Exhibit 10.2


 


Execution Copy


 


U.S. CONTRIBUTION AGREEMENT


 


between


 


HUNTSMAN INTERNATIONAL LLC,


as Contributor and Originator


 


and


 


HUNTSMAN RECEIVABLES FINANCE II LLC,


as the Company


 


Dated as of October 16, 2009.


 


1

















 


TABLE OF CONTENTS


 


	
  1.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
  1.01

  	
  Defined
  Terms

  	
  1

  
	
   

  	
  1.02

  	
  Other
  Definitional Provisions

  	
  1

  
	
  2.

  	
  CONTRIBUTION
  OF RECEIVABLES

  	
  3

  
	
   

  	
  2.01

  	
  Contribution
  of Receivables

  	
  3

  
	
   

  	
  2.02

  	
  Contribution
  Value

  	
  5

  
	
   

  	
  2.03

  	
  Intentionally
  Omitted

  	
  6

  
	
   

  	
  2.04

  	
  No
  Repurchase

  	
  6

  
	
   

  	
  2.05

  	
  Rebates,
  Adjustments, Returns, Reductions and Modifications

  	
  6

  
	
   

  	
  2.06

  	
  Payments
  in Respect of Ineligible Receivables and Originator Indemnification Payments

  	
  6

  
	
   

  	
  2.07

  	
  Certain
  Charges

  	
  7

  
	
   

  	
  2.08

  	
  Certain
  Allocations

  	
  7

  
	
   

  	
  2.09

  	
  Power
  of Attorney

  	
  7

  
	
  3.

  	
  CONDITIONS
  TO CONTRIBUTIONS

  	
  8

  
	
   

  	
  3.01

  	
  Conditions
  Precedent to Contribution

  	
  8

  
	
   

  	
  3.02

  	
  Conditions
  Precedent to all Contributions of Receivables

  	
  10

  
	
   

  	
  3.03

  	
  Conditions
  Precedent to the Contributor’s Obligations on the Initial Contribution Date
  and each Contribution Date Thereafter

  	
  10

  
	
  4.

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  11

  
	
   

  	
  4.01

  	
  Representations
  and Warranties of the Contributor

  	
  11

  
	
   

  	
  4.02

  	
  Representations
  and Warranties of the Contributor Relating to the Contributed Receivables

  	
  16

  
	
   

  	
  4.03

  	
  Representations
  and Warranties of the Company

  	
  17

  
	
  5.

  	
  AFFIRMATIVE
  COVENANTS

  	
  18

  
	
   

  	
  5.01

  	
  Financial
  Statements; Reports; etc.

  	
  18

  
	
   

  	
  5.02

  	
  Compliance
  with Law and Policies

  	
  18

  
	
   

  	
  5.03

  	
  Preservation
  of Company Existence

  	
  19

  
	
   

  	
  5.04

  	
  Separate
  Company Existence

  	
  19

  
	
   

  	
  5.05

  	
  Inspection
  of Property; Books and Records; Discussions

  	
  20

  
	
   

  	
  5.06

  	
  Location
  of Records

  	
  20

  
	
   

  	
  5.07

  	
  Computer
  Files and other Documents

  	
  20

  
	
   

  	
  5.08

  	
  Obligations

  	
  20

  
	
   

  	
  5.09

  	
  Collections

  	
  20

  



 


ii

















 


	
   

  	
  5.10

  	
  Furnishing Copies, Etc.

  	
  21

  
	
   

  	
  5.11

  	
  Intentionally Omitted

  	
  21

  
	
   

  	
  5.12

  	
  Assessments

  	
  21

  
	
   

  	
  5.13

  	
  Intentionally Omitted

  	
  21

  
	
   

  	
  5.14

  	
  Notices

  	
  21

  
	
   

  	
  5.15

  	
  Bankruptcy

  	
  21

  
	
   

  	
  5.16

  	
  Further Action

  	
  22

  
	
   

  	
  5.17

  	
  Marking of Records

  	
  22

  
	
   

  	
  5.18

  	
  Intercreditor Agreements

  	
  23

  
	
   

  	
  5.19

  	
  Enforcement of Agreements

  	
  23

  
	
  6.

  	
  NEGATIVE COVENANTS

  	
  23

  
	
   

  	
  6.01

  	
  Limitations on Transfers of Contributed Receivables, Etc.

  	
  23

  
	
   

  	
  6.02

  	
  Extension or Amendment of Contributed Receivables

  	
  23

  
	
   

  	
  6.03

  	
  Change in Payment Instructions to Obligors or in Collection
  Account Banks

  	
  23

  
	
   

  	
  6.04

  	
  Change in Name

  	
  23

  
	
   

  	
  6.05

  	
  Policies

  	
  23

  
	
   

  	
  6.06

  	
  Modification of Legend

  	
  24

  
	
   

  	
  6.07

  	
  Accounting for Contributions

  	
  24

  
	
   

  	
  6.08

  	
  Instruments

  	
  24

  
	
   

  	
  6.09

  	
  Ineligible Receivables

  	
  24

  
	
   

  	
  6.10

  	
  Business of the Contributor

  	
  24

  
	
   

  	
  6.11

  	
  Limitation on Fundamental Changes

  	
  24

  
	
   

  	
  6.12

  	
  Offices

  	
  24

  
	
   

  	
  6.13

  	
  Intentionally Omitted

  	
  24

  
	
   

  	
  6.14

  	
  Amendment of Transaction Documents or Other Material
  Documents

  	
  24

  
	
   

  	
  6.15

  	
  Additional Equity

  	
  24

  
	
   

  	
  6.16

  	
  U.S. Receivables Purchase Agreement

  	
  25

  
	
  7.

  	
  TERMINATION EVENTS

  	
  25

  
	
   

  	
  7.01

  	
  Originator Termination Events

  	
  25

  
	
   

  	
  7.02

  	
  Program Termination Events

  	
  26

  
	
   

  	
  7.03

  	
  Remedies

  	
  27

  
	
  8.

  	
  MISCELLANEOUS

  	
  28

  
	
   

  	
  8.01

  	
  Payments

  	
  28

  
	
   

  	
  8.02

  	
  Costs and Expenses

  	
  28

  



 


iii

















 


	
   

  	
  8.03

  	
  Successors and Assigns

  	
  29

  
	
   

  	
  8.04

  	
  Intentionally Omitted

  	
  29

  
	
   

  	
  8.05

  	
  Intentionally Omitted

  	
  30

  
	
   

  	
  8.06

  	
  Governing Law

  	
  30

  
	
   

  	
  8.07

  	
  No Waiver; Cumulative Remedies

  	
  30

  
	
   

  	
  8.08

  	
  Amendments and Waivers

  	
  30

  
	
   

  	
  8.09

  	
  Severability

  	
  30

  
	
   

  	
  8.10

  	
  Notices

  	
  30

  
	
   

  	
  8.11

  	
  Counterparts

  	
  31

  
	
   

  	
  8.12

  	
  Submission to Jurisdiction; Service of Process

  	
  31

  
	
   

  	
  8.13

  	
  No Bankruptcy Petition

  	
  32

  
	
   

  	
  8.14

  	
  Termination

  	
  32

  
	
   

  	
  8.15

  	
  Responsible Officer Certificates; No Recourse

  	
  32

  
	
   

  	
  8.16

  	
  Confidential Information

  	
  33

  
	
   

  	
  8.17

  	
  Effectiveness of this Agreement

  	
  33

  



 


iv

















 


U.S.
CONTRIBUTION AGREEMENT, dated as of October 16, 2009 (this “Agreement”),
between Huntsman International LLC, a limited liability company organized under
the laws of the State of Delaware, as contributor (the “Contributor”)
and Huntsman Receivables Finance II LLC, a limited liability company organized
under the laws of the State of Delaware, as the Company (the “Company”).


W I T N E S S E T H:


 


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


 


WHEREAS,
the Contributor shall purchase additional accounts receivable pursuant to the
U.S. Receivables Purchase Agreement, dated as of the date hereof (the “U.S.
Receivables Purchase Agreement”), among each of the U.S. Originators and
the Contributor, and, if it purchases the same, shall contribute such purchased
accounts receivable, together with certain accounts receivable originated by
the Contributor, to the Company, as a capital contribution;


 


WHEREAS,
the Company will grant a security interest in the accounts receivable
contributed to it to Wachovia Bank National Association, not in its individual
capacity but solely as Collateral Agent (in such capacity, the “Collateral
Agent”) on behalf of the Secured Parties pursuant to the U.S. Receivables
Loan Agreement, dated as of the date hereof (such agreement, as it may be
amended, modified or otherwise supplemented from time to time, the “U.S.
Receivables Loan Agreement”), among the Company, Huntsman (Europe) BVBA, as
Master Servicer (the “Master Servicer”), Wachovia Bank National
Association, as Administrative Agent (in such capacity, the “Administrative
Agent”), the Collateral Agent and the several parties thereto from time to
time as Lenders, Funding Agents, Conduit Lenders or Committed Lenders; and


 


WHEREAS,
the Company, the Master Servicer, each  of  the  Local  Servicers
party  thereto, the
Administrative Agent, the Collateral Agent and the Contributor as Servicer
Guarantor have entered into a U.S. Servicing Agreement, dated as of the date
hereof (such agreement, as it may be amended, restated, modified or otherwise
supplemented from time to time, the “U.S. Servicing Agreement”),
pursuant to which the Master Servicer will agree to service and administer or
cause to be serviced or administered such accounts receivable on behalf of the
Company.


 


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


 


1.                                  DEFINITIONS


 


1.01                        Defined Terms. Capitalized
terms used herein shall, unless otherwise defined or referenced herein, have
the meanings assigned to such terms in Schedule 3 attached to the U.S.
Receivables Loan Agreement, which Schedule 3 is incorporated by
reference herein.


