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Exhibit 10.29
EXECUTION COPY
FIRST AMENDMENT TO AMENDED AND RESTATED POOLING AGREEMENT
This First Amendment to Amended and Restated Pooling Agreement, dated as of October 21, 2002 (this "Amendment"), is among HUNTSMAN RECEIVABLES FINANCE LLC, a limited liability company organized under the laws of the State of Delaware (the "Company"), HUNTSMAN (EUROPE) BVBA, a corporation organized under the laws of Belgium (in its capacity as master servicer, the "Master Servicer") and J.P. MORGAN BANK (IRELAND) PLC, (f/k/a CHASE MANHATTAN BANK (IRELAND) plc), a banking institution organized under the laws of Ireland, not in its individual capacity, but solely as trustee (in such capacity, the "Trustee").
WHEREAS, the parties hereto have previously entered into Amended and Restated Pooling Agreement, dated as of June 26, 2001 (the "Pooling Agreement");
WHEREAS, pursuant to Section 10.01(a) of the Pooling Agreement, the Pooling Agreement may be amended in writing from time to time by the Master Servicer, the Company and the Trustee with the written consent of the Funding Agent and without the consent of any Holder under certain circumstances;
WHEREAS, the parties hereto desire to amend the Pooling Agreement as set forth herein in connection with the addition of originators of receivables to the master trust securitization contemplated by the Pooling Agreement;
NOW, THEREFORE, the Company, the Master Servicer and the Trustee, with the consent of the Funding Agent, hereby agree as follows:
1. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Pooling Agreement.
2. An additional definition "ABR" is added in Annex X to the Pooling Agreement which shall read:
1/16 of 1%) equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus1/2 of 1%. If for any reason, the Funding Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Base CD Rate or the Federal Funds Effective Rate or both for any reason, including the inability or failure of the Funding Agent to obtain sufficient quotations in accordance with the terms of the definitions thereof, the ABR shall be determined without regard to clause (b) or (c), or both, of the immediately preceding sentence, as appropriate, until the circumstances giving rise to such inability no longer exist. Any change in the ABR due to a change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall be effective on the effective date of such change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively. The term "Prime Rate" shall mean the rate of interest per annum publicly announced from time to time by the Funding Agent as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective on the date such change is publicly announced as being effective. The term "Base CD Rate" shall mean the sum of (a) the product of (i) the Three-Month Secondary CD Rate and (ii) Statutory Reserves and (b) the Assessment Rate. The term "Three-Month Secondary CD Rate" shall mean, for any day, the secondary market rate for three-month certificates of deposit reported as being in effect on such day (or, if such day shall not be a Business Day, the next preceding Business Day) by the Board through the public information telephone line of the Federal Reserve Bank of New York (which rate will, under the current practices of the Board, be published in Federal Reserve Statistical Release
H.15(519) during the week following such day), or, if such rate shall not be so reported on such day or such next preceding Business Day, the average of the secondary market quotations for three-month certificates of deposit of major money center banks in New York City received at approximately 10:00 a.m. New York City time, on such day (or, if such day shall not be a Business Day, on the next preceding Business Day) by the Funding Agent from three negotiable certificate of deposit dealers in New York City of recognized standing selected by it."
3. An additional definition "Aggregate Originator Country Overconcentration Amount" is added in Annex X to the Pooling Agreement which shall read:
4. The definition of "Aggregate Receivables Amount" set forth in Annex X to the Pooling Agreement shall be amended by deleting the existing definition in its entirety and replacing it with the following:
5. The definition of "Approved Originator" set forth in Annex X to the Pooling Agreement shall be amended by deleting the existing definition in its entirety and replacing it with the following:
6. An additional definition "Book-Entry Certificates" is added in Annex X to the Pooling Agreement which shall read:
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7. An additional definition "Certificate Book-Entry Holder" is added in Annex X to the Pooling Agreement which shall read:
8. An additional definition "Closing Date" is added in Annex X to the Pooling Agreement which shall read:
9. An additional definition "Collection Account Bank" is added in Annex X to the Pooling Agreement which shall read:
10. The reference to "Section 9-306" contained within the definition of "Collections" set forth in Annex X to the Pooling Agreement shall be replaced with a reference to "Section 9-102(a)(64)".
