EXHIBIT 10.23
EXECUTION COPY
December 20, 2000
UK RECEIVABLES PURCHASE AGREEMENT
between
HUNTSMAN INTERNATIONAL LLC
as Purchaser
TIOXIDE EUROPE LIMITED and
HUNTSMAN PETROCHEMICALS (UK) LIMITED
as Originators
HUNTSMAN (EUROPE) B.V.B.A.
as Master Servicer
TABLE OF CONTENTS PAGE NO.
1. Definitions..................................................................................... 4
2. Offer Of Receivables............................................................................ 6
3. Representations And Warranties.................................................................. 12
4. Affirmative Covenants........................................................................... 15
5. Negative Covenants.............................................................................. 17
6. Termination Events.............................................................................. 20
7. Miscellaneous................................................................................... 23
Schedule 1 To Receivables Purchase Agreement Form Of Offer Letter........................ Error! Bookmark not Defined.
Schedule 2 To Receivables Purchase Agreement Form Of Originator Daily Report ............ Error! Bookmark not Defined.
Schedule 3 Form Of Security Power Of Attorney............................................ Error! Bookmark not Defined.
Schedule 4 To Receivables Purchase Agreement Form Of Solvency Certificate................ Error! Bookmark not Defined.
Schedule 5 To Receivables Purchase Agreement Location Of Books And Records............... Error! Bookmark not Defined.
Schedule 6 To Receivables Purchase Agreement Legal And Other Business Names.............. Error! Bookmark not Defined.
Schedule 7 Form Of Accession And Undertaking............................................. Error! Bookmark not Defined.
Schedule 8 Accession Legal Opinion....................................................... Error! Bookmark not Defined.
Schedule 9 Closing Documents List........................................................ Error! Bookmark not Defined.
Schedule 10 Form Of Offer Notification................................................... Error! Bookmark not Defined.
THIS AGREEMENT is made on December 20, 2000
BETWEEN
(1) HUNTSMAN INTERNATIONAL LLC, a limited liability company organised under the
laws of the State of Delaware, as purchaser (the "Purchaser");
(2) TIOXIDE EUROPE LIMITED ("Tioxide Europe"), a company incorporated in
England and Wales;
(3) HUNTSMAN PETROCHEMICALS (UK) LIMITED, a company incorporated in England and
Wales ("Petrochemicals UK" and together with Tioxide Europe, the
"Originators") and
(4) HUNTSMAN (EUROPE) B.V.B.A., a corporation organised under the laws of
Belgium, (in its capacity as "Master Servicer").
WHEREAS
(A) Each Originator has at present and expects to have in the future
Receivables owed to it which arise in the course of its business.
(B) The Originators and the Purchaser have agreed, upon the terms and subject
to the conditions of this Agreement, that each Originator may from time to
time deliver an Offer Letter to the Purchaser, in relation to an Offer by
such Originator, offering to assign to the Purchaser Receivables arising
from time to time to such Originator, and in the event the Purchaser
decides to accept such an Offer it will do so in the manner provided
herein.
(C) Huntsman (Europe) B.V.B.A., as the Master Servicer (the "Master Servicer"),
the Purchaser, the Company and The Chase Manhattan Bank (Ireland) plc, not
in its individual capacity but solely as trustee, (the "Trustee"), have
entered into a Pooling Agreement dated as of the date hereof (such
agreement, as it may be amended, modified or otherwise supplemented from
time to time hereafter, being the "Pooling Agreement") in order to create a
master trust into which the Company desires to grant a participation and a
security interest in relation to all of its right, title and interest in,
to and under the Receivables and certain other assets now or hereafter
owned by the Company, in consideration for which the Trustee shall, subject
to the terms and conditions of the Pooling Agreement and any related
Supplement make certain payments to the Company. The Company may from time
to time make distributions to the Purchaser. The Purchaser may use funds so
received by it to enable it to accept Offers in the manner provided herein.