 


1.02                        Other
Definitional Provisions.


 


(a)                                 The words “hereof”,
“herein”, “hereunder” and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular 


 


1

















 


provision of this Agreement, and article, section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.


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


 


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


 


(d)                                 In this
Agreement, unless indicated otherwise, references (in any manner, including
generally, specifically, by name, by capacity, by role or otherwise) to a
Person include any individual, firm, partnership, body corporate,
unincorporated association, government, state or agency of a state, local or
municipal authority or government body, trust, foundation, joint venture or
association (in each case whether or not having separate legal personality).


 


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


 


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


 


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


 


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


 


(i)                                     In this
Agreement, unless indicated otherwise, general words introduced by the word “other”
are not to be given a restrictive meaning by reason of the fact that they are
preceded by words indicating a particular class of acts, matters or things, and
general words are not to be given a restrictive meaning by reason of the fact
that they are followed by particular examples intended to be embraced by the
general words.


 


(j)                                    In this Agreement,
unless indicated otherwise, a reference to a “day” means a period of 24 hours
running from midnight to midnight and a reference to a time of day is to London
time.


 


(k)                                 In this
Agreement, unless otherwise stated, in the computation of a period of time from
a specified date to a later specified date, the word “from” means “from and
including”, the words “to” and “until” each mean “to but excluding”, and the
word “within” means “from and excluding a specified date and to and including a
later specified date”.


 


2

















 


(l)                                     In this
Agreement headings are for convenience only and shall not affect the
interpretation of this Agreement.


 


(m)                             In this
Agreement, unless indicated otherwise, a reference (in any manner, including
generally, specifically, by name, by capacity, by role or otherwise) to a
Person shall include references to (i) his permitted successors,
transferees and assigns and any person deriving title under or through him,
whether in security or otherwise, and (ii) any Person into which such
Person may be merged or consolidated, or any company resulting from any merger,
conversion or consolidation or any Person succeeding to substantially all of
the business of that person.


 


2.                                  CONTRIBUTION
OF RECEIVABLES


 


2.01                        Contribution of
Receivables.


 


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


 


(i)                       all Eligible
Receivables originated by the Contributor on the applicable date of
contribution (the “Contribution Date”) from time to time and indentified
in the Originator Daily Report transmitted to the Master Servicer and included
in the Daily Report generated by the Master Servicer and transmitted to the
Administrative Agent electronically or by telecopier on the applicable
Contribution Date;


 


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


 


(iii)                 the Related Property;


 


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


 


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


 


(vi)                all rights of the
Contributor under the U.S. Receivables Purchase Agreement including, in respect
of each such agreement, (A) all rights of the Contributor to receive
monies due and to become due under or pursuant to such agreement, whether
payable as fees, expenses, costs or otherwise, (B) all rights of the
Contributor to receive proceeds of any insurance, indemnity, warranty or guaranty
with respect to such agreement, (C) any claims of the Contributor for
damages arising out of or for breach of or default under such agreement, (D) the
right of the Contributor to amend, waive or terminate such agreement, to
perform thereunder and to compel performance and otherwise exercise all
remedies thereunder and (E) all other rights, remedies, powers, privileges
and claims of the 


 


3

















 


Contributor under or in
connection with such agreement (whether arising pursuant to such agreement or
otherwise available to the Contributor at law or in equity), including the
rights of the Contributor to enforce such agreement and to give or withhold any
and all consents, requests, notices, directions, approvals, extensions or
waivers under or in connection therewith;


 


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


 


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


 


Such
property described in the foregoing clauses (i) through (viii) shall
be referred to collectively herein as the “Receivable Assets” and shall
be considered to be assets that have been contributed, transferred, assigned,
set over and otherwise conveyed by the Contributor to the Company immediately
upon completion of the purchase of any Receivables referred to in Section 2.01(a)(ii) above,
in accordance with the terms of the U.S. Receivables Purchase Agreement and
upon delivery to the Company of a Daily Report. 
Subject to the last sentence of Section 7.01 or 7.02
(as applicable), the contribution of Receivables by the Contributor to the
Company shall cease to the extent provided in Section 7.01 or 7.02
(as applicable).


 


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


 


(c)                                  In connection
with any transfer, assignment, conveyance and contribution pursuant to subsection
2.01(a), the Contributor hereby agrees to record and file, or cause to be
recorded and filed, at its own expense, financing statements or other similar
filings (and continuation statements with respect to such financing statements
or other similar filings 


 


4

















 


when applicable), (i) with respect to the
Contributed Receivables and (ii) with respect to any other Receivable
Assets for which an assignment or the creation of a security interest (as
defined in the applicable UCC or other similar applicable laws, legislation or
statute) may be perfected under the applicable UCC or other applicable laws,
legislation or statute by such filing, in each case meeting the requirements of
applicable law in such manner and in such jurisdictions as are necessary to
perfect and maintain the perfection of the transfer, assignment, conveyance and
contribution of such Contributed Receivables and any other Receivable Assets
related thereto to the Company, and to deliver to the Company (x) on or
prior to the date hereof, a photocopy, certified by a Responsible Officer of
the Contributor to be a true and correct copy, of each such financing statement
or other filing to be made on or prior to the date hereof and (y) within
ten (10) days after the date hereof, a file-stamped copy or certified
statement of such financing statement (or the similar filing) or other evidence
of such filing.


 


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


 


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


 


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


 


5

















 


2.03                        Intentionally
Omitted.


 


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


 


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


 


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


 


(a)                                 Adjustment
Payment Obligation. In the event of a breach of any of the
representations and warranties contained in Section 4.02 in respect
of any Contributed Receivable or if the Company’s interest in any Contributed
Receivable is not a full legal and beneficial ownership, the Contributor shall,
within 30 days of the earlier of its knowledge or receipt of written notice of
such breach or defect from the Company, remedy the matter giving rise to such
breach of representation or warranty if such matter is capable of being
remedied. If such matter is not capable of being remedied or is not so remedied
within said period of 30 days, the Contributor shall repurchase the relevant
Contributed Receivable from the Company at a repurchase price (without
duplication of any Contributor Dilution Adjustment Payments made pursuant to Section 2.05
hereof), equal to the original Principal Amount of such Contributed Receivable
less Collections received by the Company in respect of such Contributed
Receivable (the “Contributor Adjustment Payment”), which payment shall
be made to the Company Concentration Account. Following the payment of a
Contributor Adjustment Payment hereunder, the Company shall pay to the
Contributor all Collections received subsequent to such repurchase with respect
to such repurchased Receivable. The parties agree that if there is a breach of
any of the representations and warranties of the Contributor contained in Section 4.02
in respect of or concerning any Contributed Receivable, the Contributor’s
obligation to pay the Contributor Adjustment Payment under this Section 2.06
is a reasonable pre-estimate of loss and not a penalty (and neither the


 


6
















 


Company nor any other person or entity having an
interest in this Agreement through the Company shall be entitled to any other
remedies as a consequence of any such breach).


 


(b)           Special Indemnification. In addition
to its obligations under Section 8.02 hereunder, the Contributor
agrees to pay, indemnify and hold harmless (without duplication of any
Contributor Dilution Adjustment Payments made pursuant to Section 2.05
hereof) the Company from any loss, liability, expense, damage or injury which
may at any time be imposed on, incurred by or asserted against the Company in
any way relating to or arising out of (i) any Contributed Receivable
becoming subject to any defense, dispute, offset or counterclaim of any kind
(other than as expressly permitted by this Agreement or the U.S. Receivables
Loan Agreement) or (ii) the Contributor breaching any covenant contained
herein with respect to any Contributed Receivable and such Contributed
Receivable (or a portion thereof) ceasing to be an Eligible Receivable (each of
the foregoing events or circumstances being a “Contributor Indemnification
Event”). The amount of such indemnification shall be equal to the original
Principal Amount of such Contributed Receivable less Collections received by
the Company in respect of such Contributed Receivable (the “Contributor
Indemnification Payment”). Such payment shall be made to the Company
Concentration Account on or prior to the 10th Business Day after the day the
Company requests such payment or the Contributor obtains knowledge thereof
unless such Contributor Indemnification Event shall have been cured on or
before such 10th Business Day; provided, however, that in the
event that (x) an Originator Termination Event with respect to the
Contributor has occurred and is continuing or (y) the Company shall be
required to make a payment with respect to such Contributed Receivable pursuant
to Section 29 of the U.S. Receivables Loan Agreement and the Company has
insufficient funds to make such a payment, the Contributor shall make such
payment immediately. The Company shall have no further remedy against the
Contributor in respect of such a Contributor Indemnification Event unless the
Contributor fails to make a Contributor Indemnification Payment on or prior to
such 10th Business Day or on such earlier day in accordance with the proviso
set forth in this subsection 2.06(b). Following the payment of a
Contributor Indemnification Payment, the Company shall pay to the Contributor
all Collections received subsequent to such payment with respect to the
Contributed Receivable in respect of which a Contributor Indemnification
Payment is made.


 


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


 


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


 


2.09         Power of Attorney. The
Contributor authorizes each of the Company and the Collateral Agent, and hereby
irrevocably appoints each of the Company and the Collateral Agent (on behalf of
the Secured Parties), as its attorney-in-fact coupled with an interest, with
full power of substitution and with full authority in place of the Contributor,
to take any and all steps in the 


 


7

















 


Contributor’s name and on behalf of the Contributor,
that are necessary or desirable, in the determination of the Company or the
Collateral Agent (as applicable), to collect amounts due under the Contributed
Receivables, including: (a) endorsing the Contributor’s name on checks and
other instruments representing Collections of Contributed Receivables and
enforcing the Receivable Assets related thereto; (b) taking any of the
actions provided for under Section 7.03; and (c) enforcing the
Receivable Assets, including to ask, demand, collect, sue for, recover,
compromise, receive and give aquittance and receipts for moneys due and to
become due under or in connection with therewith and to file any claims or take
any action or institute any proceedings that the Company or the Collateral
Agent (as applicable) (or any designee thereof) may deemed to be necessary or
desirable for the collection thereof or to enforce compliance with the other
terms and conditions of, or to perform any obligations or enforce any rights of
the Contributor in respect of, the Receivable Assets. The rights under this Section 2.09
shall not be exercisable with respect to the Contributor unless an Originator
Termination Event has occurred and is continuing with respect to the
Contributor or a Program Termination Event or a Termination Event has occurred
and is continuing.