11. An additional definition "Commission" is added in Annex X to the Pooling Agreement which shall read:
12. An additional definition "Confidential Information" is added in Annex X to the Pooling Agreement which shall read:
13. An additional definition "Contributor" is added in Annex X to the Pooling Agreement which shall read:
14. An additional definition "Contributor Adjustment Payment" is added in Annex X to the Pooling Agreement which shall read:
15. An additional definition "Contributor Dilution Adjustment Payment" is added in Annex X to the Pooling Agreement which shall read:
16. An additional definition "Contributor Indemnification Payment" is added in Annex X to the Pooling Agreement which shall read:
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17. An additional definition "Credit Enhancement" is added in Annex X to the Pooling Agreement which shall read:
18. An additional definition "Credit Enhancer" is added in Annex X to the Pooling Agreement which shall read:
19. An additional definition "Delinquency Ratio" is added in Annex X to the Pooling Agreement which shall read:
20. An additional definition "Disclosure Documents" is added in Annex X to the Pooling Agreement which shall read:
21. An additional definition "Early Program Termination" is added in Annex X to the Pooling Agreement which shall read:
22. An additional definition "ECI Holder" is added in Annex X to the Pooling Agreement which shall read:
23. The definition of "Eligible Receivable" set forth in Annex X to the Pooling Agreement shall be amended as follows:
(1) eligibility criterion (h) is deleted in its entirety and replaced with the following:
"(h) (i) all right, title and interest in such Receivable has been legally and validly, directly or indirectly, sold to the Contributor by the related Originator and contributed by Huntsman International to the Company pursuant to the related Origination Agreement, or (ii) all right, title and interest in such Receivable has been legally and validly, directly or indirectly, transferred, assigned or sold to the Company by the related Originator pursuant to the related Origination Agreement;"
(2) eligibility criterion (j) is deleted in its entirety and replaced with the following:
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(3) eligibility criterion (p) is deleted in its entirety and replaced with the following:
"(p) it is not subject to any withholding taxes of any applicable jurisdiction or political subdivision and is assignable free and clear of any sales or other tax, impost or levy, unless an appropriate reserve, as determined by the Funding Agent after consultation with the Rating Agencies, is made for such tax liability;"
(4) the reference to "Section 9-318(4)" set forth in eligibility criterion (r) shall be replaced with a reference to "Sections 9-406 and 9-407".
(5) the reference to "Section 9-106" set forth in eligibility criterion (w) shall be replaced with a reference to "Section 9-102".
24. An additional definition "Euroclear" is added in Annex X to the Pooling Agreement which shall read:
25. An additional definition "European Receivables Purchase Agreements" is added in Annex X to the Pooling Agreement which shall read:
26. An additional definition "Execution Date" is added in Annex X to the Pooling Agreement which shall read:
27. An additional definition "Exempt Purchaser" is added in Annex X to the Pooling Agreement which shall read:
28. An additional definition "Federal Funds Effective Rate" is added in Annex X to the Pooling Agreement which shall read:
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29. An additional definition "Fiscal Period" is added in Annex X to the Pooling Agreement which shall read:
30. An additional definition "Foreign Clearing Agency" is added in Annex X to the Pooling Agreement which shall read:
31. An additional definition "Foreign Government Obligor" is added in Annex X to the Pooling Agreement which shall read:
32. An additional definition "Forward Rate" is added in Annex X to the Pooling Agreement which shall read:
33. An additional definition "Funding Amount" is added in Annex X to the Pooling Agreement which shall read:
34. An additional definition "FX Counterparty" is added in Annex X to the Pooling Agreement which shall read:
35. An additional definition "FX Hedging Agreement" is added in Annex X to the Pooling Agreement which shall read:
36. An additional definition "Guaranteed Obligations" is added in Annex X to the Pooling Agreement which shall read:
37. An additional definition "Huntsman Group" is added in Annex X to the Pooling Agreement which shall read:
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38. An additional definition "Indemnifying Person" is added in Annex X to the Pooling Agreement which shall read:
39. An additional definition "Initial Contribution" is added in Annex X to the Pooling Agreement which shall read:
40. An additional definition "Initial Contribution Date" is added in Annex X to the Pooling Agreement which shall read:
41. An additional definition "Institutional Accredited Investor" is added in Annex X to the Pooling Agreement which shall read:
42. An additional definition "Junior Claims" is added in Annex X to the Pooling Agreement which shall read:
43. An additional definition "Limited Liability Company Agreement" is added in Annex X to the Pooling Agreement which shall read:
44. An additional definition "Liquidation Servicing Fee" is added in Annex X to the Pooling Agreement which shall read:
45. An additional definition "Margin Stock" is added in Annex X to the Pooling Agreement which shall read:
46. An additional definition "Marine Insurance Policy" is added in Annex X to the Pooling Agreement which shall read:
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47. An additional definition "Master Servicer Indemnification Event" is added in Annex X to the Pooling Agreement which shall read:
48. An additional definition "Master Servicer Indemnified Person" is added in Annex X to the Pooling Agreement which shall read:
49. An additional definition "Master Servicer Site Review" is added in Annex X to the Pooling Agreement which shall read:
50. An additional definition "OECD Country" is added in Annex X to the Pooling Agreement which shall read:
51. An additional definition "One-Month LIBOR" is added in Annex X to the Pooling Agreement which shall read:
52. An additional definition "Optional Repurchase Percentage" is added in Annex X to the Pooling Agreement which shall read:
53. The definition of "Origination Agreements" set forth in Annex X to the Pooling Agreement shall be amended by deleting the existing definition in its entirety and replacing it with the following:
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54. The definition of "Originator" set forth in Annex X to the Pooling Agreement shall be amended by deleting the existing definition in its entirety and replacing it with the following:
55. An additional definition "Originator Documents" is added in Annex X to the Pooling Agreement which shall read:
56. An additional definition "Originator Payment Date" is added in Annex X to the Pooling Agreement which shall read:
57. An additional definition "Originator Purchase Price" is added in Annex X to the Pooling Agreement which shall read:
58. An additional definition "Originator Termination Date" is added in Annex X to the Pooling Agreement which shall read:
59. An additional definition "Originator Termination Event" is added in Annex X to the Pooling Agreement which shall read:
60. An additional definition "Outstanding Amount Advanced" is added in Annex X to the Pooling Agreement which shall read:
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61. An additional definition "Outstanding Investor Certificates" is added in Annex X to the Pooling Agreement which shall read:
62. An additional definition "Paying Agency Agreement" is added in Annex X to the Pooling Agreement which shall read:
63. An additional definition "PBGC" is added in Annex X to the Pooling Agreement which shall read:
64. An additional definition "Placement Agent" is added in Annex X to the Pooling Agreement which shall read:
65. An additional definition "Potential Offset Amount" is added in Annex X to the Pooling Agreement which shall read:
66. An additional definition "Potential Originator Termination Event" is added in Annex X to the Pooling Agreement which shall read:
67. An additional definition "Potential Program Termination Event" is added in Annex X to the Pooling Agreement which shall read:
68. An additional definition "Principal Transfer Agent" is added in Annex X to the Pooling Agreement which shall read:
69. An additional definition "Qualified Institutional Buyer" is added in Annex X to the Pooling Agreement which shall read:
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70. The definition of "Receivables Assets" set forth in Annex X to the Pooling Agreement shall be amended by deleting the existing definition in its entirety and replacing it with the following:
71. An additional definition "Receivables Purchase Agreement" is added in Annex X to the Pooling Agreement which shall read:
72. An additional definition "Relevant Clearing System" is added in Annex X to the Pooling Agreement which shall read:
73. An additional definition "Reportable Event" is added in Annex X to the Pooling Agreement which shall read:
74. An additional definition "Reported Day" is added in Annex X to the Pooling Agreement which shall read:
75. An additional definition "Resignation Notice" is added in Annex X to the Pooling Agreement which shall read:
76. An additional definition "Restricted Payments Test" is added in Annex X to the Pooling Agreement which shall read:
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77. An additional definition "Restricted Period" is added in Annex X to the Pooling Agreement which shall read:
78. An additional definition "Sale Date" is added in Annex X to the Pooling Agreement which shall read:
79. An additional definition "Section 42 Exemption" is added in Annex X to the Pooling Agreement which shall read:
80. An additional definition "Senior Obligations" is added in Annex X to the Pooling Agreement which shall read:
81. An additional definition "Series Amount" is added in Annex X to the Pooling Agreement which shall read:
82. An additional definition "Servicing Fee Percentage" is added in Annex X to the Pooling Agreement which shall read:
83. An additional definition "Servicing Reserve Ratio" is added in Annex X to the Pooling Agreement which shall read:
84. An additional definition "Special Obligor" is added in Annex X to the Pooling Agreement which shall read:
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85. An additional definition "Special Obligor Delinquency Ratio" is added in Annex X to the Pooling Agreement which shall read:
86. An additional definition "Statutory Reserves" is added in Annex X to the Pooling Agreement which shall read:
87. An additional definition "Sterling" is added in Annex X to the Pooling Agreement which shall read:
88. An additional definition "Taxes" is added in Annex X to the Pooling Agreement which shall read:
89. An additional definition "Termination Notice" is added in Annex X to the Pooling Agreement which shall read:
90. An additional definition "Timely Payment Discount" is added in Annex X to the Pooling Agreement which shall read:
91. An additional definition "United States Person" is added in Annex X to the Pooling Agreement which shall read:
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92. An additional definition "U.S. Dollars" is added in Annex X to the Pooling Agreement which shall read:
93. An additional definition "U.S. Dollar Shortfall" is added in Annex X to the Pooling Agreement which shall read:
94. An additional definition "Volume Rebate" is added in Annex X to the Pooling Agreement which shall read:
95. The reference to "Schedule 4" in the definition of "Approved Contract Jurisdiction" set forth in Annex X to the Pooling Agreement is hereby deleted and replaced with a reference to "Schedule 3".
96. Section 2.01(a) of the Pooling Agreement is amended as follows:
(1) An new section 2.01(a)(ii) is added, which shall read "(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."
