of the
Capital of such Portions of Capital.
Section 1.8. Increased
Costs. (a) If the Agent, the Issuer, any
Purchaser, any other Program Support
Provider or any of their respective
Affiliates (each an "Affected Person")
determines that the existence of or
compliance with (i) any law or regulation
or any change therein or in the
interpretation or application thereof, in
each case adopted, issued or occurring
after the date hereof or (ii) any request,
guideline or directive from any
central bank or other Governmental
Authority (whether or not having the force of
law) issued or occurring after the date of
this Agreement affects or would
affect the amount of capital required or
expected to be maintained by such
Affected Person and such Affected Person
determines that the amount of such
capital is increased by or based upon the
existence of any commitment to make
purchases of or otherwise to maintain the
investment in Receivables related to
this Agreement or any related liquidity
facility or credit enhancement facility
and other commitments of the same type,
then, upon demand by such Affected
Person (with a copy to the Agent), the
Seller shall immediately pay to the
Agent, for the account of such Affected
Person, from time to time as specified
by such Affected Person, additional amounts
sufficient to compensate such
Affected Person in the light of such
circumstances, to the extent that such
Affected Person reasonably determines such
increase in capital to be allocable
to the existence of any of such
commitments. A certificate with supporting
documentation, if available and applicable,
as to such amounts submitted to the
Seller and the Agent by such Affected
Person shall be conclusive and binding
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for all purposes, absent manifest error.
For avoidance of doubt any increase in
cost and/or reduction in yield caused by
regulatory capital allocation
adjustments due to Financial Accounting
Standards Board's Interpretation 46 (or
any future statement or interpretation
issued by the Financial Accounting
Standards Board or any successor thereto)
shall be covered by this Section 1.8.
(b) If, due to
either (i) the introduction of or any change (other
than any change by way of imposition or
increase of reserve requirements
referred to in Section 1.9) in or in the
interpretation of any law or regulation
issued or occurring after the date hereof
or (ii) compliance with any guideline
or request from any central bank or other
Governmental Authority (whether or not
having the force of law) issued or
occurring after the date hereof, there shall
be any increase in the cost to any Affected
Person of agreeing to purchase or
purchasing, or maintaining the ownership of
the Purchased Interest in respect of
which Discount is computed by reference to
the Eurodollar Rate, then, upon
demand by such Affected Person, the Seller
shall immediately pay to such
Affected Person, from time to time as
specified, additional amounts sufficient
to compensate such Affected Person for such
increased costs. A certificate with
supporting documentation, if available and
applicable, as to such amounts
submitted to the Seller by such Affected
Person shall be conclusive and binding
for all purposes, absent manifest
error.
(c) If any of
the events requiring payments of additional amounts
by the Seller under paragraphs (a) or (b)
above occurs, the applicable Affected
Person shall take such steps as may be
reasonable (consistent with its internal
policy and legal and regulatory
restrictions) to change the jurisdiction of its
funding office if such change would avoid
the Seller being required to pay any
additional amounts and would not increase
any cost to such Affected Person or be
otherwise disadvantageous to the Agent or
such Affected Person, and shall
consult with the Seller in good faith with
a view to agreeing to alternative
arrangements whereby any such requirement
can be avoided or mitigated.
Section 1.9.
Requirements of Law. (a) In the event that any Affected
Person determines that the existence of or
compliance with (i) any law or
regulation or any change therein or in the
interpretation or application
thereof, in each case adopted, issued or
occurring after the date hereof or (ii)
any request, guideline or directive from
any central bank or other Governmental
Authority (whether or not having the force
of law) issued or occurring after the
date of this Agreement:
(i) does or
shall subject such Affected Person to any tax
of any kind whatsoever with respect to this Agreement, any increase
in
the Purchased Interest or in the amount of Capital relating
thereto, or
does or shall change the basis of taxation of payments to such
Affected
Person on account of Collections, Discount or any other amounts
payable
hereunder (excluding taxes imposed on the overall net income of
such
Affected Person, and franchise taxes imposed on such Affected
Person,
by the jurisdiction under the laws of which such Affected Person
is
organized or a political subdivision thereof);
(ii)
does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement
against assets held by, or deposits or other liabilities in or for
the
account of, purchases, advances or loans by, or other credit
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extended by, or any other acquisition of funds by, any office of
such
Affected Person which are not otherwise included in the
determination
of the Eurodollar Rate or the Base Rate hereunder; or
(iii) does
or shall impose on such Affected Person any
other condition;
and, the result of any of the foregoing is
(x) to increase the cost to such
Affected Person of acting as Agent, or of
agreeing to purchase or purchasing or
maintaining the ownership of undivided
ownership interests with regard to the
Purchased Interest (or interests therein)
or any Portion of Capital in respect
of which Discount is computed by reference
to the Eurodollar Rate or the Base
Rate or (y) to reduce any amount receivable
hereunder (whether directly or
indirectly) funded or maintained by
reference to the Eurodollar Rate or the Base
Rate, then, in any such case, upon demand
by such Affected Person the Seller
shall pay such Affected Person any
additional amounts necessary to compensate
such Affected Person for such additional
cost or reduced amount receivable. All
such amounts shall be payable as incurred.
A certificate from such Affected
Person to the Seller certifying, in
reasonably specific detail, the basis for,
calculation of, and amount of such
additional costs or reduced amount receivable
shall be conclusive in the absence of
manifest error; provided, however, that no
Affected Person shall be required to
disclose any confidential or tax planning
information in any such certificate.
(b) If any of
the events requiring payments of additional amounts
by the Seller under paragraph (a) above
occurs, the applicable Affected Person
shall take such steps as may be reasonable
(consistent with its internal policy
and legal and regulatory restrictions) to
change the jurisdiction of its funding
office if such change would avoid the
Seller being required to pay any
additional amounts and would not increase
any cost to such Affected Person or be
otherwise disadvantageous to the Agent or
such Affected Person, and shall
consult with the Seller in good faith with
a view to agreeing to alternative
arrangements whereby any such requirement
can be avoided or mitigated.
Section 1.10.
