Exhibit 10.4


 


EUROPEAN CONTRIBUTION AGREEMENT


 


between


 


HUNTSMAN INTERNATIONAL LLC,


as Contributor


 


and


 


HUNTSMAN RECEIVABLES FINANCE LLC,


as the Company


 


Dated as of October 16, 2009.


 

















 


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

  	
  5

  
	
   

  	
  2.04

  	
  No Repurchase

  	
  5

  
	
   

  	
  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

  	
  Intentionally Omitted

  	
  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

  	
  9

  
	
   

  	
  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

  	
  15

  
	
   

  	
  4.03

  	
  Representations and Warranties of the Company

  	
  16

  
	
  5.

  	
  AFFIRMATIVE COVENANTS

  	
  17

  
	
   

  	
  5.01

  	
  Financial Statements; Reports; etc.

  	
  17

  
	
   

  	
  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.

  	
  20

  
	
   

  	
  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

  	
  21

  
	
   

  	
  5.17

  	
  Marking of Records

  	
  22

  
	
   

  	
  5.18

  	
  Intercreditor Agreements

  	
  22

  
	
   

  	
  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

  	
  23

  
	
   

  	
  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

  	
  Receivables Purchase Agreements

  	
  24

  
	
  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

  	
  29

  
	
   

  	
  8.06

  	
  Governing Law

  	
  29

  
	
   

  	
  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

















 


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


 


WHEREAS,
the Company will grant a security interest in the accounts receivable
contributed to it to Barclays Bank plc, not in its individual capacity but
solely as Collateral Agent (the “Collateral Agent”) pursuant to the European
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 “European
Receivables Loan Agreement”), among the Company, Huntsman (Europe) BVBA, as
Master Servicer (the “Master Servicer”), Barclays Bank plc as
Administrative Agent (in such capacity, the “Administrative Agent”), the
Collateral Agent and the several parties thereto from time to time as Lenders
and Funding Agents (the “Funding Agents”); and


 


WHEREAS,
the Company, the Master Servicer, the Local Servicers party thereto from time
to time, the Administrative Agent, the Collateral Agent, Pricewaterhousecoopers
LLP as Liquidation Servicer and Huntsman International LLC as Servicer
Guarantor have entered into a European 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 “European 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
European 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 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 


 


1

















 


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”.


 


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


 


2

















 


(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)                                such
Receivables purchased by the Contributor from an Originator on the applicable
date of contribution (the “Contribution Date”) pursuant to the terms of
a Receivables Purchase Agreement from time to time as 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 (the “Contributed Receivables”);


 


(ii)                             the Related
Property;


 


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


 


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


 


(v)                            all rights of
the Contributor under each of the Receivables Purchase Agreements including, in
respect of each such agreement, (A) all rights of the Contributor to
receive monies due and to become due under or pursuant to such agreement,
whether payable as fees, expenses, costs or otherwise, (B) all rights of
the Contributor to receive proceeds of any insurance, indemnity, warranty or
guaranty with respect to such agreement, (C) 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 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;


 


(vi)                         all “accounts,”
“general intangibles,” “chattel paper” and/or “instruments” (each as defined in
the UCC as in effect in any applicable 


 


3

















 


jurisdiction) arising from,
relating to or consisting of any of the foregoing property; and


 


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


 


Such
property described in the foregoing clauses (i) through (vii) 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)(i) above,
in accordance with the terms of any 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 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 Originator shall not be part of such Originator’s
insolvency or bankruptcy estate in the event an insolvency or delinquency
proceeding or a bankruptcy or other action shall be commenced or filed by or
against such Originator under any insolvency or bankruptcy law. In the event,
however, that notwithstanding such intent and agreement, such transfers are
deemed by any relevant Governmental Authority for any reason whatsoever,
whether for limited purposes or otherwise, to be a security interest granted to
secure indebtedness of the Contributor, the Contributor shall be deemed to have
granted to the Company a perfected first priority security interest under Article 9
of the UCC in the applicable jurisdiction in all of its right, title and
interest in, to and under, in each case, whether now owned or existing, or
hereafter acquired or arising, and wherever located, the Receivable Assets
originated or purchased by the Contributor, and this Agreement shall constitute
a security agreement under applicable law, securing the repayment of the
amounts paid hereunder, subject to the other terms and conditions of this
Agreement, together with such other obligations or interests as may arise
hereunder in favor of the parties hereto.


 


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


 


4

















 


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 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 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 European 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)).


 


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 


 


5

















 


interpreted to limit the right of the Company to
receive a Contributor Dilution Adjustment Payment, a Contributor Adjustment
Payment or a Contributor Indemnification Payment.


 


