**Exhibit10.3**

 

**EXECUTIONCOPY**

 

AMENDED ANDRESTATEDCONTRIBUTION AGREEMENT

 

between

 

HUNTSMANINTERNATIONAL LLC,as Contributor and Originator

 

and

 

HUNTSMANRECEIVABLES FINANCE LLC,as the Company

 

Dated as ofApril 18, 2006.

 

----

 

**TABLE OFCONTENTS**

 
| ** ** | ** **                     | **Page**                                                                                                                            |
|------------|--------------------------------|-------------------------------------------------------------------------------------------------------------------------------------|
|       |                           |                                                                                                                                |
| 1.         | DEFINITIONS                    | 1                                                                                                                                   |
|       |                           |                                                                                                                                |
|       | 1.01                           | Defined Terms                                                                                                                       | 1 |
|       |                           |                                                                                                                                |   |
|       | 1.02                           | Other Definitional Provisions                                                                                                       | 1 |
|       |                           |                                                                                                                                |   |
| 2.         | CONTRIBUTION OF RECEIVABLES    | 2                                                                                                                                   |
|       |                           |                                                                                                                                |
|       | 2.01                           | Contribution of Receivables                                                                                                         | 2 |
|       |                           |                                                                                                                                |   |
|       | 2.02                           | Contribution Value                                                                                                                  | 4 |
|       |                           |                                                                                                                                |   |
|       | 2.03                           | Intentionally Omitted                                                                                                               | 5 |
|       |                           |                                                                                                                                |   |
|       | 2.04                           | No Repurchase                                                                                                                       | 5 |
|       |                           |                                                                                                                                |   |
|       | 2.05                           | Rebates, Adjustments, Returns,  Reductions and Modifications                                                                        | 5 |
|       |                           |                                                                                                                                |   |
|       | 2.06                           | Payments in Respect of Ineligible  Receivables and Originator Indemnification Payments                                              | 5 |
|       |                           |                                                                                                                                |   |
|       | 2.07                           | Certain Charges                                                                                                                     | 6 |
|       |                           |                                                                                                                                |   |
|       | 2.08                           | Certain Allocations                                                                                                                 | 6 |
|       |                           |                                                                                                                                |   |
|       | 2.09                           | Power of Attorney                                                                                                                   | 6 |
|       |                           |                                                                                                                                |   |
| 3.         | CONDITIONS TO CONTRIBUTIONS    | 7                                                                                                                                   |
|       |                           |                                                                                                                                |
|       | 3.01                           | Conditions Precedent to  Contribution                                                                                               | 7 |
|       |                           |                                                                                                                                |   |
|       | 3.02                           | Conditions Precedent to all  Contributions of Receivables                                                                           | 8 |
|       |                           |                                                                                                                                |   |
|       | 3.03                           | Conditions Precedent to the  Contributor’s Obligations on the Initial Contribution Date and each  Contribution Date thereafter | 9 |
|       |                           |                                                                                                                                |   |
| 4.         | REPRESENTATIONS AND WARRANTIES | 9                                                                                                                                   |
|       |                           |                                                                                                                                |
|       | 4.01                           | Representations and Warranties of  the Contributor                                                                                  | 9 |
|       |                           |                                                                                                                                |   |
|       | 4.02                           | Representations and Warranties of  the Contributor Relating to the Contributed Receivables                                          | 14 |
|       |                           |                                                                                                                                |   |
|       | 4.03                           | Representations and Warranties of  the Company                                                                                      | 15 |
|       |                           |                                                                                                                                |   |
| 5.         | AFFIRMATIVE COVENANTS          | 15                                                                                                                                  |
|       |                           |                                                                                                                                |
|       | 5.01                           | Financial Statements, Reports, etc.                                                                                                 | 16 |
|       |                           |                                                                                                                                |   |
|       | 5.02                           | Compliance with Law and Policies                                                                                                    | 16 |
|       |                           |                                                                                                                                |   |
|       | 5.03                           | Preservation of Company Existence                                                                                                   | 17 |
|       |                           |                                                                                                                                |   |
|       | 5.04                           | Separate Company Existence                                                                                                          | 17 |
|       |                           |                                                                                                                                |   |
|       | 5.05                           | Inspection of Property; Books and  Records; Discussions                                                                             | 18 |
|       |                           |                                                                                                                                |   |
|       | 5.06                           | Location of Records                                                                                                                 | 18 |
|       |                           |                                                                                                                                |   |
|       | 5.07                           | Computer Files and other Documents                                                                                                  | 18 |
|       |                           |                                                                                                                                |   |
|       | 5.08                           | Obligations                                                                                                                         | 18 |
|       |                           |                                                                                                                                |   |
|       | 5.09                           | Collections                                                                                                                         | 18 |
|       |                           |                                                                                                                                |   |
|       | 5.10                           | Furnishing Copies, Etc.                                                                                                             | 18 |

 

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| ** ** | ** **         | **Page**                                                        |
|------------|--------------------|-----------------------------------------------------------------|
|       |               |                                                            |
|       | 5.11               | Intentionally Omitted                                           | 19 |
|       |               |                                                            |   |
|       | 5.12               | Assessments                                                     | 19 |
|       |               |                                                            |   |
|       | 5.13               | Intentionally Omitted                                           | 19 |
|       |               |                                                            |   |
|       | 5.14               | Notices                                                         | 19 |
|       |               |                                                            |   |
|       | 5.15               | Bankruptcy                                                      | 19 |
|       |               |                                                            |   |
|       | 5.16               | Further Action                                                  | 19 |
|       |               |                                                            |   |
|       | 5.17               | Marking of Records                                              | 20 |
|       |               |                                                            |   |
|       | 5.18               | Intentionally Omitted                                           | 20 |
|       |               |                                                            |   |
|       | 5.19               | Enforcement of Agreements                                       | 20 |
|       |               |                                                            |   |
| 6.         | NEGATIVE COVENANTS | 20                                                              |
|       |               |                                                            |
|       | 6.01               | Limitations on Transfers of  Contributed Receivables, Etc.      | 20 |
|       |               |                                                            |   |
|       | 6.02               | Extension or Amendment of  Contributed Receivables              | 20 |
|       |               |                                                            |   |
|       | 6.03               | Change in Payment Instructions to  Obligors                     | 20 |
|       |               |                                                            |   |
|       | 6.04               | Change in Name                                                  | 20 |
|       |               |                                                            |   |
|       | 6.05               | Policies                                                        | 21 |
|       |               |                                                            |   |
|       | 6.06               | Modification of Legend                                          | 21 |
|       |               |                                                            |   |
|       | 6.07               | Accounting for Contributions                                    | 21 |
|       |               |                                                            |   |
|       | 6.08               | Instruments                                                     | 21 |
|       |               |                                                            |   |
|       | 6.09               | Ineligible Receivables                                          | 21 |
|       |               |                                                            |   |
|       | 6.10               | Business of the Contributor                                     | 21 |
|       |               |                                                            |   |
|       | 6.11               | Intentionally Omitted.                                          | 21 |
|       |               |                                                            |   |
|       | 6.12               | Offices                                                         | 21 |
|       |               |                                                            |   |
|       | 6.13               | Intentionally Omitted                                           | 21 |
|       |               |                                                            |   |
|       | 6.14               | Amendment of Transaction Documents  or Other Material Documents | 21 |
|       |               |                                                            |   |
|       | 6.15               | Additional Equity                                               | 22 |
|       |               |                                                            |   |
|       | 6.16               | Receivables Purchase Agreements                                 | 22 |
|       |               |                                                            |   |
| 7.         | TERMINATION EVENTS | 22                                                              |
|       |               |                                                            |
|       | 7.01               | Originator Termination Events                                   | 22 |
|       |               |                                                            |   |
|       | 7.02               | Program Termination Events                                      | 23 |
|       |               |                                                            |   |
|       | 7.03               | Remedies                                                        | 23 |
|       |               |                                                            |   |
| 8.         | MISCELLANEOUS      | 25                                                              |
|       |               |                                                            |
|       | 8.01               | Payments                                                        | 25 |
|       |               |                                                            |   |
|       | 8.02               | Costs and Expenses                                              | 25 |
|       |               |                                                            |   |
|       | 8.03               | Successors and Assigns                                          | 25 |

 

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| ** **      | ** **                    | **Page**                                        |
|-----------------|-------------------------------|-------------------------------------------------|
|            |                          |                                            |
|            | 8.04                          | Intentionally Omitted                           | 25 |
|            |                          |                                            |   |
|            | 8.05                          | Intentionally Omitted                           | 25 |
|            |                          |                                            |   |
|            | 8.06                          | Governing Law                                   | 25 |
|            |                          |                                            |   |
|            | 8.07                          | No Waiver; Cumulative Remedies                  | 25 |
|            |                          |                                            |   |
|            | 8.08                          | Amendments and Waivers                          | 26 |
|            |                          |                                            |   |
|            | 8.09                          | Severability                                    | 26 |
|            |                          |                                            |   |
|            | 8.10                          | Notices                                         | 26 |
|            |                          |                                            |   |
|            | 8.11                          | Counterparts                                    | 27 |
|            |                          |                                            |   |
|            | 8.12                          | Submission to Jurisdiction; Service  of Process | 27 |
|            |                          |                                            |   |
|            | 8.13                          | No Bankruptcy Petition                          | 28 |
|            |                          |                                            |   |
|            | 8.14                          | Termination                                     | 28 |
|            |                          |                                            |   |
|            | 8.15                          | Responsible Officer Certificates;  No Recourse  | 28 |
|            |                          |                                            |   |
|            | 8.16                          | Confidential Information                        | 28 |
|            |                          |                                            |   |
|            | 8.17                          | Effectiveness of this Agreement                 | 29 |
|            |                          |                                            |   |
| SCHEDULES       |                          |                                            |
| Schedule 1 | Form of Solvency Certificate  |                                            |
| Schedule 2 | Location of Books and Records |                                            |
|                 |                               |                                                 |  |  |

 

iii

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AMENDED AND RESTATED CONTRIBUTION AGREEMENT, dated asof April 18, 2006 (this “Agreement”), between HuntsmanInternational LLC, a limited liability company organized under the laws of theState of Delaware, as contributor (the “Contributor”) and HuntsmanReceivables Finance LLC, a limited liability company organized under the lawsof the State of Delaware, as the Company (the ”Company”).