(D) The Master Servicer, the Company, the Purchaser, the Originators, the
Liquidation Servicer and the Trustee have entered into a Servicing
Agreement dated as of the date hereof (such agreement, as it may be
amended, modified or otherwise supplemented from time to time hereafter,
being the "Servicing Agreement") pursuant to which the
Master Servicer will agree to service and administer the Receivables on
behalf of the Company.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
1.1 Defined Terms
Capitalised terms used herein shall, unless otherwise defined or referenced
herein, have the meanings assigned to such terms in Annex-X attached to the
Pooling Agreement which Annex-X is incorporated by reference herein. The
following definitions shall have the following meanings:
"Closing Documents List" shall mean the document entitled "Signing and
Closing List of Documents" specifying certain documents, notifications and
other matters required as a condition precedent to this Agreement as set
out in the Ninth Schedule to this Agreement.
"Excluded Receivables" shall include (without prejudice to the definition
in Annex -X) any Receivable originated by any person other than a UK
Originator.
"Notice of Assignment" means a notice given to the related Obligor or
Obligors (or guarantor or guarantors) to the effect that one or more
Receivables (and if applicable the related benefit of any related guarantee
or guarantees) have been assigned to the Purchaser;
"Notification" shall mean a notification in the form of Tenth Schedule
delivered by the Master Servicer to the Purchaser that it has received and
printed off in full as agent for the Purchaser an Offer and setting out the
Purchase Price in relation to such Offer together with details of the
relevant account into which such Purchase Price should be paid should the
Purchaser decide to accept such an Offer.
"Offer" shall mean any offer made by any Originator to the Purchaser to
sell Receivables as set out in the Offer Letter and attached UK Originator
Daily Report.
"Offer Letter" shall mean any letter in relation to an Offer delivered by
any Originator to the Master Service as agent for the Purchaser in
accordance with the provisions of Clause 2.1 of this Agreement.
"UK Originator Daily Report" shall mean the report (which shall in each
case be appended to the related Offer Letter) prepared by the UK
Originators in accordance with the terms of this Agreement substantially in
the form set out in the Second Schedule to this Agreement, and which shall
in no event be signed by any party.
"Originator Termination Notice" means a notice served by the Purchaser
pursuant to clause 6.5.
"Outstanding Face Amount" shall mean in relation to a Receivable on any
date the amount in an Approved Currency which is the outstanding balance
due in respect thereof at the opening of business in London on such date
(including VAT).
"Purchase Date" shall mean any date on which an Offer is accepted by
payment pursuant to the arrangements contemplated by this Agreement.
"Purchase Price" shall mean, at any Purchase Date, an amount calculated in
accordance with Clause 2.4 of this Agreement.
"Purchased Receivables" shall mean all Receivables originated by an
Originator which have been the subject of an Offer accepted by the
Purchaser other than any such Receivables which have been repurchased
pursuant to this Agreement or which have been paid in full or repaid in
full by the Obligor.
"Security Power of Attorney" shall mean the power of attorney granted by
the Originator in favour of the Purchase substantially in the form set out
in the Third Schedule to this Agreement
"Stamp Duty" shall be construed as a reference to any stamp, registration
or other transaction or documentary tax (including, without limitation, any
penalty or interest payable in connection with any failure to pay or any
delay in paying any of the same).
1.2 Other Definitional Provisions
(a) The words "hereof", "herein", "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and article,
section, subsection, schedule and exhibit references are to this
Agreement unless otherwise specified.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto, accounting terms relating to the
Originators and the Purchaser, unless otherwise defined or
incorporated by reference herein, shall have the respective meanings
given to them under GAAP.
(c) The meanings given to terms defined or incorporated by reference
herein shall be equally applicable to both the singular and plural
forms of such terms.
(d) Any reference herein to a Schedule or Exhibit to this Agreement shall
be deemed to be a reference to such Schedule or Exhibit as it may be
amended, modified or supplemented from time to time to the extent that
such Schedule or Exhibit may be amended, modified or supplemented (or
any term or provision of any Transaction Document may be amended that
would have the effect of amending, modifying or supplementing
information contained in such Schedule or Exhibit) in compliance with
the terms of the Transaction Documents.