2.05                        Rebates,
Adjustments, Returns. Reductions and Modifications. From time to
time the Contributor may make a Dilution Adjustment to a Contributed Receivable
in accordance with this Section 2.05 and Section 6.02; provided
that if the Contributor or any Originator cancels an invoice related to such
Contributed Receivable, either (i) such invoice must be replaced, or
caused to be replaced, by the Contributor as part of a “credit and re-bill” (as
defined in the definition of Dilution Adjustment) with an invoice relating to
the same transaction of equal or greater Principal Amount within 5 Business
Days of such cancellation, (ii) such invoice must be replaced, or caused
to be replaced, by the Contributor as part of a “credit and re-bill” (as
defined in the definition of Dilution Adjustment) with an invoice relating to
the same transaction of a lesser Principal Amount within 5 Business Days of
such cancellation and the Contributor must make a Contributor Dilution
Adjustment Payment, to the Company Concentration Account, in an amount equal to
the difference between such cancelled and replacement invoices or (iii) the
Contributor must make a Contributor Dilution Adjustment Payment, to the
relevant Company 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, 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 Sections 4.02(a), 4.02(b),
4.02(c), 4.02(d), 4.02(e) or 4.02(f) in respect of any
Contributed Receivable or if the Company does not acquire all of the
Contributor’s right, title and interest in any Contributed Receivable, 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 relevant Company
Concentration Account in the same currency as such Contributed Receivable.
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 Sections 4.02(a), 4.02(b), 4.02(c), 4.02(d), 4.02(e) or
4.02(f) in respect of or concerning any Contributed Receivable, the
Contributor’s obligation to pay the Contributor Adjustment Payment under this Section 2.06
is a reasonable pre-estimate of loss and not a penalty (and neither the Company
nor any other person or entity having an interest in this Agreement through the
Company shall be entitled to any other remedies as a consequence of any such
breach).


 


(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


 


6
















 


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 European 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 relevant 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
European 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                           Intentionally
Omitted.


 


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 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 


 


7

















 


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.


 


2.10                           Spanish Taxes.  Each of the parties hereto hereby agrees that
at all times until the Final Payout Date it will obtain all certificates, make
all filings and take all other actions as are necessary to comply, in all
material respects, with Spanish tax laws and regulations.  The Contributor hereby
represents and warrants to the Company that (i) the Contributor, the
Spanish Originators and the Company are related parties on the grounds that
they are subject to a “de facto” direct or indirect common control and (ii) both
the Purchase Price and the Contribution Value of the Spanish Receivables have
been determined to constitute arm’s length conditions.


 


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 European Receivables Loan Agreement, the
European Servicing Agreement and the Receivables Purchase Agreements;


 


(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:


 


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


 


8

















 


(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 each Originator;


 


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


 


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


 


3.02                           Conditions
Precedent to all Contributions of Receivables. The obligation of the
Company to accept a contribution of Receivable Assets on each Contribution Date
is subject to the satisfaction of the following conditions precedent, that, on
and as of the related Contribution 


 


9

















 


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 the
related Originator to the Contributor contained in the related Receivables
Purchase Agreement shall have been satisfied;


 


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


 


(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



 


10

















 


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.


 


(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 


 


11

















 


filings the failure of which to obtain or make could
not reasonably be expected to result in a Material Adverse Effect with respect
to it.


 


(e)                                  Litigation;
Compliance with Laws.


 


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


 


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


 


(f)                                    Agreements.


 


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


 


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


 


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


 


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


 


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


 


(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;


 


12

















 


(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.


 


(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 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 


 


13

















 


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 Originator, taken individually at a fair valuation, will
exceed the debts and liabilities, subordinated, contingent or otherwise, of the
Contributor or such Originator, as applicable; (ii) the present fair
saleable value of the property of the Contributor and each 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
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 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 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 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. Each 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.


 


(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 


 


14

















 


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
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 


 


15

















 


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 12 to the European 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 Originator upon a bankruptcy of the
Contributor or the relevant 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.


 


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


 


16
















 


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 Collateral Agent under the Pledge Agreement.


 


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 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 


 


17

















 


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 Originator under any
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.


 


(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.


 


18

















 


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;


 


(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 


 


19

















 


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 Originator’s
reasonable and normal security and confidentiality requirements of general application
to the visitors at the relevant property and to discuss the business,
operations, properties and financial condition of the Contributor and each
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 set forth in
the Transaction Documents or otherwise 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 Originator
(including, without limitation, any employees thereof or independent
contractors employed thereby), the Contributor shall, and shall cause such
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 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:


 


20

















 


(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 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
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:


 


21

















 


(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 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 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 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).


 


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 


 


22

















 


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
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.


 


6.06                           Modification of
Legend. Delete or otherwise modify the information related to the ownership
of the Receivable Assets contained in the extraction records of an Originator
referenced in any Origination Agreement.


 


23

















 


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.


 


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 36.3 of the European Receivables Loan
Agreement or any 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.


 


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


 


24

















 


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 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


 


(e)                                  a Federal (or
equivalent) tax notice of Lien shall have been filed against an 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


 


25

















 


(f)                                    an “Originator
Termination Event” under an Origination 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 Originator shall be terminated as an 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 European Receivables Loan Agreement and does not otherwise constitute a
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 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


 


(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 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 European Receivables Loan Agreement;


 


26
















 


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
relevant Company Concentration Accounts;


 


(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 shall, and
shall cause each 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
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 


 


27

















 


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, 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; 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 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 


 


28

















 


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
European 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.


 


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 


 


29

















 


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(o) of the
European 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 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 Contributor:

  	
  Huntsman
  International LLC

  
	
   

  	
  500
  Huntsman Way

  



 


30

















 


	
   

  	
  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:

  	
  Barclays
  Bank plc

  
	
   

  	
  745
  Seventh Avenue

  
	
   

  	
  New
  York, New York 10019

  
	
   

  	
   

  
	
   

  	
  Attention:
  Mary Logan

  
	
   

  	
  Telecopy:
  1 (212) 412-6846

  



 


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 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, 


 


31

















 


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 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.


 


32

















 


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) , 4.01(d) and
5.16.


 


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 LLC,

  
	
   

  	
  as
  the Company

  
	
   

  	
   

  	
   

  
	
   

  	
  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