 

**W I T N E S S E T H:**

 

WHEREAS, the parties are entering into this Agreementunder which the Contributor may contribute to the Company, as a capitalcontribution, its right, title and interest in, to and under certain accountsreceivable originated by the Contributor, existing and hereafter arising fromtime to time;

 

WHEREAS, the Contributor shall purchase additionalaccounts receivable pursuant to certain receivables purchase agreements betweenthe Contributor and one or more of its affiliates, and, if it purchases thesame, shall contribute such purchased accounts receivable, together withcertain accounts receivable originated by the Contributor, to the Company, as acapital contribution;

 

WHEREAS, the Company will grant a participation and asecurity interest in the accounts receivable contributed to it to J.P.MorganBank (Ireland) plc, not in its individual capacity but solely as trustee, asTrustee (the “Trustee”) of the Huntsman Master Trust, establishedpursuant the Second Amended and Restated Pooling Agreement, dated as of the datehereof (such agreement, as it may be amended, modified or otherwisesupplemented from time to time, the “Pooling Agreement”), among theTrustee, the Company and Huntsman (Europe) BVBA, as Master Servicer (the “MasterServicer”); and

 

WHEREAS, the Master Servicer, the Company, HuntsmanInternational LLC, as Servicer Guarantor, the Liquidation Servicer, the LocalServicers party thereto from time to time and the Trustee have entered into aSecond Amended and Restated Servicing Agreement, dated as of the date hereof(such agreement, as it may be amended, restated, modified or otherwisesupplemented from time to time, the ”Servicing Agreement”),pursuant to which the Master Servicer will agree to service and administer orcause to be serviced or administered such accounts receivable on behalf of theCompany.

 

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

 

**1.            **DEFINITIONS

** **

1.01         Defined Terms. Capitalized termsused herein shall, unless otherwise defined or referenced herein, have themeanings assigned to such terms in Annex X attached to the PoolingAgreement which Annex X 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 thisAgreement as a whole and not to any particular provision of this Agreement, andarticle, section, subsection, schedule and exhibit references are to thisAgreement unless otherwise specified.

 

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

 

----

 

(c)           The meanings given to terms definedor incorporated by reference herein shall be equally applicable to both thesingular and plural forms of such terms.

 

(d)           Any reference herein to a Schedule orExhibit to this Agreement shall be deemed to be a reference to such Schedule orExhibit as it may be amended, modified or supplemented from time to time to theextent that such Schedule or Exhibit may be amended, modified or supplemented(or any term or provision of any Transaction Document may be amended that wouldhave the effect of amending, modifying or supplementing information containedin such Schedule or Exhibit) in compliance with the terms of the TransactionDocuments.

 

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

 

(f)            The words “include”, “includes” or “including”shall be interpreted as if followed, in each case, by the phrase “withoutlimitation”.

 

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

 

**2.            **CONTRIBUTIONOF RECEIVABLES

** **

2.01         Contribution of Receivables.

 

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

 

(i)            such Eligible Receivables originatedby the Contributor from time to time prior to but not including the date onwhich an Early Program Termination occurs, or an Early Originator Terminationoccurs with respect to the Contributor and included in the Originator DailyReport transmitted to the Master Servicer and included in the Daily Reportgenerated by the Master Servicer and transmitted to the Trustee electronicallyor by telecopier on the applicable date of contribution (any such date, a “ContributionDate”);

 

(ii)           all Purchased Receivables (as definedin the applicable Receivables Purchase Agreement) purchased by the Contributorfrom an Originator on the Contribution Date pursuant to the terms of aReceivables Purchase Agreement from time to time (such Purchased Receivables,together with any Eligible Receivables contributed pursuant to clause (i),the “Contributed Receivables”);

 

(iii)          the Related Property;

 

(iv)          all collections in respect of suchContributed Receivables;

 

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

 

2

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(vi)          all rights of the Contributor undereach of the Receivables Purchase Agreements including, in respect of each suchagreement, (A) all rights of the Contributor to receive monies due and tobecome due under or pursuant to such agreement, whether payable as fees,expenses, costs or otherwise, (B) all rights of the Contributor to receiveproceeds of any insurance, indemnity, warranty or guaranty with respect to suchagreement, (C) claims of the Contributor for damages arising out of or forbreach of or default under such agreement, (D) the right of theContributor to amend, waive or terminate such agreement, to perform thereunderand to compel performance and otherwise exercise all remedies thereunder and(E) all other rights, remedies, powers, privileges and claims of theContributor under or in connection with such agreement (whether arisingpursuant to such agreement or otherwise available to the Contributor at law orin equity), including the rights of the Contributor to enforce such agreementand to give or withhold any and all consents, requests, notices, directions,approvals, extensions or waivers under or in connection therewith;

 

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

 

(viii)        all proceeds of or payments in respectof any and all of the foregoing clauses (i) through (iv) (includingCollections).

 

Such property described in the foregoingclauses (i) through (viii) shall be referred to collectively herein as the“Receivable Assets” and shall be considered to be assets that have beencontributed, transferred, assigned, set over and otherwise conveyed by theContributor to the Company immediately upon completion of the purchase of anyReceivables referred to in Section 2.01(a)(ii) above, in accordance withthe terms of any Receivables Purchase Agreement, and in relation to thoseReceivables referred to in Section 2.01(a)(i) above, upon delivery to theCompany of a Daily Report.

 

(b)           The Contributor and the Companyhereby acknowledge and agree that it is their mutual intent that (a) everytransfer by way of capital contribution of Receivable Assets to the Companyhereunder shall be an absolute, unconditional, “true” conveyance and not a meregranting of a security interest to secure a loan to or from the Company,(b) the Contributor shall not retain any interest in the Receivable Assetsafter the contribution thereof hereunder, (c) the Receivable Assetsoriginated, or purchased from an Originator, by the Contributor shall not bepart of the Contributor’s insolvency or bankruptcy estate in the event aninsolvency or delinquency proceeding or a bankruptcy petition or other actionshall be commenced or filed by or against the Contributor under any insolvencyor bankruptcy law and (d) the Purchased Receivables originated by anyOriginator shall not be part of such Originator’s insolvency or bankruptcyestate in the event an insolvency or delinquency proceeding or a bankruptcy orother action shall be commenced or filed by or against such Originator underany insolvency or bankruptcy law. In the event, however, that notwithstandingsuch intent and agreement, such transfers are deemed by any relevantGovernmental Authority for any reason whatsoever, whether for limited purposesor otherwise, to be a security interest granted to secure indebtedness of theContributor, the Contributor shall be deemed to have granted to the Company aperfected first priority security interest under Article 9 of the UCC inthe applicable jurisdiction in all of its right, title and interest in, to andunder, in each case, whether now owned or existing, or hereafter acquired or arising,and wherever located, the Receivable Assets originated or purchased by theContributor and this Agreement shall constitute a security agreement underapplicable law, securing the repayment of the amounts paid hereunder, subjectto the other terms and conditions of this Agreement, together with such otherobligations or interests as may arise hereunder in favor of the parties hereto.

 

3

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(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 andfiled, at its own expense, financing statements or other similar filings (andcontinuation statements with respect to such financing statements or othersimilar filings when applicable), (i) with respect to the ContributedReceivables and (ii) with respect to any other Receivable Assets for whichan assignment or the creation of a security interest (as defined in theapplicable UCC or other similar applicable laws, legislation or statute) may beperfected under the applicable UCC or other applicable laws, legislation orstatute by such filing, in each case meeting the requirements of applicable lawin such manner and in such jurisdictions as are necessary to perfect andmaintain the perfection of the transfer, assignment, conveyance andcontribution of such Contributed Receivables and any other Receivable Assetsrelated thereto to the Company, and to deliver to the Company (a) on orprior to the date hereof, a photocopy, certified by a Responsible Officer ofthe Contributor to be a true and correct copy, of each such financing statementor other filing to be made on or prior to the date hereof and (b) withinten (10) days after the date hereof, a file-stamped copy or certifiedstatement of such financing statement (or the similar filing) or other evidenceof 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 ContriubtedReceivables, that it will or will cause, as agent of the Company,(A) (i) on the date hereof and thereafter, direct (or cause theMaster Servicer to direct) each Originator to identify on its extractionrecords relating to Receivables from its master database of receivables, thatthe Contributed Receivables and all other Receivable Assets related theretohave been transferred, assigned, conveyed and contributed to the Company inaccordance with this Agreement and (ii) acknowledge, deliver or transmitor cause to be delivered or transmitted to the Master Servicer a Daily Reportas to all such Contributed Receivables, as of the applicable date ofcontribution and (B) use its reasonable best efforts to cause theapplicable Originator of the Receivables purchased by the Contributor to(i) on the date hereof and thereafter to identify on its extractionrecords relating to Purchased Receivables from its master database ofreceivables, that all such Purchased Receivables and all other ReceivableAssets related thereto have been transferred, assigned, conveyed andcontributed to the Company in accordance with this Agreement and(ii) acknowledge, deliver or transmit or cause to be delivered ortransmitted to the Master Servicer an Originator Daily Report as to all suchPurchased Receivables, as of the applicable Contribution Date.

 

(e)           All Contributed Receivables hereundershall be without recourse to, or any representation or warranty of any kind(express or implied) by, the Contributor except as otherwise specificallyprovided herein. The foregoing contribution, assignment, transfer andconveyance does not constitute and is not intended to result in the creation orassumption by the Company of any obligation of the Contributor or any otherperson in connection with the Contributed Receivables or any agreement orinstrument relating thereto, including any obligation to any Obligor, except asexpressly provided herein or in the Servicing Agreement.