Inability to Determine Eurodollar Rate. In the event
that the Agent shall have determined prior
to the first day of any Fixed Period
(which determination shall be conclusive
and binding upon the parties hereto) by
reason of circumstances, affecting the
interbank Eurodollar market, either (a)
dollar deposits in the relevant amounts and
for the relevant Fixed Period are
not available, (b) adequate and reasonable
means do not exist for ascertaining
the Eurodollar Rate for such Fixed Period
or (c) the Eurodollar Rate determined
pursuant hereto does not accurately reflect
the cost to the Issuer (as
conclusively determined by the Agent) of
maintaining any Portion of Capital
during such Fixed Period, the Agent shall
promptly give telephonic notice of
such determination, confirmed in writing,
to the Seller prior to the first day
of such Fixed Period. Upon delivery of such
notice (a) no Portion of Capital
shall be funded thereafter at the Alternate
Rate determined by reference to the
Eurodollar Rate, unless and until the Agent
shall have given notice to the
Seller that the circumstances giving rise
to such determination no longer exist
and (b) with respect to any outstanding
Portions of Capital then funded at the
Alternate Rate determined by reference to
the Eurodollar Rate, such Alternate
Rate shall automatically be converted to
the Alternate Rate determined by
reference to the Base Rate at the
respective last days of the then current Fixed
Periods relating to such Portions of
Capital.
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ARTICLE II.
REPRESENTATIONS AND WARRANTIES; COVENANTS;
TERMINATION EVENTS
Section 2.1.
Representations and Warranties; Covenants. The Seller and
the Servicer each hereby makes the
representations and warranties applicable to
it, and hereby agrees to perform and
observe the covenants applicable to it, set
forth in Exhibits III, IV and VII,
respectively hereto.
Section 2.2.
Termination Events. If any of the Termination Events set
forth in Exhibit V hereto shall occur, the
Agent may, by notice to the Seller,
declare the Facility Termination Date to
have occurred (in which case the
Facility Termination Date shall be deemed
to have occurred); provided that,
automatically upon the occurrence of any
event (without any requirement for the
passage of time or the giving of notice)
described in subsection (g) of Exhibit
V, the Facility Termination Date shall
occur; provided, further, that, in the
case of a Termination Event described in
subsection (j) of Exhibit V, the
Facility Termination Date shall be deemed
to have occurred on the second
Business Day following the date of such
notice unless such Termination Event is
cured or waived during the intervening
period. Upon any such declaration,
occurrence or deemed occurrence of the
Facility Termination Date, the Issuer and
the Agent shall have, in addition to the
rights and remedies which they may have
under this Agreement, all other rights and
remedies provided after default under
the UCC and under other applicable law,
which rights and remedies shall be
cumulative.
ARTICLE III.
INDEMNIFICATION
Section 3.1.
Indemnities by the Seller. Without limiting any other
rights that the Agent or the Issuer or any
of their respective Affiliates,
employees, agents, successors, transferees
or assigns (each, an "Indemnified
Party") may have hereunder or under
applicable law, the Seller hereby agrees to
indemnify each Indemnified Party from and
against any and all claims, damages,
expenses, losses and liabilities (including
Attorney Costs) (all of the
foregoing being collectively referred to as
"Indemnified Amounts") arising out
of or resulting from this Agreement
(whether directly or indirectly) or the use
of proceeds of purchases or reinvestments
or the ownership of the Purchased
Interest, or any interest therein, or in
respect of any Receivable or any
Contract, excluding, however, (a)
Indemnified Amounts to the extent resulting
from gross negligence, willful misconduct
or unlawful conduct on the part of
such Indemnified Party, (b) recourse
(except as otherwise specifically provided
in this Agreement) for uncollectible
Receivables, or (c) any overall net income
taxes or franchise taxes imposed on such
Indemnified Party by the jurisdiction
under the laws of which such Indemnified
Party is organized or any political
subdivision thereof. Without limiting or
being limited by the foregoing, and
subject to the exclusions set forth in the
preceding sentence, the Seller shall
pay on demand to each Indemnified Party any
and all amounts necessary to
indemnify such Indemnified Party from and
against any and all Indemnified
Amounts relating to or resulting from any
of the following:
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(i) the
failure of any Receivable included in the
calculation of the Net Receivables Balance as an Eligible
Receivable to
be an Eligible Receivable, the failure of any information contained
in
an Interim Receivables Report or a Monthly Receivables Report to
be
true and correct, or the failure of any other information provided
to
the Issuer or the Agent with respect to Receivables or this
Agreement
to be true and correct;
(ii)
the failure of any representation or warranty or
statement (i) made in writing, (ii) deemed made in connection with
the
daily reinvestment of Collections pursuant to Section 1.4 or
(iii)
verbally communicated, during the due diligence process prior to
the
date of closing by the Seller (or any of its officers) or the
originator (or any of its officers), as Servicer or otherwise,
under or
in connection with this Agreement, the Purchase and Sale Agreement
or
any Transaction Document to have been true and correct in all
respects
when made;
(iii) the
failure by the Seller or the Servicer to comply
with any covenant set forth in Exhibit IV or Exhibit VII or the
failure
by the Originator to comply with any covenant set forth in the
Purchase
and Sale Agreement;
(iv)
the failure by the Seller, the originator, as
Servicer or otherwise, to comply with any applicable law, rule
or
regulation with respect to any Receivable or the related Contract;
or
the failure of any Receivable or the related Contract to conform to
any
such applicable law, rule or regulation;
(v) the
failure to vest in the Issuer a valid and
enforceable (A) perfected undivided percentage ownership interest,
to
the extent of the Purchased Interest, in the Receivables and
the
Related Security and Collections with respect thereto and (B)
first
priority perfected security interest in the items described in
Section
1.2(d), in each case, free and clear of any Adverse Claim;
(vi)
the failure to have filed, or any delay in filing,
financing statements or other similar instruments or documents
under
the UCC of any applicable jurisdiction or other applicable laws
with
respect to any Receivables and the Related Security and Collections
in
respect thereof, whether at the time of any purchase or
reinvestment or
at any subsequent time;
(vii) any
dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the
payment
of any Receivable (including, without limitation, a defense based
on
such Receivable or the related Contract not being a legal, valid
and
binding obligation of such Obligor enforceable against it in
accordance
with its terms), or any other claim resulting from the sale of
the
goods or services related to such Receivable or the furnishing
or
failure to furnish such goods or services or relating to
collection
activities with respect to such Receivable (if such collection
activities were performed by the Seller, the Originator or any of
their
respective Affiliates acting as Servicer or by any agent or
independent
contractor retained by the Seller, the Originator or any of
their
respective Affiliates);
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<PAGE>
(viii) any
failure of the Seller or the Originator, as
Servicer or otherwise, to perform its duties or obligations in
accordance with the provisions hereof or to perform its duties
or
obligations under the Contracts;
(ix)
any products liability or other claim, investigation,
litigation or proceeding arising out of or in connection with
merchandise, insurance or services which are the subject of any
Contract;
(x) the
commingling of Collections of Receivables at any
time with other funds of the Seller, the Originator or any
CITGO
Entity;
(xi)
any investigation, litigation or proceeding related
to this Agreement or the use of proceeds of purchases or
reinvestments
or the ownership of the Purchased Interest or in respect of any
Receivable, Related Security or Contract;
(xii) any
reduction in Capital as a result of the
distribution of Collections pursuant to Section 1.4(d), in the
event
that all or a portion of such distributions shall thereafter be
rescinded or otherwise must be returned for any reason;
(xiii) the
Seller's or the Originator's failure to pay when
due any taxes (including sales, excise or personal property
taxes)
payable in connection with the Receivables;
(xiv) the
failure to vest in the Seller all right, title
and interest in the Receivables purchased by the Seller from
the
Originator pursuant to the Purchase and Sale Agreement, free and
clear
of any security interest, lien, claim or encumbrance;
(xv)
any failure of the Seller to give reasonably
equivalent value to the Originator in consideration of the transfer
by
the Originator to the Seller of any Receivables, or any attempt by
any
Person to void any such transfer under statutory provisions or
common
law or equitable action, including, without limitation, any
provision
of the Bankruptcy Code; or
(xvi) any
information provided by the Seller, the
Originator or the Servicer in any Transaction Document furnished to
the
Issuer or the Agent in connection with this Agreement which shall
have
been incorrect in any respect or which shall have omitted any
material
fact necessary to make such information not misleading.