 


3.             CONDITIONS TO CONTRIBUTIONS


 


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


 


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


 


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


 


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


 


(d)           the Company shall have
received copies of fully executed counterparts of this Agreement, the
Termination and Release Agreement, the U.S. Receivables Loan Agreement, the
U.S. Servicing Agreement and the U.S. Receivables Purchase Agreement;


 


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


 


8

















 


(i)    from Counsel to each U.S.
Originator in form and substance satisfactory to the Company, the
Administrative Agent, the Collateral Agent and each Funding Agent; and


 


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


 


(f)            the Company shall have
received the Policies of the Contributor and each U.S. Originator;


 


(g)           the Company shall have
received copies of proper financing statements, which will be filed on or prior
to the date hereof, naming the Contributor and each U.S. Originator as the
debtor in favor of, in each case, the Company as the secured party or other
similar instruments or documents as may be necessary or in the reasonable
opinion of the Company, the Administrative Agent, the Collateral Agent or any
Funding Agent, desirable under the UCC of all appropriate jurisdictions to
perfect the Company’s ownership interest in the Receivable Assets contributed
hereunder;


 


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


 


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


 


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


 


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


 


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


 


(m)          the Administrative Agent
shall have received copies of the documents, filings or other information
provided to the Company pursuant to this Section 3.01;


 


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


 


9

















 


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


 


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


 


(a)           the representations and
warranties of the Contributor contained in Section 4.01 and Section 4.02
shall be true and correct on and as of such Contribution Date as though made on
and as of such date, except insofar as such representations and warranties in Section 4.01
are expressly made only as of another date (in which case they shall be true
and correct as of such other date);


 


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


 


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


 


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


 


(e)           if applicable, all
conditions precedent to the sale of such Eligible Receivables from an U.S.
Originator to the Contributor contained in the U.S. Receivables Purchase
Agreement shall have been satisfied;


 


provided, however,
that the failure of the Contributor to satisfy any of the foregoing conditions
shall not prevent the Contributor from subsequently contributing Eligible
Receivables originated by it, or purchased by it pursuant to the U.S.
Receivables Purchase Agreement, upon satisfaction of all such conditions; provided,
further, that if a dividend with respect to the Contribution Value shall
have been paid with respect to the Receivables indentified on a Daily Report,
notwithstanding that the applicable Daily Report was not signed by or on behalf
of the Master Servicer or the related Originator and regardless of whether all
the conditions precedent set forth in Section 3.01 or this Section 3.02
were satisfied on the related Contribution Date, the contribution and
assignment of such Receivables shall be effective as of the related
Contribution Date (without prejudice to any claim of the Company against the
Contributor or the applicable U.S. Originator).


 


3.03         Conditions Precedent to the
Contributor’s Obligations on the Initial Contribution Date and each
Contribution Date Thereafter. The obligations of the
Contributor on the date hereof and each Contribution Date thereafter shall be
subject to the conditions precedent, which may be waived by the Contributor,
that the Contributor shall have received on or before the date hereof the
following, each in form and substance satisfactory to the Contributor:


 


10

















 


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


 


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


 


4.             REPRESENTATIONS AND WARRANTIES


 


4.01         Representations and
Warranties of the Contributor. The Contributor represents
and warrants to the Company as of the date hereof and on each Contribution
Date, except with respect to those related to a specific date, that:


 


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


 


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


 


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


 


11

















 


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


 


(e)           Litigation; Compliance with
Laws.


 


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


 


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


 


(f)            Agreements.


 


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


 


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


 


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


 


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


 


(i)            Tax Returns. It has filed
or caused to be filed all material tax returns and has paid or caused to be
paid or made adequate provision for all taxes due and payable by it and all
assessments received by it except to the extent that (i) its obligation to
make such filing or payment is being contested in good faith by appropriate
proceedings and reserves required in conformity with GAAP with respect thereto,
if any, have been provided on the books of the Contributor or (ii) a
failure with respect to such filing or payment could not reasonably be expected
to result in a Material Adverse Effect with respect to it.


 


(j)            ERISA Matters.


 


12

















 


(i)        it and each of its ERISA
Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the regulations and published interpretations
thereunder with respect to any Plan of the Contributor or any of its ERISA
Affiliates, except for such noncompliance which could not reasonably be
expected to result in a Material Adverse Effect with respect to it;


 


(ii)       no Reportable Event has
occurred as to which the Contributor or any of its ERISA Affiliates was
required to file a report with the PBGC, other than reports for which the
30-day notice requirement is waived, reports that have been filed and reports
the failure of which to file would not reasonably be expected to result in a
Material Adverse Effect with respect to it;


 


(iii)      as of the date hereof, the
present value of all benefit liabilities under each Plan of the Contributor or
any of its ERISA Affiliates (on an ongoing basis and based on those assumptions
used to fund such Plan) did not, as of the last valuation report applicable
thereto, exceed the value of the assets of such Plan;


 


(iv)     neither it nor any of its
ERISA Affiliates has incurred any Withdrawal Liability that could reasonably be
expected to result in a Material Adverse Effect with respect to it; and


 


(v)      neither it nor any of its
ERISA Affiliates has received any notification that any Multiemployer Plan is
in reorganization or has been terminated within the meaning of Title IV of
ERISA, or that a reorganization or termination has resulted or could reasonably
be expected to result, through increases in the contributions required to be
made to such Plan or otherwise, in a Material Adverse Effect with respect to
it.


 


(k)           Accounting Treatment. Except to the
extent otherwise required by law or applicable accounting rules, the
Contributor will not prepare any financial statements that shall account for
the transactions contemplated hereby, nor will it in any other respect account
for the transactions contemplated hereby, in a manner that is inconsistent with
the Company’s ownership interest in the Receivable Assets or with the
assumptions and factual recitations set forth in the Specified Bankruptcy
Opinion Provisions.  The Contributor
intends to treat the contribution of the Contributed Receivables hereunder as a
contribution of such Receivables for all legal purposes.


 


(l)            Intentionally Omitted.


 


(m)          Intentionally Omitted.


 


(n)           Books and Records. The offices
at which the Contributor keeps its records concerning the Contributed
Receivables (i) are located as set forth on Schedule 2 hereto or (ii) are
in locations as to which the Contributor has notified the Company of the
location thereof in accordance with Section 5.06.


 


(o)           Bulk Sales Act. No
transaction contemplated hereby with respect to the Contributor requires compliance
with, or will be subject to avoidance under, any bulk sales act or similar law
in the United States.


 


13

















 


(p)           Names. On the date
hereof, the legal name of the Contributor is as set forth in this Agreement.
The Contributor does not have any trade names, fictitious names, assumed names
or “doing business as” names.


 


(q)           Solvency. No Insolvency
Event with respect to the Contributor or any U.S. Originator has occurred and
the contribution, assignment, conveyance and transfer of the Contributed
Receivables by the Contributor to the Company has not been made in
contemplation of the occurrence thereof. Both prior to and after giving effect
to the transactions occurring on the date hereof and after giving effect to
each subsequent transaction contemplated hereunder, including any contribution
of Contributed Receivables (i) the fair value of the assets of the
Contributor and each U.S. Originator, taken individually at a fair valuation,
will exceed the debts and liabilities, subordinated, contingent or otherwise,
of the Contributor or such U.S. Originator, as applicable; (ii) the
present fair saleable value of the property of the Contributor and each U.S.
Originator, taken individually and not on a consolidated basis, will be greater
than the amount that will be required to pay the probable liability of the
Contributor or such U.S. Originator, as applicable, on its debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (iii) the Contributor will be
able to pay its debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured; and (iv) the
Contributor will not have unreasonably small capital with which to conduct the
business in which it is engaged as such business is now conducted and is
proposed to be conducted. For all purposes of clauses (i) through (iv) above,
the amount of contingent liabilities at any time shall be computed as the
amount that, in the light of all the facts and circumstances existing at such
time, represents the amount that can reasonably be expected to become an actual
or matured liability. The Contributor does not intend to, nor does it believe
that it will nor that any U.S. Originator will, incur debts beyond its or their
ability to pay such debts as they mature, taking into account the timing of and
amounts of cash to be received by the Contributor or each U.S. Originator, as
the case may be, and the timing of the amounts of cash to be payable on or in
respect of its Indebtedness.


 


(r)            No Originator Termination
Event. No Potential Originator Termination Event or Originator Termination
Event with respect to the Contributor or any U.S. Originator has occurred and is
continuing.


 


(s)           No Program Termination Event. No Potential
Program Termination Event or Program Termination Event shall have occurred and
be continuing.


 


(t)            No Fraudulent Transfer. It is not
entering into this Agreement with the actual or constructive intent to hinder,
delay, or defraud its present or future creditors and is receiving reasonably
equivalent value and fair consideration for the Contributed Receivables.


 


(u)           Collection Procedures. It, and each
U.S. Originator of Contributed Receivables, has in place the Policies and has
not acted in contravention of any such Policies with respect to the Contributed
Receivables.


 


(v)           No Termination Event. No Potential
Termination Event or Termination Event has occurred and is continuing.