 

2.02         Contribution Value. Thecontribution value (the “Contribution Value”) for the ContributedReceivables and the other Receivable Assets related thereto shall be deemed tobe the product of (a) the aggregate outstanding Principal Amount of suchContributed Receivables as set forth in the applicable Originator Daily Reportidentifying such Contributed Receivables and (b) one (1) minus theDiscounted Percentage applicable to Contributed Receivables. The Company shallcause to Master Servicer to calculate the Contribution Value on eachContribution Date, and in the absence of manifest error such amount shall bedeemed to be conclusive. The Company shall cause to Master Servicer to maintainin its books and records a ledger entitled the “distributable assets ledger.”  For each Contributed Receivable, the Companyshall credit to the distributable assets ledger an amount equal to theContribution Value of such Contributed Receivable (net of the deductionsreferred to in Section 2.02(b), Section 2.06(a) or Section 2.06(b)).

 

4

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2.03         Intentionally Omitted.

 

2.04         No Repurchase. Subject toSection 2.06, the Contributor shall not have any right or obligation underthis Agreement, by implication or otherwise, to repurchase from the Company anyReceivable Assets or to rescind or otherwise retroactively effect any purchaseof any Receivable Assets after the related Contribution Date; providedthat the foregoing shall not be interpreted to limit the right of the Companyto receive a Contributor Dilution Adjustment Payment, a Contributor AdjustmentPayment or a Contributor Indemnification Payment.

 

2.05         Rebates, Adjustments, Returns,Reductions and Modifications. From time to time the Contributor may make aDilution Adjustment to a Contributed Receivable in accordance with thisSection 2.05 and Section 6.02; provided that if theContributor or any Originator cancels an invoice related to such ContributedReceivable, either (i) such invoice must be replaced, or caused to bereplaced, by the Contributor as part of a “credit and re-bill” (as defined inthe definition of Dilution Adjustment) with an invoice relating to the sametransaction of equal or greater Principal Amount within 5 Business Days of suchcancellation, (ii) such invoice must be replaced, or caused to bereplaced, by the Contributor as part of a “credit and re-bill” (as defined inthe definition of Dilution Adjustment) with an invoice relating to the sametransaction of a lesser Principal Amount within 5 Business Days of suchcancellation and the Contributor must make a Contributor Dilution AdjustmentPayment, to the Company Concentration Account, in an amount equal to thedifference between such cancelled and replacement invoices or (iii) theContributor must make a Contributor Dilution Adjustment Payment, to therelevant Company Receipts Account in an amount equal to the full value of suchcancelled invoice pursuant to this Section 2.05. The Contributor agrees topay to the Company, on the Contribution Date immediately succeeding the dateany Dilution Adjustment is granted or made pursuant hereto, the amount of anysuch Dilution Adjustment (a “Contributor Dilution Adjustment Payment”). Theamount of any Dilution Adjustment shall be set forth on the first Daily Reportprepared after the date on which such Dilution Adjustment was granted or made.

 

2.06         Payments in Respect of IneligibleReceivables and Originator Indemnification Payments.

 

(a)           Adjustment Payment Obligation.In the event of a breach of any of the representations and warranties containedin Sections 4.02(a), 4.02(b), 4.02(c), 4.02(d) or 4.02(f) in respect ofany Contributed Receivable or if the Company’s interest in any ContributedReceivable is not a full legal and beneficial ownership, the Contributor shall,within 30 days of the earlier of its knowledge or receipt of writtennotice of such breach or defect from the Company, remedy the matter giving riseto such breach of representation or warranty if such matter is capable of beingremedied. If such matter is not capable of being remedied or is not so remediedwithin said period of 30 days, the Contributor upon request of the Companyshall repurchase the relevant Contributed Receivable from the Company at arepurchase price (without duplication of any Contributor Dilution AdjustmentPayments made pursuant to Section 2.05 hereof), equal to the originalPrincipal Amount of such Contributed Receivable less Collections received bythe Company in respect of such Contributed Receivable (the “ContributorAdjustment Payment”), which payment shall be in the same currency as suchContributed Receivable. Upon the payment of a Contributor Adjustment Paymenthereunder, the Company shall pay to the Contributor all Collections receivedsubsequent to such repurchase with respect to such repurchased Receivable. Theparties agree that if there is a breach of any of the representations andwarranties of a Contributor contained in Section 4.02(a), 4.02(b) or4.02(c) in respect of or concerning any Contributed Receivable, the Contributor’sobligation to pay the Contributor Adjustment Payment under thisSection 2.06 is a reasonable pre-estimate of loss and not a penalty (andneither the Company nor any other person or entity having an interest in thisAgreement through the Company shall be entitled to any other remedies as aconsequence of any such breach).

 

5

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(b)           Special Indemnification. Inaddition to its obligations under Section 8.02 hereunder, the Contributoragrees to pay, indemnify and hold harmless (without duplication of anyContributor Dilution Adjustment Payments made pursuant to Section 2.05hereof) the Company from any loss, liability, expense, damage or injury whichmay at any time be imposed on, incurred by or asserted against the Company in anyway relating to or arising out of (i) any Contributed Receivable becomingsubject to any defense, dispute, offset or counterclaim of any kind (other thanas expressly permitted by this Agreement or the Pooling Agreement or anySupplement) or (ii) the Contributor breaching any covenant containedherein with respect to any Contributed Receivable and such ContributedReceivable (or a portion thereof) ceasing to be an Eligible Receivable (each ofthe foregoing events or circumstances being a “Contributor IndemnificationEvent”). The amount of such indemnification shall be equal to the originalPrincipal Amount of such Contributed Receivable less Collections received bythe Company in respect of such Contributed Receivable (the “ContributorIndemnification Payment”). Such payment shall be made on or prior to the10th Business Day after the day the Company requests such payment or theContributor obtains knowledge thereof unless such Contributor IndemnificationEvent shall have been cured on or before such 10th Business Day; provided,however, that in the event that (x) an Originator Termination Eventwith respect to the Contributor has occurred and is continuing or (y) theCompany shall be required to make a payment with respect to such ContributedReceivable pursuant to Section 2.05 of the Pooling Agreement and theCompany has insufficient funds to make such a payment, the Contributor shallmake such payment immediately. The Company shall have no further remedy againstthe Contributor in respect of such a Contributor Indemnification Event unlessthe Contributor fails to make a Contributor Indemnification Payment on or priorto such 10th Business Day or on such earlier day in accordance with the provisoset forth in this subsection 2.06(b). Upon receiving a ContributorIndemnification Payment, the Company shall pay to the Contributor allCollections received subsequent to such payment with respect to the ContributedReceivable in respect of which a Contributor Indemnification Payment is made.

 

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

 

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

 

2.09         Power of Attorney. TheContributor authorizes each of the Company and the Trustee, and herebyirrevocably appoints each of the Company and the Trustee, as its attorney-in-factcoupled with an interest, with full power of substitution and with fullauthority in place of the Contributor, to take any and all steps in theContributor’s name and on behalf of the Contributor, that are necessary ordesirable, in the determination of the Company or the Trustee (as applicable),to collect amounts due under the Contributed Receivables, including:  (a) endorsing the Contributor’s name onchecks and other instruments representing Collections of ContributedReceivables 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 formoneys due and to become due under or in connection with therewith and to 

 

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file any claims or take any action or institute anyproceedings that the Company or the Trustee (as applicable) (or any designeethereof) may deemed to be necessary or desirable for the collection thereof orto enforce compliance with the other terms and conditions of, or to perform anyobligations or enforce any rights of the Contributor in respect of, theReceivable Assets. The rights under this Section 2.09 shall not beexercisable with respect to the Contributor unless an Originator TerminationEvent has occurred and is continuing with respect to the Contributor or aProgram Termination Event as set forth in Section 7.02(a) hereof or an EarlyAmortization Event has occurred and is continuing.

 

**3.            **CONDITIONSTO CONTRIBUTIONS

** **

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

 

(a)           the Company shall have receivedcopies of duly adopted resolutions (or, if applicable, a unanimous consent) ofthe Board of Directors of the Contributor, as in effect on the date hereof,authorizing the execution of this Agreement and the consummation of theTransactions pursuant to the Transaction Documents;

 

(b)           the Company shall have receivedcopies of a Certificate of Good Standing for the Contributor issued by theSecretary of State of Delaware;

 

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

 

(d)           the Company shall have receivedcopies of fully executed counterparts of this Agreement, the Pooling Agreement,the Servicing Agreement, the Series 2000-1 Supplement, the U.S.Receivables Purchase Agreement, the U.K. Receivables Purchase Agreement, theOmnibus Receivables Purchase Agreement and the Investor Certificates;

 

(e)           the Company shall have receivedcopies of legal opinions, in each case, dated the date hereof and addressed toeach Funding Agent, the Company and the Trustee:

 

(i)            from Counsel to each Originator inform and substance satisfactory to the Company, the Trustee and each FundingAgent; and

 

(ii)           from Counsel to the Contributor, inform and substance satisfactory to the Company, the Trustee and each FundingAgent.

 

(f)            the Company shall have received, tothe extent in writing, the Policies of the Contributor and each Originator;

 

(g)           the Company shall have receivedcopies of proper financing statements, which will be filed on or prior to thedate hereof, naming the Contributor and each Originator as the debtor in favorof, in each case, the Company as the secured party or other similar instrumentsor documents as 

 

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may be necessary or in the reasonable opinion of theCompany or any Funding Agent, desirable under the UCC of all appropriatejurisdictions to perfect the Company’s ownership interest in the ReceivableAssets contributed hereunder;

 

(h)           the Company shall have receivedcertified copies of requests for information or copies (or a similar searchreport certified by parties acceptable to the Trustee and each Funding Agent)dated a date reasonably near the date hereof listing all effective financingstatements or charges which name the Contributor (under its present name andany previous name) as debtor and which are filed in jurisdictions in which thefilings were made pursuant to clause (h) above, together with copies ofsuch financing statements (none of which shall cover any Receivables or ReceivableAssets related thereto, if so requested by the Company or any Funding Agent);

 

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

 

(j)            the Company shall have received themost recent audited consolidated financial statements of the Contributor andits consolidated Subsidiaries;

 

(k)           the Company shall be satisfied thatthe Contributor’s and any Originator’s systems, procedures and record keepingrelating to the Contributed Receivables are sufficient and satisfactory inorder to permit the contribution, assignment, transfer and conveyance of suchContributed Receivables and the administration of such Contributed Receivablesin accordance with the terms and intent of this Agreement;

 

(l)            the Company shall have received asolvency certificate delivered by each Originator with respect to eachOriginator’s solvency in the form attached to the applicable ReceivablesPurchase Agreement;

 

(m)          Intentionally Omitted;

 

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

 

(o)           if applicable, all conditionsprecedent to the sale of the Purchased Receivables from the related Originatorto the Contributor contained in the related Receivables Purchase Agreementshall have been satisfied.