Section 3.2.
Indemnification by the Servicer. Without limiting any
other rights which any Indemnified Party
may have hereunder or under applicable
law, the Servicer hereby agrees to
indemnify each Indemnified Party from and
against any and all Indemnified Amounts
that arise out of or relate to the
Servicer's performance of, or failure to
perform, any of its obligations under
or in connection with this Agreement
(whether directly or indirectly) excluding,
however, (a) Indemnified Amounts to the
extent resulting from gross negligence,
willful misconduct, or unlawful conduct on
the part of such Indemnified Party,
(b) recourse (except as otherwise
specifically provided in this Agreement) for
uncollectible Receivables, or (c) any
overall net income taxes or franchise
taxes imposed on such Indemnified Party by
the jurisdiction under the laws of
which such Indemnified Party is organized
or any political subdivision thereof.
Any
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<PAGE>
Indemnified Amounts shall be paid by the
Servicer to the applicable Indemnified
Party within 5 Business Days following such
Indemnified Party's written demand
therefor, setting forth, in reasonable
detail, the calculation of such amount
and the basis of such demand. The
agreements of the Servicer contained in this
Section 3.2 shall survive the replacement
or termination of any Person acting as
Servicer hereunder with respect to any
Indemnified Amounts arising in connection
with such Person's acting as Servicer.
ARTICLE IV.
ADMINISTRATION AND COLLECTIONS
Section 4.1.
Appointment of Servicer. (a) The servicing, administering
and collection of the Receivables shall be
conducted by the Person so designated
from time to time as Servicer in accordance
with this Section 4.1. Until the
Agent gives notice to CITGO (in accordance
with this Section 4.1) of the
designation of a new Servicer as provided
in the following sentence, CITGO is
hereby designated as, and hereby agrees to
perform the duties and obligations
of, the Servicer pursuant to the terms
hereof. Upon the occurrence of a
Termination Event, the Agent may designate
as Servicer any Person (including
itself) to succeed CITGO or any successor
Servicer, on the condition in each
case that any such Person so designated
shall agree to perform the duties and
obligations of the Servicer pursuant to the
terms hereof.
(b) Upon the
designation of a successor Servicer as set forth in
Section 4.1(a) hereof, CITGO agrees that it
will terminate its activities as
Servicer hereunder in a manner which the
Agent determines will facilitate the
transition of the performance of such
activities to the new Servicer, and CITGO
shall cooperate with and assist such new
Servicer in effecting such transition.
Such cooperation shall include (without
limitation) access to and transfer of
records and use by the new Servicer of all
licenses, hardware or software
necessary or desirable to collect the
Receivables and the Related Security.
(c) CITGO
acknowledges that the Agent and the Issuer have relied
on CITGO's agreement to act as Servicer
hereunder in making their decision to
execute and deliver this Agreement.
Accordingly, CITGO agrees that it will not
resign as Servicer until 30 days prior
written notice of the occurrence of a
"Servicer Resignation Event" (as defined
below) has been delivered to the Agent.
As used herein a "Servicer Resignation
Event" shall mean CITGO's determination
that by reason of a change in legal
requirements the performance of its duties
under this Agreement would cause it to be
in violation of such legal
requirements and (i) the Agent does not
elect to waive the obligations of the
Servicer to perform duties which such
change in legal requirements renders CITGO
legally unable to perform and (ii) CITGO is
unable to delegate those duties to a
Sub-Servicer.
(d) The
Servicer may delegate all or any portion of its duties and
obligations hereunder to any subservicer
(each, a "Sub-Servicer"); provided
that, in each such delegation, (i) such
Sub-Servicer shall agree in writing to
perform the duties and obligations of the
Servicer so delegated pursuant to the
terms hereof, (ii) the Servicer shall
remain primarily liable to the Issuer for
the performance of the duties and
obligations so delegated, (iii) the Seller,
the Agent and the Issuer shall have the
right to look solely to the Servicer for
performance and (iv) the terms of any
agreement with any Sub-Servicer shall
provide that the Agent may terminate such
agreement
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upon the termination of the Servicer
hereunder by giving notice of its desire to
terminate such agreement to the Servicer
(and the Servicer shall provide
appropriate notice to such
Sub-Servicer).
Section 4.2. Duties of
Servicer. (a) The Servicer shall take or cause
to be taken all such action as may be
necessary or advisable to collect each
Receivable from time to time, all in
accordance with this Agreement and all
applicable laws, rules and regulations,
with reasonable care and diligence, and
in accordance with the Credit and
Collection Policy, and shall be responsible
for compliance with the reporting
requirements set forth in this Agreement. The
Servicer shall set aside for the accounts
of the Seller and the Issuer the
amount of the Collections to which each is
entitled in accordance with Article
II hereto but shall not be required (unless
otherwise requested by the Agent) to
segregate the funds constituting such
portions of such Collections, or to
segregate the respective allocable shares
of Issuer, prior to the remittance
thereof in accordance with said Article. If
instructed by the Agent, Servicer
shall segregate and deposit with a bank
(which may be SG) designated by the
Agent such allocable shares of Collections
of Receivables set aside for Issuer,
on the first Business Day following receipt
by Servicer of such Collections in
immediately available funds. The Servicer
may, in accordance with the Credit and
Collection Policy, alter, amend, or
otherwise modify the terms of any
Receivable; provided, however, that in the
case of any such alteration,
amendment, or modification which would
cause such Receivable to no longer be an
Eligible Receivable, and as a result
thereof, cause the Purchased Interest to
exceed 100%, the Servicer shall purchase
such Receivable from the Seller for an
amount equal to the Outstanding Balance of
such Receivable; and provided
further, that if a Termination Event has
occurred and CITGO is still serving as
Servicer, CITGO may make such alteration
amendment or modification only upon the
prior written approval of the Agent. The
Servicer shall hold for the benefit of
the Seller and the Agent (for the benefit
of the Issuer and individually) in
accordance with their respective interests,
all records and documents (including
without limitation computer tapes or disks)
with respect to each Receivable.