 


(w)          No Material Adverse Effect. Since December 31,
2008, no event has occurred which has had a Material Adverse Effect with
respect to it.


 


14

















 


(x)            No Foreclosure Act. No action or
proceeding has been brought seeking to foreclose on the Contributor’s
membership interest in the Company.


 


(y)           Anti-Terrorism Law.


 


(i)        Neither the Contributor nor,
to the actual knowledge of a Responsible Officer of the Contributor, any of its
Affiliates is in violation of any laws relating to terrorism or money
laundering (“Anti-Terrorism Law”), including Executive Order No. 13224
on Terrorist Financing, effective September 24, 2001 (the “Executive
Order”), and the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law
107-56.


 


(ii)       Neither the Contributor nor,
to the actual knowledge of a Responsible Officer of the Contributor, any
Affiliate or broker or other agent of the Contributor, acting or benefiting in
any capacity in connection with its obligations hereunder is any of the
following:


 


(A)          A person that
is listed in the annex to, or it otherwise subject to the provisions of, the
Executive Order;


 


(B)           A person owned
or controlled by, or acting for on or behalf of, any person that is listed in
the annex to, or is otherwise subject to the provisions of, the Executive
Order;


 


(C)           A person with
which the Contributor is prohibited from dealing or otherwise engaging in any
transaction by any Anti-Terrorism Law;


 


(D)          A person that
commits, threatens or conspires to commit or supports “terrorism” as defined in
the Executive Order; or


 


(E)           A person that
is named as a “specially designated national and blocked person” on the most
current list published by the U.S. Treasury Department, Office of Foreign
Assets Control at its official website or any replacement website or other
replacement official publication of such list.


 


(z)            Enforceability of Contracts.  Each Contract with respect to each
Contributed Receivable is effective to create, and has created, a legal, valid
and binding obligation of the related Obligor to pay the Principal Amount of
such Contributed Receivable created thereunder and any accrued interest
thereon, enforceable against the Obligor in accordance with its terms, except
as such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws relating to or limiting creditors’ rights
generally and by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).


 


The
representations and warranties as of the date made set forth in this Section 4.01
shall survive the transfer, assignment, conveyance and contribution of the
Contributed Receivables and the other Receivable Assets related thereto to the
Company. Upon discovery by a Responsible Officer of the Company or the Master
Servicer or by a Responsible Officer of the Contributor of a breach of any of
the foregoing representations and warranties, the party discovering such breach


 


15

















 


shall
give prompt written notice to the Administrative Agent and to the Master
Servicer, the Company or the Contributor, as the case may be.


 


4.02         Representations and
Warranties of the Contributor Relating to the Contributed Receivables. The
Contributor hereby represents and warrants to the Company on each Contribution
Date with respect to the Contributed Receivables as of the relevant
Contribution Date:


 


(a)           Receivables Description. Each
Originator Daily Report delivered, transmitted or received by the Contributor
and referred to in subsection 2.01(a) of this Agreement sets forth
in all material respects an accurate and complete listing of all Contributed
Receivables to be contributed to the Company on such Contribution Date on such
Contribution Date and the information contained therein in accordance with
Schedule 11 to the U.S. Receivables Loan Agreement with respect to each such
Contributed Receivable is true and correct as of such date.


 


(b)           No Liens. Each
Contributed Receivable existing on the date hereof or, in the case of
Receivables contributed, transferred, assigned and conveyed to the Company
after the date hereof, on such Contribution Date, has been contributed,
transferred, assigned and conveyed to the Company free and clear of any Liens
(other than Liens created pursuant to the Transaction Documents).


 


(c)           Eligible Receivable. On the date
hereof, each Contributed Receivable that is included in the Daily Reports dated
as of the date hereof is an Eligible Receivable on the date hereof and, in the
case of Contributed Receivables contributed to the Company on a Contribution
Date after the date hereof, each such Contributed Receivable contributed to the
Company on such Contribution Date is an Eligible Receivable on such
Contribution Date.


 


(d)           Filings. All filings
and other acts (including notifying related Obligors of the assignment of a
Contributed Receivable, if applicable) necessary or advisable under the UCC or
under other applicable laws of jurisdictions outside the United States (to the
extent applicable) shall have been made or performed in order to grant the
Company on the applicable Contribution Date a full legal and beneficial
ownership interest in respect of such Contributed Receivables then existing or
thereafter arising free and clear of any Liens.


 


(e)           Policies. Since the
date hereof, there have been no material changes in the Policies, other than as
permitted hereunder.


 


(f)            True Contribution. Title to each
Contributed Receivable will be vested in the Company as contemplated in subsection
4.02(b) and subsection 4.02(d), and such Contributed
Receivables will not form part of the estate of the Contributor or the relevant
U.S. Originator upon a bankruptcy of the Contributor or the relevant U.S.
Originator.


 


The
representations and warranties as of the date made set forth in this Section 4.02
shall survive the contribution, transfer, assignment and conveyance of the
Contributed Receivables to the Company. Upon discovery by a Responsible Officer
of the Company or the Master Servicer or a Responsible Officer of the
Contributor of a breach of any of the representations and warranties (or of any
Contributed Receivable encompassed by the representation and warranty in subsection
4.02(c) not being an Eligible Receivable as of the relevant
Contribution Date), the party discovering such breach shall give prompt written
notice to the Administrative Agent and the respective other parties.


 


16
















 


4.03                          Representations
and Warranties of the Company. The Company represents and
warrants as to itself as follows:


 


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


 


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


 


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


 


(d)                                 Accounting
Treatment. Except to the extent otherwise required by law or
accounting rules, the Company will not prepare any financial statements that
shall account for the transactions contemplated hereby, nor will it in any
other respect account for the transactions contemplated hereby, in a manner
that is inconsistent with the Company’s ownership interest in the Contributed
Receivables and the Company’s grant to the Collateral Agent of a security
interest therein.


 


(e)                                  Contributor. The
Contributor is the sole member in the Company, and the Contributor’s membership
interests in the Company are owned free and clear of all Liens, other than any
liens in favor of the Company arising under the Limited Liability Company
Agreement, provided that the Contributor may pledge any or all of its
membership interests to the secured party under the Pledge Agreement.


 


17

















 


5.                                       AFFIRMATIVE
COVENANTS


 


The
Contributor hereby agrees that, so long as there are any amounts outstanding
with respect to Contributed Receivables or until the Final Payout Date,
whichever is later, the Contributor shall, and shall cause each U.S. Originator
to:


 


5.01                          Financial
Statements; Reports; etc.:


 


(a)                                  Furnish to the
Company, within 150 days after the end of each fiscal year, the balance sheet
and related statements of income, members’ equity and cash flows showing the
financial condition of the Contributor as of the close of such fiscal year and
the results of its operations during such year, all audited by the Contributor’s
Independent Public Accountants and accompanied by an opinion of such
accountants (which shall not be qualified in any material respect) to the
effect that such financial statements fairly present in all material respects
the financial condition and results of operations of the Contributor in
accordance with GAAP consistently applied;


 


(b)                                 Furnish to the
Company, within 60 days after the end of each of the first three fiscal
quarters of each fiscal year, the Contributor’s unaudited balance sheet and
related statements of income, members’ equity and cash flows for the period
from the beginning of such fiscal year to the end of such quarter, all
certified by a Responsible Officer of the Contributor;


 


(c)                                  Furnish to the
Company, together with the financial statements required pursuant to clauses (a) and
(b) above, a compliance certificate signed by a Responsible Officer of the
Company stating that (i) the attached financial statements have been
prepared in accordance with GAAP and accurately reflect the financial condition
of the Company and (ii) to the best of such Responsible Officer’s
knowledge, no Termination Event, Originator Termination Event or Program
Termination Event exists, or if any Termination Event, Originator Termination
Event or Program Termination Event exists and is continuing, stating the nature
and status thereof;


 


(d)                                 Furnish to the
Company upon request, promptly upon the furnishing thereof to the members of
the Contributor, copies of all financial statements, financial reports and proxy
statements so furnished;


 


(e)                                  Furnish to the
Company, promptly, all information, documents, records, report, certificates,
opinions and notices received by the Contributor from an U.S. Originator under
the U.S. Receivables Purchase Agreement;


 


(f)                                    Intentionally
Omitted;


 


(g)                                 Furnish to the
Company, promptly, from time to time, such historical information, including
aging and liquidation schedules, as the Company, Administrative Agent or any
Funding Agent may reasonably request;


 


(h)                                 Furnish to the
Company, promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Contributor, or
compliance with the terms of any Transaction Document, in each case as the
Company, Administrative Agent or any Funding Agent may reasonably request; and


 


(i)                                     Furnish to the
Administrative Agent copies of all notices, documents or other information
provided to the Company pursuant to this Section 5.01.


 


5.02                          Compliance with
Law and Policies.


 


18

















 


(a)                                  Comply with all
Requirements of Law and material Contractual Obligations to which it is subject
and which are applicable to it except to the extent that non-compliance would
not reasonably be likely to result in a Material Adverse Effect with respect to
it; and


 


(b)                                 Perform its
obligations in accordance with the Policies, as amended from time to time in
accordance with the Transaction Documents, in regard to the Contributed
Receivables, the other Receivable Assets and the related Contracts.


 


5.03                           Preservation of
Company Existence. (i) Preserve and maintain its company
existence, rights and privileges, if any, in the jurisdiction of its
organization and (ii) qualify and remain qualified in good standing as a
foreign company in each jurisdiction where the nature of its business so
requires, except where the failure so to qualify would not, individually or in
the aggregate with other such failures, have a Material Adverse Effect with
respect to it.