(e) Any reference in this Agreement to any representation, warranty or
covenant "deemed" to have been made is intended to encompass only
representations, warranties or covenants that are expressly stated to
be repeated on or as of dates following the execution and delivery of
this Agreement, and no such reference shall be interpreted as a
reference to any implicit, inferred, tacit or otherwise unexpressed
representation, warranty or covenant.
(f) The words "include", "includes" or "including" shall be interpreted as
if followed, in each case, by the phrase "without limitation".
(g) Save where the contrary is indicated, any reference in this Agreement
to costs, charges, expenses and remuneration shall be deemed to
include references to any value added tax or similar tax charged or
chargeable in respect thereof, and section 89 of the Value Added Tax
Act 1994 is hereby excluded for the purposes of this Agreement.
2. OFFER OF RECEIVABLES
2.1 Offer of Receivables
(a) Each Originator may make an Offer for the sale of Receivables (other
than Excluded Receivables) to the Purchaser on any Business Day
falling on or after the date on which the Purchaser has confirmed that
it has received in form and substance satisfactory to it each of the
documents specified in the Closing Documents List by delivering to the
Master Servicer as agent authorised by the Purchaser to receive such
an Offer on its behalf, by letter, fax or electronic mail an Offer
Letter substantially in the form set out in the First Schedule to this
Agreement.
(b) Each Offer Letter delivered by an Originator pursuant to Clause 2.1(a)
shall:
(i) specify the total of the Outstanding Face Amounts and the
Outstanding Face Amounts in each Approved Currency of the
Receivables offered pursuant thereto and have the applicable UK
Originator Daily Report substantially in the form set out in
the Second Schedule to this Agreement and a list of such
Receivables appended to it;
(ii) specify any amount of set-off exercised with regard to such
Receivables;
(iii) be delivered no later than 12.00 pm (London time) on any
Business Day and, if it is delivered after this time, it shall
be deemed to be delivered on the next Business Day; and
(iv) constitute an offer by such Originator to sell (by way of an
equitable assignment) to the Purchaser absolutely with full
title guarantee (other than to the extent such full title
guarantee would be inconsistent with the representations made
by the Originator when making an Offer) all of the Originator's
beneficial right, title and interest in and to the Receivables
(and the related benefit of any guarantees referable thereto)
to which such Offer relates at the related Purchase Price
calculated in accordance with Clause 2.4 and on the terms and
conditions of this Agreement.
(c) Each Receivable comprised in an Offer shall for the purposes of
calculating the related Purchase Price in accordance with Clause 2.4
be deemed to be an Eligible Receivable, unless otherwise specified in
such Offer Letter.
2.2 Acceptance of Offers
(a) Immediately upon receipt of the Offer Letter and UK Originator Daily
Report, the Master Servicer shall print off such Offer Letter and UK
Originator Daily Report in full. Immediately upon completion of such
printing out the Master Servicer shall send a Notification to the
Purchaser. Only after receiving such Notification from the Master
Servicer and only after the Purchaser has printed out such
Notification in full may the Purchaser accept the Offer. Such
acceptance shall be made (if at all) no earlier than 3.00 pm London
time on the day on which such Notification is printed off and no later
than five Business Days following that upon which such Notification is
received. Notwithstanding any of the other provisions of this
Agreement and the Transaction Documents, the Purchaser shall not be
obliged to accept any Offers.
(b) Each Offer may be accepted by the Purchaser only with respect to the
Receivables specified in the relevant Offer Letter and any purported
form of acceptance of an Offer otherwise than in the manner specified
in this Clause 2 shall be null and void and of no effect (and for the
avoidance of doubt nothing in this Agreement or in any Offer Letter or
in any other document shall of itself operate so as to convey or
transfer to any person any beneficial interest in any Receivables).
(c) Each Offer shall, immediately upon sending, be irrevocable and binding
on the relevant Originator until (if not accepted before such time)
close of business (New York time) five (5) Business Days following the
date when such Offer is sent (or such longer period of time for
acceptance as may be agreed upon by the relevant Originator and the
Master Servicer on behalf of the Purchaser) when such Offer shall
lapse.