Notwithstanding anything to the contrary
contained herein, the Agent may direct
the Servicer (whether the Servicer is the
Seller or any other Person) to
commence or settle any legal action to
enforce collection of any Receivable or
to foreclose upon or repossess any Related
Security; provided, however, that no
such direction may be given unless either a
Termination Event or an Unmatured
Termination Event has occurred.
(b) The
Servicer shall within one Business Day following actual
receipt of collected funds turn over to the
Originator the collections of any
indebtedness that is not a Receivable, less
all reasonable and appropriate
out-of-pocket costs and expenses of such
Servicer of servicing, collecting and
administering such collections; provided,
however, the Servicer shall not be
under any obligation to remit any such
funds to the Originator unless and until
the Servicer has received from the
Originator supporting documentation, which
may consist of a ledger entry showing the
invoice amount matching the applicable
collected payment amount, showing that the
Originator is entitled to such funds
hereunder and under applicable law. The
Servicer shall as soon as practicable
upon demand, deliver to the Originator all
records in its possession which
evidence or relate to any indebtedness that
is not a Receivable, and copies of
records in its possession which evidence or
relate to any indebtedness that is a
Receivable.
(c)
Notwithstanding anything to the contrary contained in this
Article IV, the Servicer shall have no
obligation to collect, enforce or take
any other action described in this Article
IV
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<PAGE>
with respect to any indebtedness that is
not a Receivable other than to deliver
to the Originator the collections and
records with respect to any such
indebtedness as described in Section
4.2(b). It is expressly understood and
agreed by the parties that such Servicer's
duties in respect of any indebtedness
that is not a Receivable are set forth in
this Section 4.2 in their entirety.
Upon delivery by such Servicer of
collections or records relating to any
indebtedness that is not a Receivable to
the Originator, such Servicer shall
have discharged in full all of its
responsibilities to make any such delivery.
(d)
The
Servicer's obligations hereunder shall terminate on the
later of (i) the Facility Termination Date
and (ii) the date on which all
amounts required to be paid to the Issuer,
the Agent and any other Indemnified
Party or Affected Person hereunder shall
have been paid in full.
After such termination the Servicer shall promptly deliver to
the
Seller all books, records and related
materials that the Seller previously
provided to the Servicer in connection with
this Agreement.
Section 4.3. Lock-Box
Arrangements. Prior to the initial purchase
hereunder, in accordance with Section 1 of
Exhibit II, the Originator and the
Seller shall enter into Lock-Box Agreements
with all of the Lock-Box Banks, and
deliver original counterparts thereof to
the Agent. Following the occurrence of
a Termination Event, the Agent may at any
time give notice to each Lock-Box Bank
that the Agent is exercising its rights
under the Lock-Box Agreements to do any
or all of the following: (i) to have the
exclusive ownership and control of the
Lock-Box Accounts transferred to the Agent
and to exercise exclusive dominion
and control over the funds deposited
therein, (ii) to have the proceeds that are
sent to the respective Lock-Box Accounts be
redirected pursuant to its
instructions rather than deposited in the
applicable Lock-Box Account, and (iii)
to take any or all other actions permitted
under the applicable Lock-Box
Agreement. The Seller hereby agrees that if
the Agent, at any time, takes any
action set forth in the preceding sentence,
the Agent shall have exclusive
control of the proceeds (including
Collections) of all Receivables and the
Seller hereby further agrees to take any
other action that the Agent may
reasonably request to transfer such
control. Any proceeds of Receivables
received by the Seller or the Servicer
thereafter shall be sent immediately to
the Agent. The parties hereto hereby
acknowledge that if at any time the Agent
takes control of any Lock-Box Account, the
Agent shall not have any rights to
the funds therein in excess of the unpaid
amounts due to the Agent, the Issuer
or any other Person hereunder and the Agent
shall, in the case of collections
that is not a Receivable, distribute or
cause to be distributed such funds in
accordance with Section 4.2(b) hereof
(including the proviso thereto) and
Article II hereof (in each case as if such
funds were held by the Servicer
thereunder). Upon termination of this
Agreement in accordance with Section 5.9
hereof, the Agent shall take such actions
as are reasonably requested by the
Originator and the Seller to terminate and
release all of its right, title and
interest in and control of the Lock-Box
Accounts.
Section 4.4.
Enforcement Rights. (a) At any time following either (i)
the occurrence of a Termination Event or
(ii) the designation of a Servicer
(other than CITGO) pursuant to Section 4.1
hereof:
(i) the Agent
may direct the Obligors to make payment of
all amounts payable under any Receivable directly to the Agent or
its
designee;
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<PAGE>
(ii)
the Agent may instruct the Seller to give notice of
the Issuer's interest in Receivables to each obligor, which
notice
shall direct that payments be made directly to the Agent or its
designee, and upon such instruction from the Agent the Seller
shall
give such notice at the expense of the Seller; provided, that if
the
Seller fails to so notify each Obligor, the Agent may so notify
the
Obligors; and
(iii) the
Agent may request the Seller to cause the
Originator to, and upon such request the Seller shall cause the
Originator to, (A) assemble all of the records necessary or
desirable
to collect the Receivables and the Related Security, and make the
same
available to the Agent or its designee at a place selected by
the
Agent, (B) use reasonable efforts to obtain consent to assign
the
license for the use of, to the new Servicer, all software necessary
or
desirable to collect the Receivables and the Related Security,
and
deliver such software to the Agent or its designee and (C)
segregate
all cash, checks and other instruments received by it from time to
time
constituting Collections with respect to the Receivables in a
manner
acceptable to the Agent and, promptly upon receipt, remit all
such
cash, checks and instruments duly endorsed or with duly
executed
instruments of transfer, to the Agent or its designee.