 


5.04                          Separate
Company Existence.


 


(a)                                  Maintain its
deposit account or accounts separate from those of the Company and ensure that
its funds will not be diverted to the Company, nor will such funds be
commingled with the funds of the Company;


 


(b)                                 To the extent
that it shares any officers or other employees with the Company, the salaries
of and the expenses related to providing benefits to such officers and other
employees shall be fairly allocated among it and the Company, and it and the
Company shall bear their fair shares of the salary and benefit costs associated
with all such common officers and employees;


 


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


 


(d)                                 Maintain office
space separate from the office space of the Company (but which may be located
at the same address as the Company). To the extent that it and the Company have
offices in the same location, there shall be a fair and appropriate allocation
of overhead costs between them, and each shall bear its fair share of such
expenses;


 


(e)                                  Issue financial
statements separate from any financial statements issued by the Company;


 


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


 


19

















 


(g)                                 Except as set
forth in the Transaction Documents, not assume or guarantee any of the
liabilities of the Company; and


 


(h)                                 Take, or
refrain from taking, as the case may be, all other actions that are necessary
to be taken or not to be taken in order (i) to ensure that the assumptions
and factual recitations set forth in the Specified Bankruptcy Opinion Provisions
remain true and correct with respect to it (and, to the extent within its
control, to ensure that the assumptions and factual recitations set forth in
the Specified Bankruptcy Opinion Provisions remain true and correct with
respect to the Company) and (ii) to comply with those procedures described
in such provisions that are applicable to it.


 


5.05                           Inspection of
Property; Books and Records; Discussions. Keep proper books of
records and account in which entries in conformity with GAAP shall be made of
all dealings and transactions in relation to its business and activities, and
permit representatives of the Company, the Administrative Agent and the Funding
Agents upon reasonable advance notice to visit and inspect any of its
properties and examine and make abstracts from any of its books and records
during normal business hours on any Local Business Day and as often as may
reasonably be requested, subject to the Contributor’s or such U.S. Originator’s
normal and reasonable security and confidentiality requirements generally
applicable to visitors at such property and to discuss the business,
operations, properties and financial condition of the Contributor and each U.S.
Originator with officers and employees of the Contributor and with its Independent
Public Accountants.


 


5.06                           Location of
Records. Keep the offices where it keeps the records concerning the Receivable
Assets (and all original documents relating thereto), at the locations referred
to for it on Schedule 2 hereto or upon 60 days’ prior written notice to
the Company and the Administrative Agent, at such other location as specified
in such notice.


 


5.07                           Computer Files
and other Documents. At its own cost and expense, retain the ledger
used by it as a master record of the Obligors and retain copies of all
documents relating to each Obligor as custodian and agent for the Company and
other Persons with interests in the Contributed Receivables originated by it,
as well as retain all Originator Documents.


 


5.08                           Obligations. Pay,
discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all its obligations of whatever nature
(including, without limitation, all taxes, assessments, levies and other
governmental charges imposed on it), except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Contributor. Defend the right, title and interest of the Company
in, to and under the Receivable Assets, whether now existing or hereafter
created, against all claims of third parties claiming through the Contributor.
The Contributor will duly fulfill all obligations on its part to be fulfilled
under or in connection with each Receivable and the related Contract and will
do nothing to materially impair the rights of the Company in such Receivable.


 


5.09                           Collections.  Instruct each Obligor to make payments in
respect of its Contributed Receivables to a Collection Account and to comply in
all material respects with procedures with respect to Collections reasonably
specified from time to time by the Company with the written consent of the
Administrative Agent or by the Administrative Agent. In the event that any
payments in respect of any such Contributed Receivables are made directly to
the Contributor or an U.S. Originator (including, without limitation, any
employees thereof or independent contractors employed thereby), the Contributor
shall, and shall cause such U.S. 


 


20

















 


Originator to, within one (1) Local Business
Day of receipt thereof, deliver or deposit such amounts to a Collection Account
and, prior to forwarding such amounts, the Contributor shall, or shall cause
such U.S. Originator to, as applicable, hold such payments in trust for the
account and benefit of the Company.


 


5.10                          Furnishing
Copies, Etc.  Furnish to
the Company and the Administrative Agent:


 


(a)                                  Within five (5) Local
Business Days of the Company’s or the Administrative Agent’s request, a
certificate of a Responsible Officer of the Contributor, certifying, as of the
date thereof, to the knowledge of such officer, that no Potential Originator
Termination Event or Originator Termination Event with respect to it or of any
Potential Program Termination Event or Program Termination Event has occurred
and is continuing or if one has so occurred, specifying the nature and extent
thereof and any corrective action taken or proposed to be taken with respect
thereto;


 


(b)                                 Promptly after
a Responsible Officer of the Contributor obtains knowledge of the occurrence of
any Originator Termination Event or Potential Originator Termination Event with
respect to it or any Potential Program Termination Event or Program Termination
Event, written notice thereof;


 


(c)                                  Promptly
following request therefor, such other information, documents, records or
reports regarding or with respect to the Contributed Receivables purchased from
an U.S. Originator, as the Company or the Administrative Agent may from time to
time reasonably request; and


 


(d)                                 Promptly upon
determining that any Contributed Receivable is not an Eligible Receivable,
written notice of such determination and (if applicable) the date such
Contributed Receivable ceased to be an Eligible Receivable.


 


5.11                           Intentionally
Omitted.


 


5.12                           Assessments.  Pay before the same become delinquent and
discharge all taxes, assessments, levies and other governmental charges imposed
on it except such taxes, assessments, levies and governmental charges which are
being contested in good faith and for which the Contributor has set aside on
its books adequate reserves.


 


5.13                           Intentionally
Omitted.


 


5.14                           Notices. Promptly give
written notice to the Administrative Agent, the Company and each Funding Agent
of the occurrence of any Liens on any Contributed Receivables (other than Liens
created pursuant to the Transaction Documents) or a Potential Termination Event
or Termination Event, including the statement of a Responsible Officer of the
Contributor setting forth the details of such Early Amortization Period and the
action taken, or which the Contributor proposes to take, with respect thereto.


 


5.15                           Bankruptcy.  Cooperate with the Company, each Funding
Agent, the Administrative Agent and the Collateral Agent in making any
amendments to the Transaction Documents and take, or refrain from taking, as
the case may be, all other actions deemed reasonably necessary by such Funding
Agent, Administrative Agent and/or Collateral Agent in order to comply with the
structured finance statutory exemption set forth in legislative amendments to
the U.S. Bankruptcy Code at or any time after such amendments are enacted into 


 


21

















 


law; provided, however, that it shall
not be required to make any amendment or to take, or omit from taking, as the
case may be, any action which it reasonably believes would have the effect of
materially changing the economic substance of the transaction contemplated by
the Transaction Documents on the date hereof.


 


5.16                          Further Action. In addition
to the foregoing:


 


(a)                                  The Contributor
agrees that from time to time, at its expense, it will promptly execute and
deliver all further instruments and documents, and take all further action
(including notifying the related Obligors to the extent necessary to perfect
the ownership interest of the Company in the Contributed Receivables) that may
be necessary in the Contributor’s reasonable judgment or that the Company, the
Collateral Agent or the Administrative Agent may reasonably request, in order
to protect the Company’s or the Collateral Agent’s right, title and interest in
the Contributed Receivables,  free and clear of any Liens
(other than Liens created pursuant to the Transaction Documents), or to enable
the Company, the Collateral Agent or the Administrative Agent to exercise or
enforce any of its rights in respect thereof. Without limiting the generality
of the foregoing, the Contributor will, and will cause each U.S. Originator to,
upon the request of the Company, the Collateral Agent or the Administrative
Agent (i) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices, as may be necessary
or, in the opinion of the Company, the Collateral Agent or the Administrative
Agent, advisable to protect the Company’s ownership interest or the Collateral
Agent’s security interest in the Contributed Receivables and (ii) obtain
the agreement of any Person having a Lien on any Contributed Receivables owned
by the Contributor or an U.S. Originator to release such Lien upon the
contribution of any such Contributed Receivables to the Company;


 


(b)                                 Until the
termination of this Agreement, the Contributor hereby irrevocably authorizes
the Company, the Collateral Agent and the Administrative Agent to file one or
more financing or continuation statements (and other similar instruments), and
amendments thereto, relative to all or any part of the Receivable Assets; and


 


(c)                                  If the
Contributor fails to perform any of its agreements or obligations under this
Agreement, following notice to the Contributor detailing such delinquency, the
Company, the Collateral Agent and the Administrative Agent may (but shall not
be required to) perform, or cause performance of, such agreements or
obligations, and the expenses of the Company, the Collateral Agent or the
Administrative Agent incurred in connection therewith shall be payable by the
Contributor as provided in Section 8.02. Each of the Company, the
Collateral Agent or the Administrative Agent shall promptly notify the
Contributor after any such performance; provided, however, that
the failure to give such notice shall not affect the validity of any such
performance.


 


5.17                           Marking of
Records. The Contributor will, and will cause each U.S. Originator to,
identify on its extraction records relating to the Contributed Receivables from
its master database of receivables that the Contributed Receivables and the
Receivable Assets related thereto have been contributed to the Company, and
thereupon a security interest granted by the Company to the Collateral Agent
(on behalf of the Secured Parties).  The
Contributor agrees that from time to time it will promptly execute and deliver
all instruments and documents, and take all further action, that the Company,
the Collateral Agent or the Administrative Agent may reasonably request in
order to perfect, protect or more fully evidence the Contributor’s ownership
interest and the Collateral Agent’s first priority perfected security interest
in the Contributed Receivables (for the benefit of the Secured Parties).


 


22

















 


5.18                           Intercreditor
Agreements. With respect to material secured credit
facilities, the Contributor will enter into and procure intercreditor
agreements, on terms reasonably acceptable to the Company, each Funding Agent,
the Administrative Agent and their respective assigns, to the extent reasonably
requested by any Funding Agent or the Administrative Agent. In addition, with respect
to any other credit facility secured by a location or locations which contain
information related to the Receivable Assets, the Contributor will use its
commercially reasonable efforts to procure or cause to be procured a landlord
estoppel or landlord access letter, as appropriate.