(2) The existing paragraphs (ii) through (xi) are renumbered accordingly.
(3) The section references in the new paragraph (xii) are renumbered accordingly.
(4) The sentence immediately following the renumbered Section 2.01(a)(xii) is deleted in its entirety and replaced with "Such assets described in the foregoing clauses (i) through (xii) shall constitute the "Participation Assets.""
97. Section 2.01(b) of the Pooling Agreement is amended by deleting the words "Receivables Assets" in the first paragraph and replacing them with the words "Participation Assets."
98. Section 2.09(b)(x) of the Pooling Agreement is amended by adding after the words "Receivables Purchase Agreement" the words: ", shall have otherwise acceded to an existing Receivables Purchase Agreements or shall have entered into a Receivables Purchase Agreement substantially similar to the existing Receivables Purchase Agreement with such modifications as necessary or appropriate to address jurisdiction-specific issues".
99. Section 2.09(b)(xiii) of the Pooling Agreement is amended by adding after the word "account" the words: "or shall have been established in the name of the Trustee (whereby the Trustee may grant to the Company a revocable authorization to operate such accounts), or, if the Trustee shall not have such first priority perfected security interest or ownership interest in such accounts, the Company shall have established, or shall have caused Huntsman International to establish, appropriate reserves, as determined by the Funding Agent after consultation with the Rating Agencies, to cover any failure of timely remittance in full of Collections from such accounts or shall have established, or shall have caused Huntsman International to establish, appropriate reserves, as determined by the Funding Agent after consultation with the Rating Agencies, to cover a failure of timely remittance in full of Collections from the Collection Accounts to the relevant Master Collection Account in accordance with the Transaction Documents, or shall have made
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such other arrangements as appropriate or necessary, as determined by the Funding Agent after consultation with the Rating Agencies, to address jurisdiction-specific issues."
100. Section 3.01(a)(iv) is amended by deleting the word "projected" and replacing it with the word "perfected".
101. Section 3.01(a) of the Pooling Agreement is amended by adding a new subsection (vi) as follows:
102. Section 3.01(a) of the Pooling Agreement is amended by adding a new subsection (vii) as follows:
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103. Section 3.01(b) of the Pooling Agreement is amended adding the following words after the word Collection Accounts in its first sentence:
104. All references in the Pooling Agreement (including, without limitation, Annex X) to Receivables "contributed from Huntsman International to the Company" or Receivables "contributed from the Contributor to the Company" shall be deemed to include Receivables subrogated, sold or otherwise transferred directly from an Originator or other entity to the Company.
105. All provisions of the Pooling Agreement (including, without limitation, Annex X) applicable to Receivables contributed to the Company from Huntsman International shall be deemed to be equally applicable to Receivables subrogated, sold or otherwise transferred directly from an Originator or other entity to the Company.
106. Schedule 3 to the Pooling Agreement is amended by adding Italy and Spain to the list of "Approved Contract Jurisdictions".
107. Schedule 3 to the Pooling Agreement is amended by adding a table labeled "(F) Approved Originator Country Overconcentration Limits," which shall read as follows:
| "United States | | 100 | % |
| United Kingdom | | 100 | % |
| Belgium | | 100 | % |
| Italy | | 100 | % |
| The Netherlands | | 100 | % |
| France | | 15 | % |
| Spain | | 5 | %" |
108. Except as expressly amended by this Amendment, the Pooling Agreement is ratified and confirmed in all respects and the terms, provisions and conditions thereof are and shall remain in full force and effect.
109. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
110. The headings of the paragraphs contained in this Amendment are provided for convenience only. They form no part of this Amendment and shall not affect its construction or interpretation. All references to sections or subsections herein refer to sections or subsections of the Pooling Agreement, as amended hereby.
111. This Amendment may be executed in counterparts by the parties hereto, and each such counterpart shall be considered an original and all such counterparts shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
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This First Amendment to Pooling Agreement shall amend the Pooling Agreement effective as of the date hereof.
| By: | HUNTSMAN RECEIVABLES FINANCE LLC,
as the Company
| | By: | HUNTSMAN (EUROPE) BVBA,
as Master Servicer
|
By: |
/s/ PETER R. HUNTSMAN
Authorized Signatory |
|
By: |
/s/ J. KIMO ESPLIN
Authorized Signatory |
| | Name: Peter R. Huntsman | | | Name: J. Kimo Esplin |
| | Title: President | | | Title: Manager |
By: |
J.P. MORGAN BANK (IRELAND) PLC,
not in its individual capacity but solely as Trustee
|
|
|
|
By: |
/s/ DEAN FLETCHER
Authorized Signatory |
|
|
|
| | Name: Dean Fletcher | | | |
| | Title: Director | | | |
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FIRST AMENDMENT TO AMENDED AND RESTATED POOLING AGREEMENT