(b) The Seller
hereby authorizes the Agent, and irrevocably
appoints the Agent as its attorney-in-fact
with full power of substitution and
with full authority in the place and stead
of the Seller, which appointment is
coupled with an interest and which may be
exercised by the Agent only upon the
occurrence of a Termination Event, to take
any and all steps in the name of the
Seller and on behalf of the Seller
necessary or desirable, in the determination
of the Agent, to collect any and all
amounts or portions thereof due under any
and all Receivables or Related Security,
including, without limitation,
endorsing the name of the Seller or the
originator on checks and other
instruments representing Collections and
enforcing such Receivables, Related
Security and the related Contracts.
Notwithstanding anything to the contrary
contained in this subsection (b), none of
the powers conferred upon such
attorney-in-fact pursuant to the
immediately preceding sentence shall subject
such attorney-in-fact to any liability if
any action taken by it shall prove to
be inadequate or invalid, nor shall they
confer any obligations upon such
attorney-in-fact in any manner
whatsoever.
Section 4.5.
Responsibilities of the Originator; Assignment of Rights
Under Purchase and Sale Agreement. (a)
Anything herein to the contrary
notwithstanding, the Seller shall cause the
Originator to (i) perform all of its
obligations under the Contracts related to
the Receivables to the same extent as
if interests in such Receivables had not
been transferred to the Seller or the
Issuer, and the exercise by the Agent or
the Issuer of its rights hereunder
shall not relieve the Originator from such
obligations, and (ii) pay when due
any taxes, including, without limitation,
any sales taxes payable in connection
with the Receivables and their creation and
satisfaction. The Agent and the
Issuer shall not have any obligation or
liability with respect to any
Receivable, any Related Security or any
related Contract, nor shall any of them
be obligated to perform any of the
obligations of the Originator under any of
the foregoing.
(b) The Seller
shall cause the Originator to hold in trust and
promptly turn over to the Servicer (if the
Servicer is not the Originator) any
Collections received by the Originator on
the Seller's behalf.
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(c) The Seller
hereby assigns to the Issuer, consistent with the
Purchase and Sale Agreement, all rights of
the Seller against the Originator
under the Purchase and Sale Agreement and
hereby agrees that (i) the Issuer
shall be a third party beneficiary of the
Seller's rights under the Purchase and
Sale Agreement, (ii) the Seller will
enforce its rights under the Purchase and
Sale Agreement on behalf of the Issuer and
(iii) the Issuer shall be entitled to
enforce such rights against the Originator
as if the Issuer had been party to
the Purchase and Sale Agreement.
(d) CITGO
hereby irrevocably agrees that if at any time it shall
cease to be the Servicer hereunder, it
shall act (if the then current Servicer
so requests) as the data-processing agent
of the Servicer and, in such capacity,
CITGO shall conduct the data-processing
functions of the administration of the
Receivables and the Collections thereon in
substantially the same way that CITGO
conducted such data-processing functions
while it acted as the Servicer.
(e) The Seller hereby
agrees that during the period that this
Agreement is in effect, the prior consent
of the Agent and the Issuer shall be
required in order for the Seller to grant
any material consent, authorization or
approval under the Purchase and Sale
Agreement.
Section 4.6. Servicing
Fee. (a) The Servicer shall be paid a monthly
fee, through distributions contemplated by
Section 1.4(d), equal to 1.0% per
annum of the average outstanding
Receivables for the applicable month paid on
the Settlement Date.
(b) If the
Servicer ceases to be CITGO or an Affiliate hereof, the
servicing fee shall be the greater of: (i)
the amount calculated pursuant to
clause (a), and (ii) an alternative amount
specified by the successor Servicer
not to exceed 110% of the aggregate
reasonable costs and expenses incurred by
such successor Servicer in connection with
the performance of its obligations as
Servicer.
ARTICLE V.
MISCELLANEOUS
Section 5.1.
Amendments, Etc. No amendment or waiver of any provision
of this Agreement or consent to any
departure by the Seller or Servicer
therefrom shall be effective unless in a
writing signed by the Agent, and, in
the case of any amendment, by the Seller
and the Servicer and then such
amendment, waiver or consent shall be
effective only in the specific instance
and for the specific purpose for which
given. No failure on the part of the
Issuer or Agent to exercise, and no delay
in exercising, any right hereunder
shall operate as a waiver thereof; nor
shall any single or partial exercise of
any right hereunder preclude any other or
further exercise thereof or the
exercise of any other right.
Section 5.2. Notices,
Etc. All notices and other communications
hereunder shall, unless otherwise stated
herein, be in writing (which shall
include facsimile communication) and sent
or delivered, to each party hereto, at
its address set forth under its name on the
signature pages hereof or at such
other address as shall be designated by
such party in a written notice to the
other parties hereto. Notices and
communications by facsimile shall be effective
when received (and shall be followed by
hard copy sent by first class mail), and
notices and communications sent by other
means shall be effective when received.
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Section 5.3.
Assignability. (a) This Agreement and the Issuer's rights
and obligations herein (including ownership
of the Purchased Interest) shall be
assignable, in whole or in part, by the
Issuer and its successors and assigns
with, unless a Termination Event has
occurred and is continuing, the prior
written consent of the Seller; provided;
however, that such consent shall not be
unreasonably withheld; and provided,
further, however, that no such consent
shall be required if the assignment is made
to SG, any Affiliate of SG (other
than a director or officer of SG), any
Purchaser or other Program Support
Provider or any Person which is (i) in the
business of issuing notes similar to
the Notes and (ii) associated with or
administered by SG or any Affiliate of SG.
Subject to Section 5.6, each assignor may,
in connection with the assignment,
disclose to the applicable assignee any
information relating to the Seller or
the Receivables furnished to such assignor
by or on behalf of the Seller, the
Issuer or the Agent.
(b) The Issuer
may at any time grant to one or more banks or other
institutions (each a "Purchaser") party to
the Liquidity Asset Purchase
Agreement or to any other Program Support
Provider participating interests in
the Purchased Interest. In the event of any
such grant by the Issuer of a
participating interest to a Purchaser or
other Program Support Provider, the
Issuer shall remain responsible for the
performance of its obligations
hereunder. The Seller agrees that each
Purchaser or other Program Support
Provider shall be entitled to the benefits
of Sections 1.8 and 1.9 with respect
to its participating interest.
(c) Upon five
(5) Business Days prior written notice to the
Seller, this Agreement and the rights and
obligations of the Agent hereunder
shall be assignable, in whole or in part,
by the Agent and its successors and
assigns.
(d) Except as
provided in Section 4.1(d), neither the Seller nor
the Servicer may assign its rights or
delegate its obligations hereunder or any
interest herein without the prior written
consent of the Agent.
(e) Without
limiting any other rights that may be available under
applicable law, the rights of the Issuer
may be enforced through it or by its
agents.