 

3.02         Conditions Precedent to allContributions of Receivables. The obligation of the Company to accept acontribution of Receivable Assets on each Contribution Date is subject to thesatisfaction of the following conditions precedent, that, on and as of therelated Contribution Date, the following statements shall be true (and thedelivery by or on behalf of the Contributor of the Originator Daily Report forsuch Contributed Receivables on such Contribution Date shall constitute arepresentation and warranty by the Contributor that on such Contribution Datethe statements in clauses (a) and (b) below are true):

 

(a)           the representations and warranties ofthe Contributor contained in Sections 4.01 shall be true and correct onand as of such Contribution Date as though made on and as of such date, exceptinsofar as such representations and warranties are expressly made only as ofanother date (in which case they shall be true and correct as of such otherdate);

 

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(b)           after giving effect to suchcontribution, no Originator Termination Event or Potential OriginatorTermination Event with respect to the Contributor or any Originator and noPotential Termination Event or Program Termination Event shall have occurredand be continuing;

 

(c)           after giving effect to suchcontribution, no Early Amortization Event or Potential Early Amortization Eventwith respect to any Outstanding Series shall have occurred and be continuing;

 

(d)           since the date hereof, no materialadverse change has occurred in the overall rate of collection of theContributed Receivables;

 

(e)           the Company shall have received suchother approvals, opinions or documents as the Company may reasonably request;and

 

(f)            if applicable, all conditionsprecedent to the sale of such Eligible Receivables from the related Originatorto the Contributor contained in the related Receivables Purchase Agreementshall have been satisfied;

 

provided, however, that thefailure of the Contributor to satisfy any of the foregoing conditions shall notprevent the Contributor from subsequently contributing Eligible Receivablesoriginated by it, or purchased by it pursuant to a Receivables PurchaseAgreement, upon satisfaction of all such conditions.

 

3.03         Conditions Precedent to theContributor’s Obligations on the Initial Contribution Date and eachContribution Date thereafter. The obligations of the Contributor on thedate hereof and each Contribution Date thereafter shall be subject to theconditions precedent, which may be waived by the Contributor, that theContributor shall have received on or before the date hereof (with respect tothe initial contribution hereunder) and for subsequent contributions, therelevant Contribution Date, the following, each in form and substancesatisfactory to the Contributor:

 

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

 

(b)           a certificate of a Responsible Officerof the Company certifying (i) the names and signatures of the managersauthorized on its behalf to execute this Agreement and the other TransactionDocuments to which it is a party and any other documents to be delivered by ithereunder or thereunder, (ii) that attached thereto is a true, correct andcomplete copy of the Company’s Certificate of Formation and Limited LiabilityCompany Agreement, and (iii) that attached thereto is a true correct andcomplete copy of duly adopted resolutions of the Shareholders of the Company,authorizing the execution of this Agreement and the consummation of theTransactions pursuant to the Transaction Documents.

 

**4.            **REPRESENTATIONSAND WARRANTIES

** **

4.01         Representations and Warranties ofthe Contributor. The Contributor represents and warrants to the Company asof the date hereof that:

 

(a)           Organization; Powers. It(i) is a limited liability company duly organized, validly existing and ingood standing under the laws of the State of Delaware, (ii) has allrequisite power and authority to own its property and assets and to carry onits business as now conducted and as proposed to be conducted, (iii) isqualified to do business in, and is in good standing in, every jurisdictionwhere the nature of its business so requires, except where the failure so toqualify could not reasonably be expected to result in a Material Adverse Effectwith respect to it and (iv) has the limited liability company power andauthority to execute, deliver and perform its obligations under this Agreementand each of the other 

 

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Transaction Documents to which it is a party and eachother agreement or instrument contemplated hereby or thereby to which it is orwill be a party.

 

(b)           Authorization. The execution,delivery and performance by the Contributor of each of the TransactionDocuments to which it is a party and the performance of the Transactions(i) have been duly authorized by all requisite or limited liabilitycompany 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 materialContractual Obligation to which it is a party or by which it or any of itsproperty is or may be bound, (B) be in conflict with, result in a breachof or constitute (alone or with notice or lapse of time or both) a defaultunder, or give rise to any right to accelerate or to require the prepayment,repurchase or redemption of any obligation under any Transaction Document orany other material Contractual Obligation to which it is a party or by which itor 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), individuallyor in the aggregate, could not reasonably be expected to have a MaterialAdverse Effect with respect to it or (C) result in the creation orimposition of any Lien upon the Contributed Receivables (other than PermittedLiens).

 

(c)           Enforceability. Each of thisAgreement and the other Transaction Documents to which it is a party have beenduly executed and delivered by the Contributor and constitutes a legal, validand binding obligation of the Contributor enforceable against such Contributorin accordance with its respective terms, subject (a) to applicablebankruptcy, insolvency, reorganization, moratorium and other similar lawsaffecting the enforcement of creditors’ rights generally, from time to time ineffect and (b) to general principles of equity.

 

(d)           Governmental Approvals. Noaction, consent or approval of, registration or filing with or any other actionby any Governmental Authority is or will be required in connection with theexecution and delivery of this Agreement or the consummation of the Transactionscontemplated hereby, except for (i) the filing of UCC financing statements(or other similar filings) in any applicable jurisdictions necessary to perfectthe Company’s ownership interest in the Contributed Receivables pursuant tosubsection 3.01(h), (ii) such as have been made or obtained and arein full force and effect and (iii) such actions, consents, approvals andfilings the failure of which to obtain or make could not reasonably be expectedto result in a Material Adverse Effect with respect to it.

 

(e)           Litigation; Compliance with Laws.

 

(i)            There are no actions, suits orproceedings at law or in equity or by or before any Governmental Authority nowpending or, to the knowledge of the Contributor, threatened in writing againstthe Contributor or any Originator in respect of which there exists a reasonablepossibility of an outcome that would result in a Material Adverse Effect withrespect to it; and

 

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

 

(f)            Agreements.

 

(i)            Neither it, nor any Originator is aparty to any agreement or instrument or subject to any corporate restrictionthat has resulted or could reasonably be expected to result in a MaterialAdverse Effect with respect to it; and

 

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

 

(g)           Federal Reserve Regulations. Neitherit nor any Originator is engaged principally, or as one of its importantactivities, in the business of extending credit for the purpose of buying orcarrying Margin Stock.

 

(h)           Investment Company Act. It isnot an “investment company” as defined in, or subject to regulation under, the1940 Act.

 

(i)            Tax Returns. It has filed orcaused to be filed all material tax returns and has paid or caused to be paidor made adequate provision for all taxes due and payable by it and allassessments received by it except to the extent that its obligations to makesuch payment (i) is being contested in good faith or (ii) suchfailure with respect to such filing or payment could not reasonably be expectedto result in a Material Adverse Effect with respect to it.

 

(j)            ERISA Matters.

 

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

 

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

 

(iii)          as of the date hereof, the presentvalue of all benefit liabilities under each Plan of the Contributor or any ofits ERISA Affiliates (on an ongoing basis and based on those assumptions usedto 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 ERISAAffiliates has incurred any Withdrawal Liability that could reasonably beexpected to result in a Material Adverse Effect with respect to it; and

 

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

 

(k)           Accounting Treatment. Except tothe extent otherwise required by law, the Contributor will not prepare anyfinancial statements that shall account for the transactions contemplatedhereby, nor will it in any other respect account for the transactionscontemplated hereby, in a manner that is inconsistent with the Company’sownership interest in the Receivable Assets. The Contributor intends 

 

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to treat the contribution of the ContributedReceivables as a contribution of such Receivables for all tax, accounting andregulatory purposes.

 

(l)            Intentionally Omitted.

 

(m)          Intentionally Omitted.

 

(n)           Books and Records. The officesat which the Contributor keeps its records concerning the ContributedReceivables (x) are located as set forth on Schedule 1 hereto or(y) are in locations as to which the Contributor has notified the Companyof the location thereof in accordance with Section 5.06.

 

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

 

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

 

(q)           Solvency. No Insolvency Eventwith respect to the Contributor or any Originator has occurred and thecontribution, assignment, conveyance and transfer of the ContributedReceivables by the Contributor to the Company has not been made incontemplation of the occurrence thereof. Both prior to and after giving effectto the transactions occurring on the date hereof and after giving effect toeach subsequent transaction contemplated hereunder, including any contributionof Contributed Receivables (i) the fair value of the assets of theContributor and each Originator, taken individually at a fair valuation, willexceed the debts and liabilities, subordinated, contingent or otherwise, of theContributor or such Originator, as applicable; (ii) the present fairsaleable value of the property of the Contributor and each Originator, takenindividually and not on a consolidated basis, will be greater than the amountthat will be required to pay the probable liability of the Contributor or suchOriginator, as applicable, on its debts and other liabilities, subordinated,contingent or otherwise, as such debts and other liabilities become absoluteand matured; (iii) the Contributor will be able to pay its debts andliabilities, subordinated, contingent or otherwise, as such debts andliabilities become absolute and matured; and (iv) the Contributor will nothave unreasonably small capital with which to conduct the business in which itis engaged as such business is now conducted and is proposed to be conducted. Forall purposes of clauses (i) through (iv) above, the amount of contingentliabilities at any time shall be computed as the amount that, in the light ofall the facts and circumstances existing at such time, represents the amountthat can reasonably be expected to become an actual or matured liability. TheContributor does not intend to, nor does it believe that it will nor that anyOriginator will, incur debts beyond its or their ability to pay such debts asthey mature, taking into account the timing of and amounts of cash to bereceived by the Contributor or each Originator, as the case may be, and thetiming of the amounts of cash to be payable on or in respect of itsIndebtedness.