(d) Except as provided below, an Offer may only be accepted by payment of
the Purchase Price in the relevant Approved Currency in respect of the
relevant Receivables denominated in such Approved Currency being made
by or on behalf of the Purchaser to the relevant Originator or on its
behalf. The Purchase Price of Receivables in an Approved Currency
shall be determined in accordance with Clause 2.4 by reference to the
Outstanding Face Amounts of all the Receivables denominated in such
Approved Currency which are the subject of such Offer.
(e) The Purchaser shall ensure that each payment made by it or on its
behalf in order to accept an Offer is made by payment directly into
the relevant account specified by the Originator in the Offer Letter
and notified to the Purchaser by the Master Servicer in the applicable
Notification.
(f) Save as otherwise provided herein, the Purchaser shall make funds
available in relation to each Offer which it decides to accept by
payment of the related Purchase Price (determined in accordance with
the provisions of Clause 2.4). The Purchaser (or any other person on
its behalf) shall only give instructions or directions for the making
of any payment as mentioned in Clause 2.2(d) after the Offer to which
such payment relates has been printed off in full by the Master
Servicer and the Purchaser has received from the Master Servicer and
printed off in full the Notification in accordance with Clause 2.4(b).
Such instructions or direction shall be copied to the Master Servicer
provided that, for the avoidance of doubt, the copying of such
instructions or directions to the Master Servicer shall not be a
condition precedent to the formation of any agreement for the sale of
any assets which are the subject of any Offer.
2.3 Assignment of Receivables and Perfection
(a) Upon acceptance of any Offer in accordance with Clauses 2.2(a) to
2.2(f) inclusive, the Originator's beneficial rights, title and
interest in and to (i) the Receivables to which such Offer relates,
(ii) the Related Property and (iii) all Collections (and the related
benefit of any guarantees referable to (i), (ii) and (iii)) shall
thereupon pass to the Purchaser. Such property shall be referred to
collectively herein as the "Receivable Assets".
(b) Subject to Clause 2.3(d), the Originator and the Purchaser will take
all such steps and comply with all such formalities as are specified
in Clause 6.3(c) as may be reasonably required to perfect or more
fully to evidence or secure the title of the Purchaser to the
Receivables assigned (or purported to be assigned) pursuant to Clause
2.3(a), provided that the right to require the steps and formalities
specified in Clause 6.3(b) to be taken shall only exist on and after
the Originator Termination Date.
(c) Subject to Clause 2.3(d), the Originator and the Purchaser in order to
secure the Company's interest in the Receivables and the performance
of its obligations in respect thereof pursuant to this Agreement, the
Pooling Agreement and any related Supplement and any accepted Offer
hereby agree to enter into the Security Power of Attorney referred to
in the Closing Documents List in a form appended to the Third Schedule
of this Agreement.
(d) Notwithstanding the provisions of Clause 6.3(b), all parties hereto
(including the Purchaser as the donee of the Security Power of
Attorney) hereby agree that none of the powers conferred pursuant to
such Security Power of Attorney may at any time be exercised unless at
such time the Originator Termination Date has been declared.
2.4 Purchase Price
(a) The Purchase Price of the Eligible Receivables which are the subject
of an Offer shall be equal to the product of (a) the aggregate
Outstanding Face Amounts of Eligible Receivables as set forth in the
applicable UK Originator Daily Report delivered in accordance with
Clause 2.1 of this Agreement and (b) one hundred per cent (100%) minus
the Discounted Percentage.
(b) The Master Servicer shall, immediately on receipt of an Offer pursuant
to Clauses 2.1(b) print out in full the Offer Letter and UK Originator
Daily Report and immediately upon completion of such printing out
deliver a Notification to the Purchaser:
(c) Each calculation made by the Master Servicer pursuant to this Clause
2.4 shall, in the absence of manifest error, be conclusive. For the
avoidance of doubt, the giving of the Notification as referred to in
Clause 2.4(b) shall not be required in order to effect acceptance of
an Offer.