Section 5.4. Costs,
Expenses and Taxes. (a) In addition to the rights
of indemnification granted under Section
3.1 hereof, the Seller agrees to pay on
demand all costs and expenses in connection
with the preparation, execution,
delivery and administration (including
periodic auditing of Receivables) of this
Agreement, the Liquidity Asset Purchase
Agreement, any asset purchase agreement,
reimbursement agreement, letter of credit
or similar agreement relating to the
sale or transfer of interests in Purchased
Interests and the other documents and
agreements to be delivered hereunder,
including, without limitation, reasonable
Attorney Costs for the Agent, the Issuer
and their respective Affiliates and
agents with respect thereto and with
respect to advising the Agent, the Issuer
and their respective Affiliates and agents
as to their rights and remedies under
this Agreement and the other Transaction
Documents, and all costs and expenses,
if any (including reasonable Attorney
Costs), of the Agent, the Issuer and their
respective Affiliates and agents, in
connection with the enforcement of this
Agreement and the other Transaction
Documents.
(b) In
addition, the Seller shall pay on demand any and all stamp
and other taxes and fees payable in
connection with the execution, delivery,
filing and recording of this Agreement
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or the other documents or agreements to be
delivered hereunder, and agrees to
save each Indemnified Party harmless from
and against any liabilities with
respect to or resulting from any delay in
paying or omission to pay such taxes
and fees.
Section 5.5. No Proceedings; Limitation on Payments. Each of
the
Seller, the Servicer, the Agent, each
assignee of the Purchased Interest or any
interest therein and each Person which
enters into a commitment to purchase the
Purchased Interest or interests therein
hereby covenants and agrees that it will
not institute against, or join any other
Person in instituting against, the
Issuer any bankruptcy, reorganization,
arrangement, insolvency or liquidation
proceeding, or other proceeding under any
federal or state bankruptcy or similar
law, for one year and one day after the
latest maturing Note or note referred to
in clause (i) of Section 5.3(a) issued by
the Issuer is paid in full.
Section 5.6. Confidentiality. (a) Unless otherwise required by
applicable law, the Seller agrees to
maintain the confidentiality of this
Agreement and the other Transaction
Documents (and all drafts thereof) in
communications with third parties and
otherwise; provided that this Agreement
may be disclosed to (a) third parties to
the extent such disclosure is made
pursuant to a written agreement of
confidentiality in form and substance
reasonably satisfactory to the Agent, and
(b) the Seller's legal counsel and
auditors if they agree to hold it
confidential.
(b) The Issuer and the Agent agree to maintain the confidentiality
of
any information regarding the Seller, the
Originator or the Receivables obtained
in accordance with the terms of this
Agreement but the Issuer and the Agent may
reveal such information (i) to applicable
rating agencies, liquidity providers
and credit providers, including
participants and assignees (provided that the
Issuer or the Agent, as applicable, gives
notice of the provisions of this
Section 5.6 prior to the disclosure of such
information and obtains the
agreement of any such party to be bound by
the provisions of this Section 5.6),
(ii) as necessary or appropriate in
connection with the administration or
enforcement of this Agreement or its
funding of purchases under this Agreement,
(iii) as required by law, government
regulation, court proceeding or subpoena,
or (iv) to counsel and bank regulatory
agencies and examiners and auditors or
accountants of the Issuer and Agent.
Section 5.7. GOVERNING LAW AND JURISDICTION. (a) THIS AGREEMENT
SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW
YORK (INCLUDING SECTIONS 5-1401 AND 5-1402
OF THE GENERAL OBLIGATIONS LAWS, BUT
OTHERWISE WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF).
(b) ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY
BE BROUGHT IN THE COURTS OF THE STATE OF
NEW YORK OR OF THE UNITED STATES FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND BY
EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE ISSUER, THE SELLER,
THE SERVICER AND THE ADMINISTRATOR
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE
ISSUER, THE SELLER, THE SERVICER AND
THE ADMINISTRATOR IRREVOCABLY WAIVES, TO
THE MAXIMUM EXTENT PERMITTED BY LAW,
ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE
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<PAGE>
LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT
OR ANY DOCUMENT RELATED HERETO. THE
ISSUER, THE SELLER, THE SERVICER AND THE
ADMINISTRATOR EACH WAIVE PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY
OTHER MEANS PERMITTED BY NEW YORK LAW.
Section 5.8. Execution in Counterparts. This Agreement may be
executed
in any number of counterparts, each of
which when so executed shall be deemed to
be an original and all of which when taken
together shall constitute one and the
same agreement.
Section 5.9. Termination; Survival of Termination. This Agreement
shall
terminate on the latest of the Facility
Termination Date or the date on which no
Capital, Discount or Program Fees in
respect of the Purchased Interest shall be
outstanding and all other amounts owed by
the Seller to the Issuer, the Agent
and any other Indemnified Party or Affected
Person shall have been paid in full.
The provisions of Sections 1.8, 1.9, 1.10,
3.1, 5.4, 5.5, 5.6, 5.7 and 5.10
shall survive any termination of this
Agreement.
Section 5.10. WAIVER OF JURY TRIAL. THE ISSUER, THE SELLER, THE
SERVICER AND THE ADMINISTRATOR EACH WAIVE
THEIR RESPECTIVE RIGHTS TO A TRIAL BY
JURY OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF OR RELATED TO
THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE
BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR PARTIES, WHETHER WITH
RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE ISSUER, THE
SELLER, THE SERVICER AND THE ADMINISTRATOR
EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT
TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, EACH OF THE PARTIES HERETO
FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO
A TRIAL BY JURY IS WAIVED BY
OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO
CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR ANY PROVISION HEREOF.
THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
Section 5.11. Entire Agreement. This Agreement and the other
Transaction Documents required to be
delivered hereunder embody the entire
agreement and understanding between the
Issuer, the Seller, the Servicer and the
Agent, and supersede all prior or
contemporaneous agreements and understandings
of such Persons, verbal or written,
relating to the subject matter hereof and
thereof, except for any prior arrangements
made with respect to the payment by
the Issuer of (or any indemnification for)
any fees, costs or expenses payable
to or incurred (or to be incurred) by or on
behalf of the Seller, the Servicer
and the Agent.
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<PAGE>
Section 5.12. Headings. The captions and headings of this Agreement
and
in any Exhibit hereto are for convenience
of reference only and shall not affect
the interpretation hereof or thereof.
