TO THE
EXTENT THAT SUCH SCHEDULE, EXHIBIT OR APPENDIX MAY BE AMENDED, MODIFIED OR
SUPPLEMENTED (OR ANY TERM OR PROVISION OF ANY TRANSACTION DOCUMENT MAY BE
AMENDED THAT WOULD HAVE THE EFFECT OF AMENDING, MODIFYING OR SUPPLEMENTING
INFORMATION CONTAINED IN SUCH SCHEDULE, EXHIBIT OR APPENDIX) IN COMPLIANCE WITH
THE TERMS OF THE TRANSACTION DOCUMENTS.
(H)
ANY REFERENCE HEREIN TO ANY REPRESENTATION, WARRANTY OR COVENANT
"DEEMED" TO HAVE BEEN MADE IS INTENDED TO ENCOMPASS ONLY REPRESENTATIONS,
WARRANTIES OR COVENANTS THAT ARE EXPRESSLY STATED TO BE REPEATED ON OR AS OF
DATES FOLLOWING THE EXECUTION AND DELIVERY OF THIS AGREEMENT, AND NO SUCH
REFERENCE SHALL BE INTERPRETED AS A REFERENCE TO ANY IMPLICIT, INFERRED, TACIT
OR OTHERWISE UNEXPRESSED REPRESENTATION, WARRANTY OR COVENANT.
(I)
THE WORDS "INCLUDE", "INCLUDES" OR "INCLUDING" SHALL BE
INTERPRETED AS FOLLOWED, IN EACH CASE, BY THE PHRASE "WITHOUT LIMITATION".
(J)
REFERENCES TO THE POOLING AGREEMENT IN ANY OTHER DOCUMENT OR
AGREEMENT SHALL BE DEEMED TO BE REFERENCES TO THIS AGREEMENT AS AMENDED AND
RESTATED AS OF THE DATE HEREOF AND ALL AMENDMENTS AND SUPPLEMENTS HERETO AND ALL
ASSIGNMENTS HEREOF.
ARTICLE II
PARTICIPATION IN RECEIVABLES,
REPRESENTATIONS WARRANTIES AND COVENANTS
SECTION 2.01
PARTICIPATION.
(A)
GRANT OF PARTICIPATION. BY EXECUTION AND DELIVERY OF THIS
AGREEMENT THE COMPANY, AS BENEFICIAL OWNER OF THE RECEIVABLES AND THE
COLLECTIONS, GRANTS TO THE TRUST A PARTICIPATION (THE "PARTICIPATION") IN AND TO
ALL PROCEEDS OF, OR PAYMENTS IN RESPECT OF, ANY AND ALL OF THE FOLLOWING
("PARTICIPATION AMOUNTS"):
3
(I)
THE RECEIVABLES CONTRIBUTED TO THE COMPANY BY THE CONTRIBUTOR
FROM TIME TO TIME PRIOR TO BUT NOT INCLUDING THE TRUST TERMINATION DATE;
(II)
THE RECEIVABLES SUBROGATED, SOLD OR OTHERWISE TRANSFERRED TO THE
COMPANY BY TIOXIDE EUROPE SAS, HUNTSMAN SURFACE SCIENCES (FRANCE) S.A.S. AND ANY
OTHER APPROVED ORIGINATOR FROM TIME TO TIME PRIOR TO BUT NOT INCLUDING THE TRUST
TERMINATION DATE;
(III)
THE RELATED PROPERTY;
(IV)
ALL COLLECTIONS;
(V)
ANY FX HEDGING AGREEMENTS;
(VI)
ALL RIGHTS (INCLUDING RESCISSION, REPLEVIN OR RECLAMATION)
RELATING TO ANY RECEIVABLE OR ARISING THEREFROM;
(VII)
EACH OF THE ORIGINATION AGREEMENTS, THE COLLECTION ACCOUNT
AGREEMENTS AND THE SERVICING AGREEMENT, INCLUDING, IN RESPECT OF EACH AGREEMENT,
(A) ALL RIGHTS OF THE COMPANY TO RECEIVE MONIES DUE AND TO BECOME DUE UNDER OR
PURSUANT TO SUCH AGREEMENT, WHETHER PAYABLE AS FEES, EXPENSES, COSTS OR
OTHERWISE, (B) ALL RIGHTS OF THE COMPANY TO RECEIVE PROCEEDS OF ANY INSURANCE,
INDEMNITY, WARRANTY OR GUARANTY WITH RESPECT TO SUCH AGREEMENT, (C) CLAIMS OF
THE COMPANY FOR DAMAGES ARISING OUT OF OR FOR BREACH OF OR DEFAULT UNDER SUCH
AGREEMENT, (D) THE RIGHT OF THE COMPANY TO AMEND, WAIVE OR TERMINATE SUCH
AGREEMENT, TO PERFORM THEREUNDER AND TO COMPEL PERFORMANCE AND OTHERWISE
EXERCISE ALL REMEDIES THEREUNDER AND (E) ALL OTHER RIGHTS, REMEDIES, POWERS,
PRIVILEGES AND CLAIMS OF THE COMPANY UNDER OR IN CONNECTION WITH SUCH AGREEMENT
(WHETHER ARISING PURSUANT TO SUCH AGREEMENT OR OTHERWISE AVAILABLE TO THE
COMPANY AT LAW OR IN EQUITY), INCLUDING THE RIGHTS OF THE COMPANY TO ENFORCE
SUCH AGREEMENT AND TO GIVE OR WITHHOLD ANY AND ALL