 

(r)            No Originator Termination Event.No Potential Originator Termination Event or Originator Termination Event withrespect to the Contributor or any Originator has occurred and is continuing.

 

(s)           No Program Termination Event. NoPotential Program Termination Event or Program Termination Event shall haveoccurred and be continuing.

 

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(t)            No Fraudulent Transfer. It isnot entering into this Agreement with the actual or constructive intent tohinder, delay, or defraud its present or future creditors and is receivingreasonably equivalent value and fair consideration for the ContributedReceivables.

 

(u)           Collection Procedures. It, andeach Originator of Contributed Receivables, has in place the Policies and hasnot acted in contravention of any such Policies with respect to the ContributedReceivables.

 

(v)           No Early Amortization Event. NoEarly Amortization Event or Potential Early Amortization Event has occurred andis continuing.

 

(w)          No Material Adverse Effect. SinceDecember 31, 2005, no event has occurred which has had a Material AdverseEffect with respect to it.

 

(x)            No Foreclosure Act. No actionor proceeding has been brought seeking to foreclose on the Contributor’smembership interest in the Company.

 

(y)           Anti-Terrorism Law.

 

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

 

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

 

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

 

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

 

(C)           A person with which the Contributoris prohibited form dealing or otherwise engaging in any transaction by any Anti-TerrorismLaw;

 

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

 

(E)           A person that is named as a “speciallydesignated national and blocked person” on the most current list published bythe US Treasury Department, Office of Foreign Assets Control at its officialwebsite or any replacement website or other replacement official publication ofsuch list.

 

The representations and warranties as of the date madeset forth in this Section 4.01 shall survive the transfer, assignment,conveyance and contribution of the Contributed Receivables and the otherReceivable Assets related thereto to the Company. Upon discovery by aResponsible Officer of the 

 

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Company or the Master Servicer or by a ResponsibleOfficer of the Contributor of a breach of any of the foregoing representationsand warranties, the party discovering such breach shall give prompt writtennotice to the Master Servicer, the Company or the Contributor, as the case maybe.

 

4.02         Representations and Warranties ofthe Contributor Relating to the Contributed Receivables. The Contributorhereby represents and warrants to the Company on each Contribution Date withrespect to the Contributed Receivables as of the relevant Contribution Date:

 

(a)           Receivables Description. EachOriginator Daily Report delivered, transmitted or received by the Contributorand referred to in subsection 2.01(a) of this Agreement sets forth in allmaterial respects an accurate and complete listing of all ContributedReceivables to be contributed to the Company on such Contribution Date [or (asthe case may be) offered for sale to the Contributor] on such Contribution Dateand the information contained therein in accordance with Exhibit B to thePooling Agreement with respect to each such Contributed Receivable is true andcorrect as of such date.

 

(b)           No Liens. Each ContributedReceivable existing on the date hereof or, in the case of Receivablescontributed, transferred, assigned and conveyed to the Company after the datehereof, on such Contribution Date, has been contributed, transferred, assignedand conveyed to the Company free and clear of any Liens, (other than PermittedLiens).

 

(c)           Eligible Receivable. On thedate hereof, each Contributed Receivable that is included in the Daily Reportsdated 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 aContribution Date after the date hereof, each such Contributed Receivablecontributed to the Company on such Contribution Date is an Eligible Receivableon such Contribution Date.

 

(d)           Filings. All filings and otheracts (including notifying related Obligors of the assignment of a ContributedReceivable, if applicable) necessary or advisable under the UCC or under otherapplicable laws of jurisdictions outside the United States (to the extentapplicable) shall have been made or performed in order to grant the Company onthe applicable Contribution Date a full legal and beneficial ownership interestin respect of such Contributed Receivables then existing or thereafter arisingfree and clear of any Liens (except for Permitted Liens).

 

(e)           Policies. Since the datehereof, there have been no material changes in the Policies, other than aspermitted hereunder.

 

(f)            True Contribution. Title toeach Contributed Receivable will be vested in the Company as contemplated insubsection 4.02(b) and subsection 4.02(d), and such ContributedReceivables will not form part of the estate of the Contributor or relevantOriginator upon a bankruptcy of the Contributor.

 

The representations and warranties as of the date madeset forth in this Section 4.02 shall survive the contribution, transfer,assignment and conveyance of the Contributed Receivables to the Company. Upondiscovery by a Responsible Officer of the Company or the Master Servicer or aResponsible Officer of the Contributor of a breach of any of therepresentations and warranties (or of any Contributed Receivable encompassed bythe representation and warranty in subsection 4.02(c) not being an EligibleReceivable as of the relevant Contribution Date), the party discovering suchbreach shall give prompt written notice to the respective other parties.

 

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

 

(a)           Organization; Powers. TheCompany (i) is a limited liability company duly organized, validlyexisting and in good standing under the laws of the State of Delaware,(ii) has all requisite power and authority to own its property and assetsand 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, eachjurisdiction where the nature of its business so requires, except where thefailure so to qualify would not have a Material Adverse Effect with respect toit and (iv) has the limited liability company power and authority toexecute, deliver and perform its obligations under this Agreement and each of theother Transaction Documents to which it is a party and each other agreement orinstrument 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 towhich it is a party and the performance of the Transactions (i) have beenduly authorized by all requisite limited liability company and, if applicableand required, Shareholder action and (ii) will not (A) violate(1) any Requirement of Law or (2) any provision of any TransactionDocument or any other material Contractual Obligation to which the Company is aparty or by which it or any of its property is or may be bound, (B) be inconflict with, result in a breach of or constitute (alone or with notice orlapse of time or both) a default under, or give rise to any right to accelerateor to require the prepayment, repurchase or redemption of any obligation underany Transaction Document or any other material Contractual Obligation to whichit 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 inclauses (A) or (B), individually or in the aggregate, could not reasonablybe expected to have a Material Adverse Effect with respect to it or(C) result in the creation or imposition of any Lien upon the ContributedReceivables (other than Permitted Liens).

 

(c)           Enforceability. This Agreementand each other Transaction Document to which it is a party have been duly executedand delivered by the Company and constitutes, a legal, valid and bindingobligation of the Company enforceable against the Company in accordance withits respective terms, subject (a) to applicable bankruptcy, insolvency,reorganization, moratorium and other similar laws affecting the enforcement ofcreditors’ rights generally, from time to time in effect and (b) togeneral principles of equity.

 

(d)           Accounting Treatment. Exceptto the extent otherwise required by law, the Company will not prepare anyfinancial statements that shall account for the transactions contemplatedhereby, nor will it in any other respect account for the transactionscontemplated hereby, in a manner that is inconsistent with the Company’sownership interest in the Contributed Receivables.

 

(e)           Contributor. The Contributoris a Shareholder in the Company, and the Contributor’s Shares in the Companyare owned free and clear of all Liens, other than any liens in favor of theCompany arising under the Limited Liability Company Agreement, providedthat the Contributor may pledge any or all of its Shares to the CollateralAgent under the Credit Agreement.

 

**5.            **AFFIRMATIVECOVENANTS

** **

The Contributor hereby agrees that, so long as thereare any amounts outstanding with respect to Contributed Receivables or until anEarly Program Termination, whichever is later, the Contributor shall, and shallcause each Originator to:

 

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5.01         Financial Statements, Reports, etc.:

 

(a)           Furnish to the Company, within150 days after the end of each fiscal year, the balance sheet and relatedstatements of income, members’ equity and cash flows showing the financialcondition of the Contributor as of the close of such fiscal year and theresults of its operations during such year, all audited by the Contributor’sIndependent Public Accountants and accompanied by an opinion of suchaccountants (which shall not be qualified in any material respect) to theeffect that such financial statements fairly present in all material respectsthe financial condition and results of operations of the Contributor inaccordance with GAAP consistently applied;

 

(b)           Furnish to the Company, within60 days after the end of each of the first three fiscal quarters of eachfiscal year, the Contributor’s unaudited balance sheet and related statementsof income, members’ equity and cash flows for the period from the beginning ofsuch fiscal year to the end of such quarter, all certified by a ResponsibleOfficer of the Contributor;

 

(c)           Furnish to the Company, together withthe financial statements required pursuant to clauses (i) and (ii) above,a compliance certificate signed by a Responsible Officer of the Company statingthat (x) the attached financial statements have been prepared in accordancewith GAAP and accurately reflect the financial condition of the Company and(y) to the best of such Responsible Officer’s knowledge, no EarlyAmortization Event or Potential Early Amortization Event exists, or if anyEarly Amortization Event or Potential Early Amortization Event exists, statingthe nature and status thereof;

 

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

 

(e)           Furnish to the Company, promptly, allinformation, documents, records, reports, certificates, opinions and noticesreceived by the Contributor from an Originator under any Receivables PurchaseAgreement;

 

(f)            Intentionally Omitted;

 

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

 

(h)           Furnish to the Company, promptly,from time to time, such other information regarding the operations, businessaffairs and financial condition of the Contributor, or compliance with theterms of any Transaction Document, in each case as the Company or any FundingAgent may reasonably request.

 

5.02         Compliance with Law and Policies.

 

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

 

(b)           Perform its obligations in accordancewith the Policies, as amended from time to time in accordance with theTransaction Documents, in regard to the Contributed Receivables and the otherReceivable Assets.