Section 5.13. Issuer's Liabilities. The obligations of the Issuer
under
this Agreement are solely the corporate
obligations of the Issuer. No recourse
shall be had for any obligation or claim
arising out of or based upon this
Agreement against any stockholder,
employee, officer, member, manager, director,
agent or incorporator of the Issuer; and
provided, however, that this Section
5.13 shall not relieve any such Person of
any liability it might otherwise have
for its own gross negligence, willful
misconduct or unlawful conduct. The
agreements provided in this Section 5.13
shall survive termination of this
Agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties have caused this Agreement to
be
executed by their respective officers
thereunto duly authorized, as of the date
first above written.
CITGO FUNDING COMPANY, L.L.C.,
as Seller
By:____________________________________
Name:
Title:
P.O. Box 22071
Tulsa, Oklahoma 74121-2071
Telephone No. (918) 495-5012
Facsimile No. (918) 495-5559
CITGO PETROLEUM CORPORATION,
as Servicer
By:____________________________________
Name:_______________________________
Title:______________________________
6100 South Yale Avenue
Tulsa, Oklahoma
74136
Telephone No. (918) 495-5012
Facsimile No. (918)
495-5559
S-1
SG/CITGO RPA
<PAGE>
ASSET ONE SECURITIZATION, LLC,
as Issuer
By:____________________________________
Name:_______________________________
Title:______________________________
c/o AMACAR Group, LLC
6525 Morrison Boulevard, Suite 318
Charlotte, North Carolina 28210
Telephone No.: (704) 365-0569
Facsimile No.: (704) 365-1362
Attention: Douglas K. Johnson
S-2
SG/CITGO RPA
<PAGE>
SOCIETE GENERALE,
as the Agent
By:____________________________________
Name:_______________________________
Title:______________________________
181 West Madison Street
Suite 3400
Chicago, Illinois 60602
Telephone No.: (312) 578-5000
Facsimile No.: (312) 578-5099
Attention: Asset Securitization
Group
S-3
SG/CITGO RPA
<PAGE>
EXHIBIT I
DEFINITIONS
As used in the Agreement (including the Exhibits to this
Agreement),
the following terms shall have the
following meanings (such meanings to be
equally applicable to both the singular and
plural forms of the terms defined).
Unless otherwise indicated, all Section,
Annex, Exhibit and Schedule references
in this Exhibit are to Sections of and
Annexes, Exhibits and Schedules to this
Agreement.
"Administration Account" means the special account (ABA#
026-004-226, Account# 9050795; Attention SG
Asset One (CITGO)) of the Issuer
maintained at the office of SG in New York,
New York, or such other account as
may be so designated in writing by the
Agent to the Seller and the Servicer.
"Adverse Claim" means a lien, security interest or other
charge or encumbrance, or any other type of
preferential arrangement, it being
understood that a lien, security interest
or other charge or encumbrance, or any
other type of preferential arrangement, in
favor of the Issuer shall not
constitute an Adverse Claim.
"Affected Person" has the meaning set forth in Section 1.8.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, is in control of,
is controlled by or is under common
control with such Person or is a director
or officer of such Person.
"Agent" has the meaning set forth in the preamble to this
Agreement.
"Agreed Upon Procedures Report" means, the Agreed Upon
Procedures Report, which report shall cover
the sample testing of procedures,
data reports and calculations for three (3)
calendar months and be in a form and
substance reasonably acceptable to the
Agent.
"Alternate Rate" for any Fixed Period for any Portion of
Capital of the Purchased Interest means an
interest rate per annum equal to (a)
1.25% per annum above the Eurodollar Rate
for such Fixed Period or (b) if
Eurodollar Rate quotations are unavailable,
the Base Rate for such Fixed Period;
provided, however, that in the case of
(1) any Fixed
Period on or prior to the first
day of which the Agent shall have been
notified by the Issuer or a Purchaser or
other Program Support Provider that the
introduction of or any change in or in the
interpretation of any law or regulation
makes it unlawful, or any central bank or
other Governmental Authority asserts that it
is unlawful, for the Issuer or such
Purchaser or other Program Support Provider
to fund any Portion of Capital (based on the
Eurodollar Rate) set forth above (and the
Issuer or such Purchaser or other Program
Support Provider shall not have subsequently
notified the Agent that such circumstances
no longer exist), or
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<PAGE>
(2) any Fixed
Period as to which the Agent does
not receive notice, by no later than 11:00
a.m. (New York City time) on the second
Business Day preceding the first day of such
Fixed Period,
the "Alternate Rate" for each such Fixed
Period shall be an interest rate per
annum equal to the Base Rate in effect on
each day of such Fixed Period.
Following the occurrence of a Termination
Event, the "Alternate Rate" for all
Fixed Periods shall be an interest rate
equal to 2% per annum above the Base
Rate in effect on each day of such Fixed
Period.
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other
external counsel.
"Average Maturity" means, in respect of any calendar month,
the number of days (computed as of the last
day of such calendar month) equal to
the product of (a) the average of the
Outstanding Balance of all Receivables as
of the first day and the last day of such
calendar month divided by the
aggregate amount of Collections for such
calendar month and (b) the number of
days in such calendar month.
"Bankruptcy Code" means the United States Bankruptcy Reform
Act of 1978 (11 U.S.C. Section 101, et
seq.), as amended from time to time.
"Base Rate" means for any day, a fluctuating interest rate per
annum as shall be in effect from time to
time, which rate shall be at all times
equal to the higher of:
i. the
rate of interest in effect for such day as
publicly announced from time to time by SG at its
branch office in New York, New York, as its
"reference rate." It is a rate set by SG based upon
various factors including SG's costs and desired
return, general economic conditions and other
factors, and is used as a reference point for pricing
some loans, which may be priced at, above, or below
such announced rate; and
ii. 0.50% per
annum above the latest Federal Funds Rate.
"Branded Receivable" means a Receivable, the Obligor of which
operates under the "CITGO" tradename.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New
York City, Chicago, San Francisco or
Tulsa, Oklahoma are authorized or required
by law to remain closed; provided
that, when used in connection with the
Eurodollar Rate, the term "Business Day"
shall also exclude any day on which banks
are not open for dealings in dollar
deposits in the London interbank
market.
"Capital" means with respect to the Receivables Purchase
Agreement, the amount paid to the Seller in
respect of the Purchased Interest by
the Issuer pursuant to Section 1.2 of this
Agreement, or such amount divided or
combined in accordance with Section 1.7 of
this Agreement, in each case reduced
from time to time by Collections
distributed and applied on account of such
Capital pursuant to Section 1.4(d) of this
Agreement and increased from time to
time by reinvestments pursuant to Section
1.4(b)(ii) of this Agreement;
provided, that if such
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<PAGE>
Capital shall have been reduced by any
distribution and thereafter all or a
portion of such distribution is rescinded
or must otherwise be returned for any
reason, such Capital shall be increased by
the amount of such rescinded or
returned distribution, as though it had not
been made.