2.5 Trust
(a) If for any reason any Receivable which is the subject of an accepted
Offer cannot be duly assigned to the Purchaser as contemplated hereby
then with effect from the date of the purported assignment thereof the
Originator shall hold the same and all Collections related thereto on
trust absolutely for the Purchaser.
(b) The provisions of (a) above shall be without prejudice to any
obligations or representations of the Originator hereunder in respect
of any such Receivables.
2.6 No Repurchase
Subject to Clause 2.8, no Originator shall have any right or obligation
under this Agreement, by implication or otherwise, to repurchase from the
Purchaser any Receivables or other Receivable Assets related to such
Receivables or to rescind or otherwise retroactively effect any purchase of
any such Receivables or other Receivable Assets related to such Receivables
after the Purchase Date relating thereto, provided that the foregoing shall
not be interpreted to limit the right of the Company to receive an
Originator Dilution Adjustment Payment, an Originator Adjustment Payment or
an Originator Indemnification Payment.
2.7 Rebates, Adjustments, Returns, Reductions and Modifications
From time to time an Originator may make a Dilution Adjustment to a
Receivable in accordance with this Clause 2.7 and Clause 5.2, provided that
if such Originator cancels an invoice related to such Receivable, either
(i) such invoice must be replaced, or be caused to be replaced, by the
Originator with an invoice relating to the same transaction of equal or
greater Principal Amount on the same Business Day that such cancellation
was made, (ii) such invoice must be replaced, or be caused to be replaced,
by the relevant Originator with an invoice relating to the same transaction
of a lesser Principal Amount on the same Business Day that such
cancellation was made and the Originator must make an Originator Dilution
Adjustment Payment, to the Purchaser, in an amount equal to the difference
between such cancelled and replacement invoices or (iii) the Originator
must make an Originator Dilution Adjustment Payment, to the Purchaser in an
amount equal to the full value of such cancelled invoice pursuant to this
Clause 2.7. Each Originator agrees to pay to the Purchaser, on the Purchase
Date immediately succeeding the date any Dilution Adjustment is granted or
made pursuant hereto by such Originator, the amount of any such Dilution
Adjustment (an "Originator Dilution Adjustment Payment"). The amount of any
Dilution Adjustment shall be set forth on the first Daily Report prepared
after the date on which such Dilution Adjustment was granted or made.
2.8 Payments in Respect of Ineligible Receivables and Originator
Indemnification Payments
(a) In the event of a breach of any of the representations and warranties
contained in Clauses 3.3(a), 3.3(b), 3.3(c), 3.3(d) or 3.3(f) in
respect of any Receivable sold hereunder or if the Purchaser's
interest in any Receivable is not a full beneficial ownership, the
relevant Originator shall, within 30 days after receipt of written
notice of such breach or defect from the Purchaser, remedy the matter
giving rise to such breach of representation or warranty if such
matter is capable of being remedied. If such matter is not capable of
being remedied or is not so remedied within said period of 30 days,
such Originator upon request of the Purchaser shall repurchase the
relevant Receivable from the Purchaser at a repurchase price (without
duplication of any Originator Dilution Adjustment Payments made
pursuant to Clause 2.7 hereof), equal to the original Principal Amount
of such Receivable less Collections received by the Purchaser in
respect of such Receivable (the "Originator Adjustment Payment"). Upon
the payment of an Originator Adjustment Payment hereunder, the
Purchaser shall automatically agree to pay to the relevant Originator
all Collections received subsequent to such repurchase with respect to
such repurchased Receivable. The parties agree that if there is a
breach of any of the representations and warranties of the Originator
contained in Clause 3.3(a), 3.3(b) or 3.3(c) in respect of or
concerning any Receivable, the Originator's obligation to pay the
Originator Adjustment Payment under this Clause 2.8 is a reasonable
pre-estimate of loss and not a penalty (and neither the Purchaser nor
any other person or entity having an interest in this Agreement
through the Purchaser shall be entitled to any other remedies as a
consequence of any such breach).