 

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

 

5.04         Separate Company Existence.

 

(a)           Except as set forth in theTransaction Documents, maintain its deposit account or accounts, separate fromthose of the Company and ensure that its funds will not be diverted to theCompany, nor will such funds be commingled with the funds of the Company;

 

(b)           To the extent that it shares anyofficers or other employees with the Company, the salaries of and the expensesrelated to providing benefits to such officers and other employees shall befairly allocated among it and the Company, and it and the Company shall beartheir fair shares of the salary and benefit costs associated with all suchcommon officers and employees;

 

(c)           To the extent that it jointlycontracts with the Company to do business with vendors or service providers orto share overhead expenses, the costs incurred in so doing shall be allocatedfairly between it and the Company and it and the Company shall bear their fairshares of such costs. To the extent that it contracts or does business withvendors or service providers where the goods and services provided arepartially for the benefit of the Company, the costs incurred in so doing shallbe fairly allocated between it and the Company in proportion to the benefit ofthe goods or services each is provided, and it and the Company shall bear theirfair shares of such costs. All material transactions between it and theCompany, whether currently existing or hereafter entered into, shall be only onan arm’s length basis;

 

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

 

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

 

(f)            Conduct its affairs strictly inaccordance 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 toauthorize all action, keeping separate minutes of its meetings, passing allresolutions or consents necessary to authorize actions taken or to be taken,and maintaining separate books, records and accounts, including, but notlimited to, payroll and intercompany transaction accounts;

 

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

 

(h)           Take, or refrain from taking, as thecase may be, all other actions that are necessary to be taken or not to betaken in order (x) to ensure that the assumptions and factual recitationsset forth in the Specified Bankruptcy Opinion Provisions remain true andcorrect with respect to it (and, to the extent within its control, to ensurethat the assumptions and factual recitations set forth in the SpecifiedBankruptcy Opinion Provisions remain true and correct with respect to theCompany) and (y) to comply with those procedures described in suchprovisions that are applicable to it.

 

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5.05         Inspection of Property; Books andRecords; Discussions. Keep proper books of records and account in whichentries in conformity with GAAP shall be made of all dealings and transactionsin relation to its business and activities; and permit representatives of theCompany and the Funding Agents upon reasonable advance notice to visit andinspect any of its properties and examine and make abstracts from any of itsbooks and records during normal business hours on any Local Business Day and asoften as may reasonably be requested, subject to the Contributor’s or suchOriginator’s security and confidentiality requirements and to discuss thebusiness, operations, properties and financial condition of the Contributor andeach Originator with officers and employees of the Contributor and with itsIndependent Public Accountants.

 

5.06         Location of Records. Keep theoffices where it keeps the records concerning the Receivable Assets (and alloriginal documents relating thereto), at the locations referred to for it onSchedule 2 hereto or upon 60 days’ prior written notice to theCompany, 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 ofthe Obligors and retain copies of all documents relating to each Obligor ascustodian and agent for the Company and other Persons with interests in theContributed Receivables originated by it, as well as retain all OriginatorDocuments.

 

5.08         Obligations. Pay, discharge orotherwise satisfy at or before maturity or before they become delinquent, asthe case may be, all its obligations of whatever nature (including, withoutlimitation, all taxes, assessments, levies and other governmental chargesimposed on it), except where the amount or validity thereof is currently beingcontested in good faith by appropriate proceedings and reserves in conformitywith GAAP with respect thereto have been provided on the books of theContributor. Defend the right, title and interest of the Company in, to andunder the Receivable Assets, whether now existing or hereafter created, againstall claims of third parties claiming through the Contributor. The Contributorwill duly fulfill all obligations on its part to be fulfilled under or inconnection with each Receivable and will do nothing to materially impair therights of the Company in such Receivable.

 

5.09         Collections. Instruct eachObligor to make payments in respect of its Contributed Receivables to aCollection Account and to comply in all material respects with procedures withrespect to Collections reasonably specified from time to time by the Company. Inthe event that any payments in respect of any such Contributed Receivables aremade directly to the Contributor or an Originator (including, withoutlimitation, any employees thereof or independent contractors employed thereby),the Contributor shall, and shall cause such Originator to, withinone (1) Local Business Day of receipt thereof, deliver or depositsuch amounts to a Collection Account and, prior to forwarding such amounts, theContributor shall, or shall cause such Originator to, as applicable, hold suchpayments in trust for the account and benefit of the Company.

 

5.10         Furnishing Copies, Etc.  Furnish to the Company:

 

(a)           Within five (5) LocalBusiness Days of the Company’s request, a certificate of a Responsible Officerof the Contributor, certifying, as of the date thereof, to the knowledge ofsuch officer, that no Potential Originator Termination Event or OriginatorTermination Event with respect to it or of any Potential Program TerminationEvent or Program**Termination Event has occurredand is continuing or if one has so occurred, specifying the nature and extentthereof and any corrective action taken or proposed to be taken with respectthereto;

 

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(b)           Promptly after a Responsible Officerof the Contributor obtains knowledge of the occurrence of any OriginatorTermination Event or Potential Originator Termination Event with respect to itand no 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 respectto the Contributed Receivables purchased from an Originator, as the Company mayfrom time to time reasonably request; and

 

(d)           Promptly upon determining that anyContributed Receivable was not an Eligible Receivable as of the date providedtherefor, written notice of such determination.

 

5.11         Intentionally Omitted:

 

5.12         Assessments. Pay before the samebecome delinquent and discharge all taxes, assessments, levies and othergovernmental charges imposed on it except such taxes, assessments, levies andgovernmental charges which are being contested in good faith and for which theContributor has set aside on its books adequate reserves.

 

5.13         Intentionally Omitted.

 

5.14         Notices. Promptly give writtennotice to the Trustee, the Company and each Funding Agent for any OutstandingSeries of the occurrence of any Liens on any Contributed Receivables (otherthan Permitted Liens), Early Amortization Event or Potential Early AmortizationEvent, including the statement of a Responsible Officer of the Contributorsetting forth the details of such Early Amortization Event or Potential EarlyAmortization Event and the action taken, or which the Contributor proposes totake, with respect thereto.

 

5.15         Bankruptcy. Cooperate with theCompany, each Funding Agent and the Trustee in making any amendments to theTransaction Documents and take, or refrain from taking, as the case may be, allother actions deemed reasonably necessary by such Funding Agent and/or Trusteein order to comply with the structured finance statutory exemption set forth inlegislative amendments to the U.S. Bankruptcy Code at or any time after suchamendments are enacted into law; provided, however, that it shallnot be required to make any amendment or to take, or omit from taking, as thecase may be, any action which it reasonably believes would have the effect ofmaterially changing the economic substance of the transaction contemplated bythe Transaction Documents on the date hereof.

 

5.16         Further Action. In addition tothe foregoing:

 

(a)           The Contributor agrees that from timeto time, at its expense, it will promptly execute and deliver all furtherinstruments and documents, and take all further action (including notifying therelated Obligors to the extent necessary to perfect the ownership interest ofthe Company in the Contributed Receivables) that may be necessary in theContributor’s reasonable judgment or that the Company may reasonably request,in order to protect the Company’s right, title and interest in the ContributedReceivables, or to enable the Company to exercise or enforce any of its rightsin respect thereof. Without limiting the generality of the foregoing, theContributor will, and will cause each Originator to, upon the request of theCompany (i) execute and file such financing or continuation statements, oramendments thereto, and such other instruments or notices, as may be necessaryor, in the opinion of the Company, advisable to protect the Company’s ownershipinterest in the Contributed Receivables and (ii) obtain the agreement ofany Person having a Lien on any Contributed Receivables owned by theContributor or an Originator (other than any Permitted Lien) to release suchLien upon the contribution of any such Contributed Receivables to the Company;

 

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(b)           Until the termination of thisAgreement, the Contributor hereby irrevocably authorizes the Company to fileone or more financing or continuation statements (and other similarinstruments), and amendments thereto, relative to all or any part of theReceivable Assets; and

 

(c)           If the Contributor fails to perform anyof its agreements or obligations under this Agreement, following notice to theContributor detailing such delinquency, the Company may (but shall not berequired to) perform, or cause performance of, such agreements or obligations,and the expenses of the Company incurred in connection therewith shall bepayable by the Contributor as provided in Section 8.02. The Company agreespromptly to notify the Contributor after any such performance; provided,however, that the failure to give such notice shall not affect thevalidity of any such performance.

 

5.17         Marking of Records. TheContributor will, and will cause each Originator to, identify on its extractionrecords relating to the Contributed Receivables from its master database ofreceivables that the Contributed Receivables and the Receivable Assets relatedthereto have been contributed to the Company, and thereupon a Participation andsecurity interest granted by the Company to the Trustee. The Contributor agreesthat from time to time it will promptly execute and deliver all instruments anddocuments, and take all further action, that Company may reasonably request inorder to perfect, protect or more fully evidence the Contributor’s ownershipinterest and the Trustee’s first priority perfected security interest in theContributed Receivables.

 

5.18         Intentionally Omitted.

 

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

 

**6.            **NEGATIVECOVENANTS

** **

Except as otherwise provided in Section 6.11, theContributor hereby agrees that, so long as there are any amounts outstandingwith respect to Contributed Receivables or until an Early Program Termination, whicheveris the later, the Contributor shall not, and shall not permit any Originatorto:

 

6.01         Limitations on Transfers ofContributed Receivables, Etc.  At anytime attempt to re-contribute, reconvey, reassign, re-transfer or otherwisepurport to dispose of or attempt to sell, convey assign, transfer or otherwisedisperse any of the Contributed Receivables or any Receivable Assets relatingthereto, except as contemplated by the Transaction Documents.

 

6.02         Extension or Amendment ofContributed Receivables. Extend payment terms, make any Dilution Adjustmentto, rescind, cancel, amend or otherwise modify, or attempt or purport toextend, amend or otherwise modify, the terms of any Contributed Receivablesexcept in accordance with Section 2.05.

 

6.03         Change in Payment Instructions toObligors. Instruct any Obligor to make any payments with respect to anyContributed Receivables originated by it other than, in accordance withSection 5.09, by check or wire transfer to a Collection Account.

 

6.04         Change in Name. Change its name,use an additional name, change its identity or company structure or change itsform or jurisdiction of organization unless at least 60 days’ prior to thedate hereof of any such change it delivers to the Company such documents,instruments or agreements as 

 

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are necessary to reflect such change and to continuethe perfection of the Company’s ownership interest in the ContributedReceivables.