 


5.19                           Enforcement of
Agreements. The Contributor shall enforce its rights under
each Origination Agreement, including, without limitation, the right to receive
Adjustment Payments and indemnification thereunder.


 


6.                                       NEGATIVE
COVENANTS


 


The
Contributor hereby agrees that, so long as there are any amounts outstanding
with respect to Contributed Receivables or until the Final Payout Date,
whichever is the later, the Contributor shall not, and shall not permit any
U.S. Originator to:


 


6.01                           Limitations on
Transfers of Contributed Receivables, Etc. At any time attempt to
recontribute, reconvey, reassign, re-transfer or otherwise purport to dispose
of or attempt to contribute, sell, convey, assign, transfer or otherwise
dispose of any of the Contributed Receivables or any Receivable Assets relating
thereto, except as contemplated by the Transaction Documents.


 


6.02                           Extension or
Amendment of Contributed Receivables. Extend payment terms, make
any Dilution Adjustment to, rescind, cancel, amend or otherwise modify, or
attempt or purport to extend, amend or otherwise modify, the terms of any
Contributed Receivables except in accordance with Section 2.05.


 


6.03                           Change in
Payment Instructions to Obligors or in Collection Account Banks.  Instruct any Obligor to make any payments
with respect to any Contributed Receivables originated by it other than by
check or wire transfer to a Collection Account; or add or terminate any bank as
a Collection Account Bank unless such bank enters into a Collection Account
Agreement.


 


6.04                           Change in Name. Change its
name, use an additional name, change its identity or company structure or
change its form or jurisdiction of organization unless at least 60 days’ prior
to the date hereof of any such change it delivers to the Company, the
Collateral Agent and the Administrative Agent such documents, instruments or
agreements as are necessary to reflect such change and to continue the
perfection of the Company’s ownership interest and the Collateral Agent’s
security interest in the Contributed Receivables.


 


6.05                           Policies.  Make any change or modification (or permit
any change or modification to be made) in any material respect to the Policies,
except (a) if such changes or modifications are necessary under any
Requirement of Law, or (b) if such change or modification, other than a
change or modification permitted pursuant to clause (a) above, would
reasonably be expected to have a Material Adverse Effect, with the consent of
each Funding Agent.


 


23

















 


6.06                           Modification of
Legend. Delete or otherwise modify the information related to the ownership
of the Receivable Assets contained in the extraction records referred to in
subsection 2.01(d) of the U.S. Receivables Purchase Agreement.


 


6.07                           Accounting for
Contributions. Except as otherwise required by law, prepare any
financial statements which shall account for the transactions contemplated
hereby in any manner other than as a contribution of the Contributed
Receivables to the Company or in any other respect account for or treat the
transactions contemplated hereby (including for financial accounting purposes,
except as required by law) in any manner other than as contribution of the
Contributed Receivables to the Company.


 


6.08                           Instruments. Unless
delivered to the Collateral Agent, take any action to cause any Contributed
Receivable not evidenced by an “instrument” (as defined in Section 9-102(a)(47)
of the applicable UCC) upon origination to become evidenced by an instrument, except
in connection with the enforcement or collection of a Defaulted Receivable.


 


6.09                           Ineligible
Receivables. Without the prior written approval of the Company,
take any action relating to such Contributed Receivable which to its knowledge
would cause, or would permit such Contributed Receivable to cease to be an
Eligible Receivable, except as otherwise expressly provided by this Agreement.


 


6.10                           Business of the
Contributor. Fail to maintain and operate the business
currently conducted by the Contributor and the business activities reasonably
incidental or related thereto in the chemical business, if such failure would
reasonably be expected to result in a Material Adverse Effect with respect to
it.


 


6.11                           Limitation on
Fundamental Changes.  Except to
the extent permitted by Section 37.3 of the U.S. Receivables Loan
Agreement or Section 6.11 of the U.S. Receivables Purchase Agreement,
consolidate with or merge into any other corporation or convey, transfer or
dispose of its properties and assets substantially as an entirety to any
Person, or engage in any corporate restructuring or reorganization, or
liquidate.


 


6.12                           Offices. Move the
location of the Contributor’s offices where it keeps its records with respect
to the Contributed Receivables without (a) providing thirty (30) days’
prior written notice to the Company, the Collateral Agent and each Funding
Agent and (b) taking all actions reasonably requested by the Collateral
Agent (including but not limited to all filings and other acts necessary or
advisable under the applicable UCC or other applicable laws or similar statute
of each relevant jurisdiction) in order to continue the Collateral Agent’s
first priority perfected security interest in all Receivable Assets now owned
or hereafter created (for the benefit of the Secured Parties).


 


6.13                           Intentionally
Omitted.


 


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


 


6.15                           Additional
Equity. Permit the Company to issue or sell any additional shares, membership
interests or equity interests in the Company to any Person until after the
Final Payout Date.


 


24

















 


6.16                           U.S.
Receivables Purchase Agreement. Take any action under the
U.S. Receivables Purchase Agreement that could reasonably be expected to have a
Material Adverse Effect.


 


7.                                      TERMINATION
EVENTS


 


7.01                           Originator
Termination Events. If any of the following events (herein called “Originator
Termination Events”) shall have occurred and be continuing with respect to
the Contributor:


 


(a)                                  the Contributor
shall fail to pay any amount due hereunder in accordance with the provisions hereof
and such failure shall continue unremedied for a period of two (2) Business
Days from the earlier to occur of (i) the date upon which a Responsible
Officer of the Contributor obtains actual knowledge of such failure or (ii) the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given (A) to the Contributor by the Company or
the Administrative Agent or (B) to the Company, to the Administrative
Agent and to the Contributor by any Funding Agent; or


 


(b)                                 the Contributor
shall fail to observe or perform any other covenant or agreement applicable to
it contained herein (other than as specified in paragraph (a) of
this Section 7.01) that has a Material Adverse Effect with respect
to it and that continues unremedied until ten (10) Local Business Days
after the earlier to occur of (i) the date upon which a Responsible
Officer of the Contributor obtains actual knowledge of such failure or (ii) the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given (A) to the Contributor by the Company or
the Administrative Agent or (B) to the Company, to the Administrative
Agent and to the Contributor by any Funding Agent, provided that if such
failure may be cured and the Contributor is diligently pursing such cure, such
event shall not constitute an Originator Termination Event for an additional
thirty (30) days; or


 


(c)                                  any
representation or warranty made by the Contributor in this Agreement or in any
certificate delivered pursuant to this Agreement shall prove to have been
incorrect in any material respect when made or deemed made, and which continues
unremedied until ten (10) Local Business Days after the earlier to occur
of (i) the date upon which a Responsible Officer of the Contributor
obtains actual knowledge of such failure or (ii) the date on which written
notice thereof, requiring the same to be remedied, shall have been given (A) to
the Contributor by the Company or the Administrative Agent or (B) to the
Company, to the Administrative Agent and to the Contributor by any Funding
Agent, provided that if such incorrectness may be cured and the
Contributor is diligently pursuing such cure, such event shall not constitute
an Originator Termination Event for an additional thirty (30) days and provided
further that an Originator Termination Event shall not be deemed to have
occurred under this paragraph (c) based upon a breach of any representation or
warranty set forth in Section 4.02 if the Contributor shall have
complied with the provisions of Section 2.06 in respect thereof; or


 


(d)                                 a notice of
Lien shall have been filed by the PBGC against the Contributor under Section 412(n) of
the Code or Section 302(f) of ERISA for a failure to make a required
installment or other payment to a plan to which Section 412(n) of the
Code or Section 302(f) of ERISA applies unless there shall have been
delivered to the Administrative Agent proof, reasonably satisfactory to the
Administrative Agent, of release of such Lien or the filing of such Lien shall
not have a Material Adverse Effect with respect to the Contributor, as
reasonably determined by the Administrative Agent; or


 


25

















 


(e)                                  a Federal (or
equivalent) tax notice of Lien shall have been filed against an U.S. Originator
unless there shall have been delivered to the Administrative Agent proof,
reasonably satisfactory to the Administrative Agent, of release of such Lien or
that the filing of such Lien shall not have a Material Adverse Effect with respect
to the Contributor as reasonably determined by the Administrative Agent; or


 


(f)                                    an “Originator
Termination Event” under the U.S. Receivables Purchase Agreement shall have
occurred with respect to any Originator other than the Contributor;


 


then,
in the case of any Originator Termination Event, so long as such Originator
Termination Event shall be continuing, (x) the Company shall not to accept a
contribution of Receivables from the Contributor and (y) in the case of an
Originator Termination Event specified in paragraph (f) of this Section 7.01,
the relevant U.S. Originator shall be terminated as an U.S. Originator upon 10
days written notice (the date on which such notice becomes effective, the “Originator
Termination Date”) to the Contributor (any such termination, an “Early
Originator Termination”); provided that if such removal or
termination of an Originator other than the Contributor is in accordance with Section 28
of the U.S. Receivables Loan Agreement and there is not otherwise an
outstanding Program Termination Event, then upon such removal or termination,
the Company may resume accepting contributions of Receivables from the
Contributor.


 


Notwithstanding
the foregoing, any Receivables and Receivable Assets contributed to the
Company, prior to the Company and the Administrative Agent receiving a written
notice expressly stating that a Program Termination Date has occurred, shall
continue to be property of the Company.