(b) Special Indemnification In addition to its obligations under Clause
7.2, each Originator agrees to pay, indemnify and hold harmless
(without duplication of any Originator Dilution Adjustment Payments
made pursuant to Clause 2.7 hereof) the Purchaser from and against any
loss, liability, expense, damage or injury which may at any time be
imposed on, incurred by or
asserted against the Purchaser in any way relating to or arising out
of (i) any Receivable attributable to such Originator becoming subject
to any defence, dispute, offset or counterclaim of any kind (other
than as expressly permitted by this Agreement or the Pooling Agreement
or any Supplement) or (ii) such Originator breaching any covenant
contained herein with respect to any Receivable (each of the foregoing
events or circumstances being an "Originator Indemnification Event"),
and such Receivable (or a portion thereof) ceasing to be an Eligible
Receivable on the date on which such Originator Indemnification Event
occurs. The amount of such indemnification shall be equal to the
original Principal Amount of such Receivable less Collections received
by the Purchaser in respect of such Receivable (the "Originator
Indemnification Payment"). Such payment shall be made on or prior to
the tenth Business Day after the day the Purchaser requests such
payment or the Originator obtains knowledge thereof unless such
Originator Indemnification Event shall have been cured on or before
such tenth Business Day, provided, however, that in the event that (x)
an Originator Termination Event with respect to an Originator has
occurred and is continuing or (y) the Purchaser shall be required to
make a payment with respect to such Receivable pursuant to Clause 2.7
of the Contribution Agreement and the Purchaser has insufficient funds
to make such a payment, the Originator shall make such payment
immediately. The Purchaser shall have no further remedy against the
Originator in respect of such an Originator Indemnification Event
unless the Originator fails to make an Originator Indemnification
Payment on or prior to such tenth Business Day or on such earlier day
in accordance with the proviso set forth in this Clause 2.8(b). Upon
the making of an Originator Indemnification Payment, the Purchaser
shall automatically agree to pay to the Originator all Collections
received subsequent to such payment with respect to the Receivable in
respect of which an Originator Indemnification Payment is made.
2.9 Certain Charges
The Originators and the Purchaser hereby agree that late charge revenue,
reversals of discounts, other fees and charges and other similar items,
whenever created, accrued in respect of Receivables shall be the property
of the Purchaser notwithstanding the occurrence of an Early Termination and
all Collections with respect thereto shall continue to be allocated and
treated as Collections in respect of the Receivables transferred, conveyed,
assigned and sold to the Purchaser pursuant to Clause 2 hereof.
2.10 Certain Allocations
Each Originator, as Local Servicer, hereby agrees that if it can attribute
a Collection to a specific Obligor and a specific Receivable, then such
Collection shall be applied to pay such Receivable of such Obligor,
provided, however, that if it cannot attribute a Collection to a specific
Receivable, then such Collection shall be applied to pay the Receivables of
such Obligor in the order of maturity of such Receivables, beginning
with the Receivable that has been outstanding the shortest and ending with
the Receivable that has been outstanding the longest.
3. REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Originators
Each Originator represents and warrants to the Purchaser that each of the
following statements is true at the time of each offer as of the Effective
Date that:
(a) Organisation; Powers It (i) is a limited liability company
incorporated in England and Wales, (ii) has all requisite power and
authority to own its property and assets and to carry on its business
as now conducted and as proposed to be conducted, (iii) is qualified
to do business in, and is in good standing in, every jurisdiction
where the nature of its business so requires, except where the failure
so to qualify could not reasonably be expected to result in a Material
Adverse Effect with respect to it and (iv) has the corporate power and
authority to execute, deliver and perform its obligations under this
Agreement and each of the other Transaction Documents to which it is a
party and each other agreement or instrument contemplated hereby or
thereby to which it is or will be a party.