 

6.05         Policies. Make any change ormodification (or permit any change or modification to be made) in any materialrespect to the Policies, except (i) if such changes or modifications arenecessary under any Requirement of Law, or (ii) if such change ormodification, other than a change or modification permitted pursuant toclause (i) above, would reasonably be expected to have a Material AdverseEffect with respect to a Series, with the consent of each Funding Agent.

 

6.06         Modification of Legend. Deleteor otherwise modify the marking on the legend referred to insubsection 2.01(b) of the Pooling Agreement.

 

6.07         Accounting for Contributions. Exceptas otherwise required by law, prepare any financial statements which shallaccount for the transactions contemplated hereby in any manner other than as acontribution of the Contributed Receivables to the Company or in any otherrespect account for or treat the transactions contemplated hereby (includingfor financial accounting purposes, except as required by law) in any mannerother than as contribution of the Contributed Receivables to the Company.

 

6.08         Instruments. Unless delivered tothe Trustee pursuant to Section 2.01(b) of the Pooling Agreement, take anyaction to cause any Contributed Receivable not evidenced by an “instrument” (asdefined in Section 9-102(a)(47) of the applicable UCC) upon origination tobecome evidenced by an instrument, except in connection with the enforcement orcollection of a Defaulted Receivable.

 

6.09         Ineligible Receivables. Withoutthe prior written approval of the Company, take any action relating to suchContributed Receivable which to its knowledge would cause, or would permit suchContributed Receivable to such Receivable to cease to be an EligibleReceivable, except as otherwise expressly provided by this Agreement.

 

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

 

6.11         Intentionally Omitted..

 

6.12         Offices. Move the location ofthe Contributor’s offices where it keeps its records with respect to theContributed Receivables without (i) providing thirty (30) days’prior written notice to the Company, the Trustee and each Funding Agent and(ii) taking all actions reasonably requested by the Trustee (including butnot limited to all filings and other acts necessary or advisable under theapplicable UCC or other applicable laws or similar statute of each relevantjurisdiction) in order to continue the Trust’s first priority perfectedsecurity interest in all Contributed Receivables now owned or hereaftercreated.

 

6.13         Intentionally Omitted.

 

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

 

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6.15         Additional Equity. Permit theCompany to issue or sell any additional Shares, membership interests or equityinterests in the Company to any Person until after the Trust Termination Date.

 

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

 

**7.            **TERMINATIONEVENTS

** **

7.01         Originator Termination Events. Ifany 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 anyamount due hereunder in accordance with the provisions hereof and such failureshall continue unremedied for a period of two (2) Business Days fromthe earlier to occur of (i) the date upon which a Responsible Officer ofthe Contributor obtains actual knowledge of such failure or (ii) the dateon 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 Trusteeor (B) to the Company, to the Trustee and to the Contributor by anyFunding Agent; or

 

(b)           the Contributor shall fail to observeor perform any other covenant or agreement applicable to it contained herein(other than as specified in paragraph (a) of this Section 7.01) thathas a Material Adverse Effect with respect to it and that continues unremedieduntil ten (10) Local Business Days after the date on which writtennotice of such failure, requiring the same to be remedied shall have been given(A) to the Contributor by the Company or the Trustee or (B) to theCompany, to the Trustee and to the Contributor by, provided that if suchfailure may be cured and the Contributor is diligently pursing such cure, suchevent shall not constitute an Originator Termination Event for an additionalthirty (30) days; or

 

(c)           any representation or warranty madeby the Contributor in this Agreement or in any certificate delivered pursuantto this Agreement shall prove to have been incorrect in any material respectwhen made or deemed made, and which continues unremedied untilten (10) Local Business Days after the date on which written noticethereof, requiring the same to be remedied, shall have been given (A) tothe Contributor by the Company or the Trustee or (B) to the Company, tothe Trustee and to the Contributor by any Funding Agent, provided thatif such incorrectness may be cured and the Contributor is diligently pursuingsuch cure, such event shall not constitute an Originator Termination Event foran additional thirty (30) days and providedfurtherthat an Originator Termination Event shall not be deemed to have occurred underthis paragraph (c) based upon a breach of any representation or warrantyset forth in Section 4.02 if the Contributor shall have complied with theprovisions of Section 2.06 in respect thereof; or

 

(d)           a notice of Lien shall have beenfiled by the PBGC against an Originator under Section 412(n) of the Codeor Section 302(f) of ERISA for a failure to make a required installment orother payment to a plan to which Section 412(n) of the Code orSection 302(f) of ERISA applies unless there shall have been delivered tothe Trustee and the Funding Agents proof of release of such Lien; or

 

(e)           a Federal (or equivalent) tax noticeof Lien shall have been filed against an Originator unless there shall havebeen delivered to the Trustee and the Funding Agents proof of release of suchLien; or

 

then, in the case of any Originator Termination Event,so long as such Originator Termination Event shall be continuing, the Companyshall not to accept a contribution of Receivables from the Contributor and 

 

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the Contributor shall be terminated as an Originatorupon 10 days written notice (the date on which such notice becomeseffective, the “Originator Termination Date”) to the Contributor (anysuch termination, an** **”EarlyOriginator Termination”); provided that such removal or terminationshall be in accordance with Section 2.10 of the Pooling Agreement.

 

7.02         Program Termination Events. Ifany of the following events (herein called “Program Termination Events”)shall have occurred and be continuing:

 

(a)           an Insolvency Event shall haveoccurred with respect to the Contributor; or

 

(b)           there shall have occurred and becontinuing (i) an Early Amortization Event set forth in Section 7.01(a) through (e) of the Pooling Agreement or (ii) the Amortization Periodwith respect to all Outstanding Series; or

 

(c)           a notice of Lien shall have beenfiled by the PBGC against the Contributor under Section 412(n) of the Codeor Section 302(f) of ERISA for a failure to make a required installment orother 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 Trustee and theFunding Agents proof of release of such Lien or that the filing of such Lienshall not have a Material Adverse Effect with respect to the Contributor; or

 

(d)           a Federal (or equivalent) tax noticeof Lien shall have been filed against the Contributor unless there shall havebeen delivered to the Trustee and the Funding Agents proof of release of suchLien or that the filing of such Lien shall not have a Material Adverse Effectwith respect to the Contributor; or

 

(e)           an Originator Termination Date shallhave occurred (other than those provided in subsection 7.01(d) andsubsection 7.01(e)) with respect to an Originator that, as of the lastMonthly Settlement Report, had originated more than 10% of the AggregateReceivables Amount reflected on such report; or

 

(f)            an Originator Termination Event(other than those provided in subsection 7.01(d) shall have occurred butsuch Originator has not been terminated within 10 calendar days in accordancewith Section 2.10 of the Pooling Agreement;

 

then, after the expiration of any applicable cureperiod, the obligation of the Company to accept contributions shall terminatewithout notice (such date of termination, the “Program Termination Date”and any such termination, an “Early Program Termination”), and thereshall be an Early Amortization Event pursuant to Section 7.01 of thePooling Agreement.

 

7.03         Remedies.

 

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

 

(b)           The Contributor agrees that, upon theoccurrence and during the continuation of a Program Termination Event asdescribed in subsection 7.02(a) or (b)(i):

 

(i)            the Company (and its assignees)shall have the right at any time to notify, or require that the Contributor, atits expense, notify, the respective Obligors of the grant by the Company of aParticipation of and grant in a security interest in the Contributed 

 

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Receivables and the Receivable Assets related theretoand may direct that payment of all amounts due or to become due under theContributed Receivables be made directly to the relevant Company ConcentrationAccounts;

 

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

 

(iii)          the Contributor in such capacity or inits capacity as Local Servicer, shall, and shall cause each Originator to, uponthe Company’s (or its assignees’) written request and at the Contributor’sexpense, (A) assemble all of its documents, instruments and other records(including credit files and computer tapes or disks) that (1) evidence orwill evidence or record Contributed Receivables and (2) are otherwisenecessary or desirable to effect Collections of such Contributed Receivablesincluding (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 ofexchange or promissory notes, other security documents, and (ii) Obligorspecific information, including copy of the Contract, correspondence file anddetails of any security held (collectively, the “Originator Documents”)and (B) deliver such Originator Documents to the Company or its designeeat a place designated by the Company. In recognition of the Contributor’s needto have access to any Originator Documents which may be transferred to theCompany hereunder, whether as a result of its continuing business relationshipwith any Obligor under the Contributed Receivables or as a result of itsresponsibilities as Local Servicer, the Company hereby grants to theContributor a license to access the Originator Documents transferred by theContributor to the Company and to access any such transferred computer softwarein connection with any activity arising in the ordinary course of theContributor’s business or in performance of the Contributor’s duties as LocalServicer; provided that the Contributor shall not disrupt or otherwiseinterfere with the Company’s use of and access to the Originator Documents andits 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 datanecessary for the immediate collection of the Contributed Receivables by theCompany, with or without the participation of the Contributor (excludingsoftware licenses which by their terms are not permitted to be so delivered; providedthat the Contributor shall use reasonable efforts to obtain the consent of therelevant licensor to such delivery but shall not be required, to the extent ithas an ownership interest in any electronic records, computer software orlicenses, to transfer, assign, set-over or otherwise convey such ownershipinterests to the Company) and (B) make such arrangements with respect tothe collection of the Contributed Receivables as may be reasonably required bythe Company.

 

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**8.            **MISCELLANEOUS

 

8.01         Payments. All payments to bemade by a party (“payor”) hereunder shall be made in Dollars on theapplicable due date and in immediately available funds to the recipient’s (“payee”)account set forth in Schedule 3 to the Servicing Agreement or to suchother account as may be specified by such payee from time to time in a noticeto such payor. Wherever any payment to be made under this Agreement shall bestated to be due on a day other than a Business Day, such payment shall be madeon the next succeeding Business Day.