 


7.02                          Program
Termination Events. If any of the following events therein called “Program
Termination Events”) shall have occurred and be continuing:


 


(a)                                  an Insolvency
Event or Originator Termination Event shall have occurred with respect to the
Contributor; or


 


(b)                                 there shall
have occurred and be continuing an Early Amortization Period; or


 


(c)                                  a notice of
Lien shall have been filed by the PBGC against the Contributor under Section 412(n) of
the Code or Section 302(f) of ERISA for a failure to make a required
installment or other payment to a plan to which Section 412(n) of the
Code or Section 302(f) of ERISA applies unless there shall have been
delivered to the Administrative Agent proof, reasonably satisfactory to the
Administrative Agent, of release of such Lien or that the filing of such Lien
shall not have a Material Adverse Effect with respect to the Contributor as
reasonably determined by the Administrative Agent; or


 


(d)                                 a Federal (or
equivalent) tax notice of Lien shall have been filed against the Contributor
unless there shall have been delivered to the Administrative Agent proof,
reasonably satisfactory to the Administrative Agent, of release of such Lien or
the filing of such Lien shall not have a Material Adverse Effect with repect to
the Contributor as reasonably determined by the Administrative Agent; or


 


(e)                                  an Originator
Termination Date shall have occurred (other than with respect to the
Contributor) with respect to an Originator that, as of the last Monthly
Settlement


 


26
















 


Report, had originated more than 10% of the
Aggregate Receivables Amount reflected on such report; or


 


(f)            an Originator Termination
Event (other than with respect to the Contributor) shall have occurred but such
Originator has not been terminated within 10 calendar days in accordance with Section 28
of the U.S. Receivables Loan Agreement;


 


then,
after the expiration of any applicable cure period, the obligation of the
Company to accept contributions shall terminate without notice (such date of
termination, the “Program Termination Date” and any such termination, an
“Early Program Termination”) and an Early Amortization Period shall
commence.


 


Notwithstanding
the foregoing, any Receivables and Receivable Assets contributed to the
Company, prior to the Company and the Administrative Agent receiving a written
notice expressly stating that a Program Termination Date has occurred, shall
continue to be property of the Company.


 


7.03         Remedies.


 


(a)           If an Originator Termination
Date or Program Termination Date has occurred and is continuing, the Company
(and its assignees) shall have all of the rights and remedies provided to an
owner of accounts under applicable law in respect thereto.


 


(b)           The Contributor agrees that,
upon the occurrence and during the continuation of a Program Termination Event
as described in subsection 7.02(a) or (b):


 


(i)    the Company (and its
assignees) shall have the right at any time to notify, or require that the
Contributor, at its expense, notify, the respective Obligors of the grant by the
Company of a security interest in the Contributed Receivables and the other
Receivable Assets related thereto in favor of the Collateral Agent (for the
benefit of the Secured Parties) and may direct that payment of all amounts due
or to become due under the Contributed Receivables be made directly to the
Company Concentration Account;


 


(ii)   the Company (and its
assignees) shall have the right to (A) sue for collections on any
Contributed Receivables or (B) sell any Receivable Assets to any Person
(other than the Contributor or any of its Affiliates) for a price that is
acceptable to the Company. If required by the applicable UCC (or analogous
provisions of any other similar law, statute or legislation applicable to the
Receivable Assets), the Company (and its assignees) may offer to sell any
Receivable Assets to any Person (other than the Contributor or any of its
Affiliates), together, at its option, with all other Receivable Assets created
by the same Obligor. Any Receivable Assets sold in accordance with this clause
(ii) shall cease to be Receivable Assets for all purposes under this
Agreement as of the effective date of such sale;


 


(iii)  the Contributor in such
capacity or in its capacity as Local Servicer, shall, and shall cause each U.S.
Originator to, upon the Company’s (or its assignees’) written request and at
the Contributor’s expense, (A) assemble all of its documents, instruments
and other records (including credit files and computer tapes or disks) that (1) evidence
or will evidence or record Contributed 


 


27

















 


Receivables and (2) are
otherwise necessary or desirable to effect Collections of such Contributed
Receivables including (i) Receivable-specific information including, when
applicable, invoice number, invoice due date, invoice value, purchase order
reference, shipping date, shipping address, shipping terms, copies of delivery
notes, bills of lading, insurance documents, copies of letters of credit, bills
of exchange or promissory notes, other security documents, and (ii) Obligor
specific information, including copy of the Contract, correspondence file and
details of any security held (collectively, the “Originator Documents”)
and (B) deliver such Originator Documents to the Company or its designee
at a place designated by the Company. In recognition of the Contributor’s need
to have access to any Originator Documents which may be transferred to the
Company hereunder, whether as a result of its continuing business relationship
with any Obligor under the Contributed Receivables or as a result of its
responsibilities as Local Servicer, the Company hereby grants to the
Contributor a license to access the Originator Documents transferred by the
Contributor to the Company and to access any such transferred computer software
in connection with any activity arising in the ordinary course of the
Contributor’s business or in performance of the Contributor’s duties as Local
Servicer; provided that the Contributor shall not disrupt or otherwise
interfere with the Company’s use of and access to the Originator Documents and
its computer software during such license period; and


 


(iv)  upon written request of the
Company, the Contributor will (A) deliver to the Company all licenses,
rights, computer programs, related material, computer tapes, disks, cassettes
and data necessary for the immediate collection of the Contributed Receivables
by the Company, with or without the participation of the Contributor (excluding
software licenses which by their terms are not permitted to be so delivered; provided
that the Contributor shall use reasonable efforts to obtain the consent of the
relevant licensor to such delivery but shall not be required, to the extent it
has an ownership interest in any electronic records. computer software or
licenses. to transfer, assign, set-over or otherwise convey such ownership
interests to the Company) and (B) make such arrangements with respect to
the collection of the Contributed Receivables as may be reasonably required by
the Company.


 


(c)           The Contributor further
agrees that upon the occurrence and during the continuation of a Program
Termination Event as described in subsection 7.02(a) or (b) of
any Origination Agreement (or any corresponding provision), the Company, its
assignees or the Administrative Agent may, with respect to the relevant
Originator(s), take any action permitted by the Contributor pursuant to Section 7.03(b) of
the relevant Origination Agreement (or any corresponding provision).


 


8.             MISCELLANEOUS


 


8.01         Payments. All payments
to be made by a party (“payor”) hereunder shall be made in Dollars on
the applicable due date and in immediately available funds to the recipient’s (“payee”)
account as may be specified by such payee from time to time in a notice to such
payor. Wherever any payment to be made under this Agreement shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day.


 


8.02         Costs and Expenses. The
Contributor agrees (a) to pay or reimburse each of the Company, the
Administrative Agent and the Collateral Agent for all of its out-of-pocket
costs and 


 


28

















 


expenses incurred in connection with the preparation
and execution of, and any amendment, supplement or modification to, this
Agreement, the other Transaction Documents and any other documents prepared in
connection herewith and therewith, the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation,
all reasonable fees and disbursements of counsel, (b) to pay or reimburse
the Company, the Administrative Agent, the Collateral Agent and their
respective assignees for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement and any of
the other Transaction Documents, including the reasonable fees and
disbursements of counsel to the Company and its assignees, (c) to pay,
indemnify, and hold the Company, the Administrative Agent, the Collateral Agent
and their respective assignees harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay
caused by such Originator in paying, stamp, excise and other similar taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of, any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement and any such
other documents and (d) to pay, indemnify, and hold the Company, the
Administrative Agent and the Collateral Agent harmless from and against any and
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (i) which may at any time be imposed on, incurred by or
asserted against the Company , the Administrative Agent, the Collateral Agent
or their respective assignees in any way relating to or arising out of this
Agreement or the other Transaction Documents or the transactions contemplated
hereby and thereby or in connection herewith or any action taken or omitted by
the Company, the Administrative Agent, the Collateral Agent or their respective
assignees under or in connection with any of the foregoing (all such other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses and disbursements being herein called “Originator Indemnified
Liabilities”) or (ii) which would not have been imposed on, incurred
by or asserted against the Company, the Administrative Agent, the Collateral
Agent or their respective assignees but for such Persons entering into and
performing under the Transaction Documents; provided, however,
that such indemnity shall not be available to the extent that such Originator
Indemnified Liabilities are finally judicially determined to have resulted from
the gross negligence or willful misconduct of the Company, the Administrative
Agent, the Collateral Agent or their respective assignees. The agreements of
the Contributor in this Section 8.02 shall survive the collection
of all Contributed Receivables, the termination of this Agreement and the
payment of all amounts payable hereunder; provided, further, that
in no event shall the Contributor be required to make any indemnity payments
resulting from the lack of performance or collectibility of the Contributed
Receivables (unless such loss results from a breach of a representation or
undertaking under any Transaction Document by the Contributor or any of its
Affiliates with respect to any such Contributed Receivable).


 


8.03         Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of the Contributor and
the Company and their respective successors (whether by merger, consolidation
or otherwise) and permitted assigns. The Contributor agrees that it will not
assign or transfer all or any portion of its rights or obligations hereunder
without the prior written consent of the Company and the Administrative Agent.
The Contributor acknowledges that, pursuant to the U.S. Receivables Loan
Agreement, the Company shall grant to the Collateral Agent (for the benefit of
the Secured Parties) a security interest in, among other things, all of its
rights hereunder. The Contributor further agrees that, in respect of its
obligations hereunder, it will act at the direction of and in accordance with
all requests and instructions from the Administrative Agent and the Collateral
Agent until the Final Payout Date.


 


8.04         Intentionally Omitted.


 


29

















 


8.05         Intentionally Omitted.


 


8.06         Governing Law. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK AND WITHOUT REFERENCE TO ANY CONFLICT OF LAWS PRINCIPLES
(OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW), SUBJECT TO THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION THAT MAY BE
APPLICABLE TO THE PERFECTION OF ANY CONTRIBUTION OR GRANT OF A SECURITY
INTEREST HEREUNDER.