"CITGO" means CITGO Petroleum Corporation, a Delaware
corporation.
"CITGO Entity" has the meaning set forth in Subsection (l) of
the covenants of the Seller set forth in
Exhibit IV.
"Collection Delay Factor" means 2.5 or such other value as the
Agent may from time to time select upon
three Business Days' notice to the
Seller.
"Collection Period" means a calendar month.
"Collections" means, with respect to any Receivable, (a) all
funds which are received by the Seller or
the Servicer in payment of any amounts
owed in respect of such Receivable
(including, without limitation, purchase
price, finance charges, interest and all
other charges), or applied to amounts
owed in respect of such Receivable
(including, without limitation, insurance
payments and net proceeds of the sale or
other disposition of repossessed goods
or other collateral or property of the
related obligor or any other Person
directly or indirectly liable for the
payment of such Receivable and available
to be applied thereon), (b) all Deemed
Collections and (c) all other proceeds of
such Receivable.
"Contract" means, with respect to any Receivable, the portions
of each Distributor Franchise Agreement or
similar agreement which relate to the
payment terms and other arrangements that
give rise to or evidence such
Receivable and the Originator's rights
under each Distributor Franchise
Agreement or similar agreement with respect
to the collection and enforcement of
such Receivable.
"CP Market Disruption Event" means, at any time for any reason
whatsoever, the Issuer shall be unable to
raise, or shall be precluded or
prohibited from raising, funds through the
issuance of Notes in the United
States' commercial paper market at such
time.
"CP Rate" for any Fixed Period for any Portion of Capital of
the Purchased Interest means, to the extent
the Issuer funds such Portion of
Capital for such Fixed Period by issuing
Notes, a rate per annum equal to the
sum of (a) the rate (or if more than one
rate, the weighted average of the
rates) at which Notes of the Issuer having
a term equal to such Fixed Period and
to be issued to fund such Portion of
Capital may be sold by any placement agent
or commercial paper dealer selected by the
Agent on behalf of the Issuer, as
agreed between each such agent or dealer
and the Agent and notified by the Agent
to the Servicer; provided that if the rate
(or rates) as agreed between any such
agent or dealer and the Agent with regard
to any Fixed Period for such Portion
of Capital is a discount rate (or rates),
then such rate shall be the rate (or
if more than one rate, the weighted average
of the rates) resulting from
converting such discount rate (or rates) to
an interest-bearing equivalent rate
per annum, plus (b) the greater of (i) the
commissions and charges charged by
such placement agent or commercial paper
dealer with respect to such Notes and
(ii) 0.05% of the face amount of such
Notes, expressed as a percentage of such
face amount and converted to an interest
bearing equivalent rate per annum.
Following
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<PAGE>
the occurrence of a Termination Event, the
"CP Rate" for all Fixed Periods shall
be an interest rate equal to 2% per annum
above the Base Rate in effect on each
day of such Fixed Period.
"CRCC" means CITGO Refining & Chemicals Company L.P., a
Texas
limited partnership.
"Credit and Collection Policy" means those receivables credit
and collection policies and practices of
the Originator, which have been adopted
by the Seller, in effect on the date of
this Agreement and previously furnished
to the Issuer and the Agent and described
in Schedule I to this Agreement, as
modified in compliance with the Purchase
and Sale Agreement and this Agreement.
"Debt" means (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, debentures,
notes or other similar instruments,
(iii) obligations other than accounts
payable and accrued liabilities incurred
in the normal course of business to pay the
deferred purchase price of property
or services, (iv) obligations as lessee
under leases which shall have been or
should be, in accordance with generally
accepted accounting principles, recorded
as capital leases, (v) obligations under
direct or indirect guaranties in
respect of, and obligations (contingent or
otherwise) to purchase or otherwise
acquire, or otherwise to assure a creditor
against loss in respect of,
indebtedness or obligations of others of
kinds referred to in clauses (i)
through (iv) above, and (vi) liabilities in
respect of unfunded vested benefits
under plans covered by Title IV of
ERISA.
"Deemed Collections" means the collections deemed to have been
received pursuant to subsections (i) and
(ii) of Section 1 4(e).
"Delinquency Ratio" means the ratio (expressed as a percentage
and rounded upwards to the nearest l/100 of
1%) computed as of the last day of
each calendar month by dividing (i) the
aggregate Outstanding Balance of all
Receivables that were Delinquent
Receivables on such day by (ii) the aggregate
Outstanding Balance of all Receivables on
such day.
"Delinquent Receivable" means a Receivable which:
(i) as to which any payment, or part thereof, remains
unpaid for at least 30 days from the original due date for
such payment; or
(ii) which, consistent with the Credit and Collection
Policy, would be classified as delinquent by the Seller.
"Dilution Factors" means (i) the failure by the Originator to
deliver any merchandise or provide any
services or otherwise to perform under
the underlying Contract or bill of lading,
(ii) any change in the terms of, or
cancellation of, a Contract or invoice or
any other adjustment by the Servicer
which reduces the amount payable by the
Obligor on the related Receivable, (iii)
any setoff by an Obligor in respect of any
claim by such Obligor as to the
amounts owed by it on the related
Receivable, and (iv) any specific dispute
(with respect to which a credit is issued)
counterclaim or defense asserted by
the Obligor of the related Receivable
(except the discharge in bankruptcy of
such Obligor).
I-4
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"Dilution Horizon Factor" means a ratio, computed as of the
last day of each Collection Period,
computed by dividing (i) the aggregate of
all Eligible Receivables generated during
the most recently ended Collection
Period by (ii) the Net Receivables Balance
as of such day of computation.
"Dilution Percentage" means, as of any date, a fraction
(expressed as a percentage and rounded
upwards to the nearest 1/100 of 1%) equal
to (i) the sum of (x) 2.5 multiplied by the
average of the Dilution Ratios for
each of the twelve most recently ended
Collection Periods plus (y) the Dilution
Volatility Ratio as of the last day of the
most recently completed Collection
Period, multiplied by (ii) the Dilution
Horizon Factor as of the last day of the
most recently ended Collection Period. The
Dilution Percentage shall be
calculated monthly in each Monthly
Receivables Report and such Dilution
Percentage shall, absent manifest error, be
effective from the Settlement Date
following such calculation until the next
succeeding Settlement Date.
"Dilution Ratio" means, for any Collection Period, the ratio
(expressed as a percentage and rounded
upwards to the nearest 1/100th