 

8.02         Costs and Expenses. TheContributor agrees to pay, indemnify, and hold the Company harmless from andagainst any and all other liabilities, obligations, losses, damages, penalties,actions, judgments, suits, costs, expenses or disbursements of any kind ornature whatsoever (i) which may at any time be imposed on, incurred by orasserted against the Company in any way relating to or arising out of thisAgreement or the other Transaction Documents or the transactions contemplatedhereby and thereby or in connection herewith or any action taken or omitted bythe Company under or in connection with any of the foregoing (all such otherliabilities, obligations, losses, damages, penalties, actions, judgments, suits,costs, expenses and disbursements being herein called “OriginatorIndemnified Liabilities”) or (ii) which would not have been imposedon, incurred by or asserted against the Company but for its having acquired theContributed Receivables hereunder; provided, however, that suchindemnity shall not be available to the extent that such Originator IndemnifiedLiabilities are finally judicially determined to have resulted from the grossnegligence or willful misconduct of the Company. The agreements of theContributor in this Section 8.02 shall survive the collection of allContributed Receivables, the termination of this Agreement and the payment ofall amounts payable hereunder; provided, further, that in noevent shall the Contributor be required to make any indemnity paymentsresulting from the lack of performance or collectibility of the ContributedReceivables (unless such loss results from a breach of a representation orundertaking by the Contributor with respect to any such Contributed Receivable).

 

8.03         Successors and Assigns. ThisAgreement shall be binding upon and inure to the benefit of the Contributor andthe Company and their respective successors (whether by merger, consolidationor otherwise) and permitted assigns. The Contributor agrees that it will notassign or transfer all or any portion of its rights or obligations hereunderwithout the prior written consent of the Company. The Contributor acknowledgesthat, pursuant to the Pooling Agreement, the Company shall grant theParticipation to the Trustee as well as granting to the Trustee a securityinterest in, among other things, all of its rights hereunder. The Contributorfurther agrees that, in respect of its obligations hereunder, it will act atthe direction of and in accordance with all requests and instructions from theTrustee until all amounts due to the Investor Certificate holders are paid infull.

 

8.04         Intentionally Omitted.

 

8.05         Intentionally Omitted.

 

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

 

8.07         No Waiver; Cumulative Remedies. Nofailure to exercise and no delay in exercising, on the part of the Company, anyright, remedy, power or privilege hereunder, shall operate as a waiver 

 

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thereof, nor shall any single or partial exercise ofany right, remedy, power or privilege hereunder preclude any other or furtherexercise thereof or the exercise of any other right, remedy, power or privilege.The rights, remedies, powers and privileges herein provided are cumulative andnot exhaustive of any rights, remedies, powers and privileges provided by law.

 

8.08         Amendments and Waivers. Neitherthis Agreement nor any terms hereof may be amended, supplemented or modifiedexcept in a writing signed by the Company and the Contributor and thatotherwise complies with any applicable provision in the other TransactionDocuments.

 

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

 

8.10         Notices. All notices, requestsand demands to or upon the respective parties hereto to be effective shall bein writing (including by telecopy), and, unless otherwise expressly providedherein, shall be deemed to have been duly given or made when delivered by hand,or three (3) days after being deposited in the mail, postage prepaid,or, in the case of telecopy notice, when received, addressed as follows in thecase of the Company and the Contributor, or to such other address as may behereafter notified by the respective parties hereto:

 
| 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: 32  2759 5501                   |
|                              |                                      |
| With respect to  the Contributor: | Huntsman  International LLC               |
|                              | 500 Huntsman Way                          |
|                              | Salt Lake City                            |
|                              | Utah 84108, USA                           |
|                              |                                      |
|                              | Attention:  Office of the General Counsel |
|                              | Telecopy: 1  (801) 584-5782               |

 

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| Copy to:                      | Huntsman  (Europe) BVBA                  |
|-------------------------------|------------------------------------------|
|                          | Everslaan 45                             |
|                          | B-3078 Everberg                          |
|                          | Belgium                                  |
|                          |                                     |
|                          | Attention:  Treasury Department          |
|                          | Telecopy: 32  2759 5501                  |
|                          |                                     |
| With respect to  the Trustee: | J.P. Morgan Bank  (Ireland) plc,         |
|                          | JPMorgan House                           |
|                          | International  Financial Services Centre |
|                          | Dublin 1,  Ireland                       |
|                          |                                     |
|                          | Attention: Michael  Drew                 |
|                          | Telecopy: 353 1  612 5777                |

 

8.11         Counterparts. This Agreement maybe executed by one or more of the parties to this Agreement on any number ofseparate counterparts (including by telecopy), and all of said counterpartstaken together shall be deemed to constitute one and the same instrument. A setof the copies of this Agreement signed by all the parties shall be lodged withthe Company.

 

8.12         Submission to Jurisdiction; Serviceof Process.

 

(a)           Each of the parties hereto herebysubmits to the nonexclusive jurisdiction of the United States District Courtfor the Southern District of New York and of any New York State court sittingin the Borough of Manhattan, City of New York for purposes of all legalproceedings arising out of or relating to this Agreement or the transactionscontemplated hereby. Each of the parties hereto hereby irrevocably waives, tothe fullest extent it may effectively do so, any objection which it may now orhereafter have to the laying of the venue of any such proceeding brought insuch a court, any claim that any such proceeding brought in such a court hasbeen brought in an inconvenient forum and any claim based on its immunity fromsuit. Nothing in this Section 8.12(a) shall affect the right of any partyhereto to bring any action or proceeding against another or its property in thecourts of other jurisdictions.

 

(b)           EACH PARTY WAIVES ITS RIGHTS TO ATRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ORRELATED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANYACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY EITHER PARTYAGAINST THE OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS,OR OTHERWISE. EACH PARTY HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTIONSHALL 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 JURYIS WAIVED BY OPERATION OF THIS SECTION 8.12(b) AS TO ANY ACTION,COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGETHE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISIONS HEREOF. THISWAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS ORMODIFICATIONS TO THIS AGREEMENT.

 

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8.13         No Bankruptcy Petition.

 

(a)           The Contributor, by entering intothis Agreement, covenants and agrees, to the extent permissible underapplicable law, that it will not solely in its capacity as a creditor of the Companyinstitute against, or join any other Person in instituting against, the Companyany involuntary bankruptcy, reorganization, arrangement, insolvency orliquidation proceedings, or other involuntary proceedings (including, but notlimited to, petitioning for the declaration of the Company’s assets endésastre) under any Applicable Insolvency Laws; and

 

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

 

8.14         Termination. This Agreement willterminate at such time as (a) the commitment of the Company to accept acontribution of Receivables from the Contributor hereunder shall haveterminated and (b) all Contributed Receivables have been collected, andthe proceeds thereof turned over to the Company and all other amounts owing tothe Company hereunder shall have been paid in full or, if ContributedReceivables have not been collected, such Contributed Receivables have becomeDefaulted Receivables and the Company shall have completed its collection effortsin respect thereto; provided, however, that the indemnities ofany Contributor to the Company set forth in this Agreement shall survive suchtermination and providedfurther that, to the extent any amountsremain due and owing to the Company hereunder, the Company shall remainentitled to receive any Collections on Contributed Receivables which havebecome Defaulted Receivables after it shall have completed its collectionefforts in respect thereof. Notwithstanding anything to the contrary containedherein, if at any time, any payment made by the Contributor is rescinded ormust be restored or returned by the Company as a result of any Insolvency Eventwith respect to the Contributor then the Contributor’s obligations with respectto such payment shall be reinstated as though such payment had never been made.

 

8.15         Responsible Officer Certificates; NoRecourse. Any certificate executed and delivered by a Responsible Officerof the Contributor or the Company pursuant to the terms of the TransactionDocuments shall be executed by such Responsible Officer not in an individualcapacity but solely in his or her capacity as an officer of the Contributor orthe Company, as applicable, and such Responsible Officer will not be subject topersonal liability as to the matters contained in the certificate. A director,officer, manager, employee, or member or Shareholder, as the case may be, assuch, of the Contributor or Company shall not have liability for any obligationof the Contributor or the Company hereunder or under any Transaction Documentor for any claim based on, in respect of, or by reason of, any TransactionDocument, unless such claim results from the gross negligence, fraudulent actsor willful misconduct of such director, officer, employee, manager or member orShareholder, as the case may be.

 

8.16         Confidential Information.

 

(a)           Unless otherwise required byapplicable law, and subject to Subsection 8.16(b) below, each of theparties hereto undertakes to maintain the confidentiality of this Agreement inits communications with third parties and otherwise. None of the parties shalldisclose to any person any information of a confidential nature of or relatingto either the Contributor, the Trustee or Company, which such party may haveobtained as a result of the Transaction (the “Confidential Information”).For the avoidance of doubt, the Company shall restrict disclosure ofConfidential Information to its officers, 

 

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employees, agents and advisers who need to receivesuch information to ensure the proper functioning of the Transaction. TheTrustee shall procure that such officers, employees, agents and advisers shallkeep confidential all of the Confidential Information received; and

 

(b)           The provisions of thisSection 8.15(b) shall not apply:

 

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

 

(ii)           to the disclosure of ConfidentialInformation to the Trustee’s assigns (provided that such information isdisclosed subject to the condition that such party will hold it confidential onthe same basis);

 

(iii)          to the disclosure of any informationwith the written consent of the parties hereto;

 

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

 

(v)           to the disclosure of any informationreasonably required for the completion and filing of any financing statementspursuant to Sections 2.01(c), 3.01(h), 4.01(d), 5.13(a) and 5.13(b).

 

8.17         Effectiveness of this Agreement.This Agreement shall come into effect only upon the occurrence of theSeries 2001-1 Redemption Date, at which time the original ContributionAgreement, dated as of December 21, 2000, between the Contributor and theCompany, will be of no further force and effect except as the evidence ofownership and security interests thereunder and the incurrence of obligationsthereunder. Notwithstanding anything in this Section 8.17 to the contrary,Section 5.18(b) of the Original Agreement shall continue to have force andeffect but only in relation to Relevant Documents (as defined for the purposesof the Original Agreement) executed before 1 December 2003.

 

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IN WITNESS WHEREOF, the parties hereto have causedthis Contribution Agreement to be executed by their respective officersthereunto 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/ J. KIMO ESPLIN |
|       |                               | Name: J. Kimo Esplin |
|       |                               | Title: Chief Financial Officer |

 

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