 


8.07         No Waiver; Cumulative
Remedies. No failure to exercise and no delay in exercising,
on the part of the Company, any right, remedy, power or privilege hereunder,
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.


 


8.08         Amendments and Waivers. Neither this
Agreement nor any terms hereof may be amended, supplemented or modified except
in a writing signed by the Company and the Contributor and that otherwise
complies with any applicable provision in the other Transaction Documents,
including Section 26.3(p) of the U.S. Receivables Loan Agreement.


 


8.09         Severability. Any provision
of this Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.


 


8.10         Notices. All notices,
requests and demands to or upon the respective parties hereto to be effective
shall be in writing (including by facsimile communication), and shall be
personally delivered or sent by certified mail, postage prepaid, or overnight
courier or facsimile, to the intended party at the address or facsimile number
of such party as addressed below, or at such other address or facsimile number
as shall be designated by such party in a written notice to the other parties
hereto (and any other parties to whom such notice is required by the terms of
this Agreement or any other Transaction Document).  All such notices and communications shall be
shall be deemed to have been duly given or made when (i) delivered by
hand, (ii) upon the earlier of actual receipt or physical delivery
attempt, if deposited in the mail, postage prepaid or sent by recognized
courier service, or, (iii) in the case of telecopy, when received.


 


	
  With
  respect to the Company:

  	
  Huntsman
  Receivables Finance II LLC

  
	
   

  	
  500
  Huntsman Way

  
	
   

  	
  Salt
  Lake City

  
	
   

  	
  Utah
  84108, USA

  
	
   

  	
   

  
	
   

  	
  Attention:
  Office of the General Counsel

  
	
   

  	
  Telecopy:
  1 (801) 584-5782

  
	
   

  	
   

  
	
  Copy
  to:

  	
  Huntsman
  (Europe) BVBA

  
	
   

  	
  Everslaan
  45

  
	
   

  	
  B-
  307 8 Everberg

  
	
   

  	
  Belgium

  



 


30

















 


	
   

  	
  Attention:
  Treasury Department

  
	
   

  	
  Telecopy:
  3227595501

  
	
   

  	
   

  
	
  With
  respect to the Contributor:

  	
  Huntsman
  International LLC

  
	
   

  	
  500
  Huntsman Way

  
	
   

  	
  Salt
  Lake City

  
	
   

  	
  Utah
  84108, USA

  
	
   

  	
   

  
	
   

  	
  Attention:
  Office of the General Counsel

  
	
   

  	
  Telecopy:
  1 (801) 584-5782

  
	
   

  	
   

  
	
  Copy
  to:

  	
  Huntsman
  (Europe) BVBA

  
	
   

  	
  Everslaan
  45

  
	
   

  	
  B-3078
  Everberg

  
	
   

  	
  Belgium

  
	
   

  	
   

  
	
   

  	
  Attention:
  Treasury Department

  
	
   

  	
  Telecopy:
  3227595501

  
	
   

  	
   

  
	
  With
  respect to the Collateral Agent:

  	
  Wachovia
  Bank, National Association

  
	
   

  	
  171
  17th Street N.W.

  
	
   

  	
  Atlanta

  
	
   

  	
  Georgia
  30363, USA

  
	
   

  	
   

  
	
   

  	
  Attention:
  William Rutkowski

  
	
   

  	
  Telecopy:
  1 (404) 214-7299

  



 


8.11         Counterparts. This
Agreement may be executed by one or more of the parties to this Agreement on
any number of separate counterparts (including by telecopy), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties shall
be lodged with the Company.


 


8.12         Submission to Jurisdiction;
Service of Process.


 


(a)           Each of the parties hereto
hereby submits to the nonexclusive jurisdiction of the United States District
Court for the Southern District of New York and of any New York State court
sitting in the Borough of Manhattan, City of New York for purposes of all legal
proceedings arising out of or relating to this Agreement or the transactions
contemplated hereby. Each of the parties hereto hereby irrevocably waives, to
the fullest extent it may effectively do so, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in
such a court, any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum and any claim based on its immunity from
suit. Nothing in this Section 8.12(a) shall affect the right
of any party hereto to bring any action or proceeding against another or its
property in the courts of other jurisdictions.


 


(b)           EACH PARTY WAIVES ITS 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 EITHER PARTY
AGAINST THE OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT 


 


31

















 


CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH PARTY HERETO
AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES HERETO FURTHER
AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION 8.12(b) 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 PROVISIONS HEREOF. THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT.


 


8.13         No Bankruptcy Petition.


 


(a)           The Contributor, by entering
into this Agreement, covenants and agrees, to the extent permissible under
applicable law, that it will not solely in its capacity as a creditor of the
Company institute against, or join any other Person in instituting against, the
Company any involuntary bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other involuntary proceedings (including, but not
limited to, petitioning for the declaration of the Company’s assets en
désastre) under any Applicable Insolvency Laws; and


 


(b)           Notwithstanding anything
elsewhere herein contained, the sole remedy of the Contributor or any other
Person in respect of any obligation, covenant, representation, warranty or
agreement of the Company under or related to this Agreement shall be against
the assets of the Company. Neither the Contributor nor any other Person shall
have any claim against the Company to the extent that such assets are
insufficient to meet such obligation, covenant, representation, warranty or
agreement (the difference being referred to herein as a “shortfall”) and
all claims in respect of the shortfall shall be extinguished.


 


8.14         Termination. This
Agreement will terminate at such time as (a) the commitment of the Company
to accept a contribution of Receivables from the Contributor hereunder shall
have terminated and (b) all Contributed Receivables have been collected,
and the proceeds thereof turned over to the Company and all other amounts owing
to the Company hereunder shall have been paid in full or, if Contributed
Receivables have not been collected, such Contributed Receivables have become
Defaulted Receivables and the Company shall have completed its collection
efforts in respect thereto; provided, however, that the
indemnities of any Contributor to the Company set forth in this Agreement shall
survive such termination and provided  further that, to the extent
any amounts remain due and owing to the Company hereunder, the Company shall
remain entitled to receive any Collections on Contributed Receivables which
have become Defaulted Receivables after it shall have completed its collection
efforts in respect thereof. Notwithstanding anything to the contrary contained
herein, if at any time, any payment made by the Contributor is rescinded or
must be restored or returned by the Company as a result of any Insolvency Event
with respect to the Contributor then the Contributor’s obligations with respect
to such payment shall be reinstated as though such payment had never been made.


 


8.15         Responsible Officer
Certificates; No Recourse. Any certificate executed and delivered by a
Responsible Officer of the Contributor or the Company pursuant to the terms of
the Transaction Documents shall be executed by such Responsible Officer not in
an individual capacity but solely in his or her capacity as an officer of the
Contributor or the Company, as applicable, and such Responsible Officer will
not be subject to personal liability as to the matters contained in the
certificate. A director, officer, manager, employee or member, as the case may
be, as such, of the Contributor or Company shall not have liability for any
obligation of the 


 


32

















 


Contributor or the Company hereunder or under any
Transaction Document or for any claim based on, in respect of, or by reason of,
any Transaction Document, unless such claim results from the gross negligence,
fraudulent acts or willful misconduct of such director, officer, employee,
manager or member, as the case may be.


 


8.16         Confidential Information.


 


(a)           Unless otherwise required by
applicable law, and subject to subsection 8.16(b) below, each of
the parties hereto undertakes to maintain the confidentiality of this Agreement
in its communications with third parties and otherwise. None of the parties
shall disclose to any Person any information of a confidential nature of or
relating to either the Contributor, the Administrative Agent, the Collateral
Agent or Company, which such party may have obtained as a result of the
Transaction (the “Confidential Information”). For the avoidance of
doubt, the Company shall restrict disclosure of Confidential Information to its
officers, employees, agents and advisers who need to receive such information
to ensure the proper functioning of the Transaction. Both the Administrative
Agent and the Collateral Agent shall procure that such officers, employees,
agents and advisers shall keep confidential all of the Confidential Information
received; and


 


(b)           The provisions of this Section 8.
16 shall not apply:


 


(i)    to the disclosure of any information
which is or becomes public knowledge otherwise than as a result of the conduct
of the recipient;


 


(ii)   to the disclosure of
Confidential Information to the Adminstrative Agent’s or Collateral Agent’s
assigns (provided that such information is disclosed subject to the
condition that such party will hold it confidential on the same basis);


 


(iii)  to the disclosure of any
information to the parties to any of the Transaction Documents or to other
parties with the written consent of the parties hereto;


 


(iv)  to the disclosure of any
information in response to any order of any court or Governmental Authority; or


 


(v)   to the disclosure of any
information reasonably required for the completion and filing of any financing
statements pursuant to Sections 2.01(c), 3.01(h) and 4.01(d).


 


8.17         Effectiveness of this
Agreement. This Agreement shall be binding on the parties
hereto with effect as at the date hereof.


 


[SIGNATURES COMMENCE ON NEXT PAGE]


 


33

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Contribution Agreement to
be executed by their respective officers thereunto duly authorized, all as of
the day and year first above written.


 


 


	
   

  	
  HUNTSMAN
  RECEIVABLES FINANCE II LLC,

  
	
   

  	
  as the Company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  HUNTSMAN
  INTERNATIONAL LLC, as

  
	
   

  	
   

  	
  Member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  SEAN DOUGLAS

  
	
   

  	
   

  	
   

  	
  Name:
  Sean Douglas

  
	
   

  	
   

  	
   

  	
  Title:
  Vice President and Treasurer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  HUNTSMAN
  INTERNATIONAL LLC,

  
	
   

  	
  as the Contributor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  SEAN DOUGLAS

  
	
   

  	
   

  	
  Name:
  Sean Douglas

  
	
   

  	
   

  	
  Title:
  Vice President and Treasurer