(b) Authorisation The execution, delivery and performance by it of each
of the Transaction Documents to which it is a party and the
performance of the Transactions (i) have been duly authorised by all
requisite company and, if applicable and required, shareholder action
and (ii) will not (A) violate (1) any Requirement of Law applicable to
it or (2) any provision of any Transaction Document or other material
Contractual Obligation to which it is a party or by which it or any of
its property is or may be bound, (B) be in conflict with, result in a
breach of or constitute (alone or with notice or lapse of time or
both) a default under, or give rise to any right to accelerate or to
require the prepayment, repurchase or redemption of any obligation
under any Transaction Document or any other material Contractual
Obligation to which it is a party or by which it or any of its
property is or may be bound except where any such conflict, violation,
breach or default referred to in sub-clause (A) or (B), individually
or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect with respect to it or (C) result in the
creation or imposition of any Lien upon the Receivables (other than
Permitted Liens and any Lien created under the Transaction Documents
or contemplated or permitted thereby).
(c) Enforceability This Agreement and each of the other Transaction
Documents to which it is a party have been duly executed and delivered
by it and constitutes its legal, valid and binding obligation
enforceable against it in accordance with its respective terms,
subject (a) to applicable bankruptcy, insolvency, reorganisation,
moratorium and other similar laws affecting the
enforcement of creditors' rights generally, from time to time in
effect and (b) to general principles of equity.
(d) Litigation; Compliance with Laws
(i) There are no actions, suits or proceedings at law or in equity or
by or before any Governmental Authority now pending or, to its
knowledge, threatened against it in respect of which there exists
a reasonable possibility of an outcome that would result in a
Material Adverse Effect with respect to it.
(ii) Neither it nor any Originator is in default with respect to any
judgment, writ, injunction, decree or order of any Governmental
Authority, where such violation or default could reasonably be
expected to result in a Material Adverse Effect with respect to
it.
(e) Agreements
(i) It is not a party to any agreement or instrument or subject to
any corporate restriction that has resulted or could reasonably
be expected to result in a Material Adverse Effect with respect
to it.
(ii) It is not in default in any manner under any provision of any
Contractual Obligation to which it is a party or by which it or
any of its properties or assets are bound, where such default
could reasonably be expected to result in a Material Adverse
Effect with respect to it.
(f) Tax Returns It has filed or caused to be filed all material tax
returns and has paid or caused to be paid or made adequate provision
for all taxes due and payable by it and all assessments received by it
except to the extent that non-payment (i) is being contested in good
faith or (ii) could not reasonably be expected to result in a Material
Adverse Effect with respect to it.
(g) Solvency No Insolvency Event with respect to it has occurred and the
sale, assignment, conveyance and transfer of the Receivables by it to
the Purchaser has not been made in contemplation of the occurrence
thereof.
(h) No Originator Termination Event As of the Effective Date, no
Potential Originator Termination Event or Originator Termination Event
with respect to it has occurred and is continuing.
(i) Any Claim to rank pari passu It shall ensure that at all times the
claims of the Purchaser against it under this Agreement rank at least
pari passu with the claims of all its other unsecured creditors save
those whose claims are preferred by any bankruptcy, insolvency or
other similar laws of general application;
The representations and warranties as of the date made set forth in this
Clause 3.1 shall survive the transfer, assignment, conveyance and sale of
the Receivables and the other
Receivable Assets to the Purchaser. Upon discovery by a Responsible Officer
of the Purchaser or the Master Servicer or by a Responsible Officer of the
relevant Originator of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written
notice to the other parties.
3.2 Representations and Warranties of the Originators Relating to the
Receivables
Each Originator hereby represents and warrants to the Purchaser on each
Purchase Date with respect to the Receivables originated by it, being sold,
transferred, assigned and conveyed to the Purchaser as of such date:
(a) Receivables Description The UK Originator Daily Report delivered or
transmitted pursuant to Clause 2.1(b) sets forth in all material
respects an accurate and complete listing of all Receivables related
thereto, to be offered for sale, transfer, assignment and conveyance
to the Purchaser on the date of such Offer and any purchase made upon
acceptance thereof and the information contained therein in accordance
with the Second Schedule with respect to each such Receivable is true
and correct as of such date.
(b) No Liens Each Receivable existing on the Effective Date or, in the
case of Receivables sold, transferred, assigned and conveyed to the
Purchaser after the Effective Date, on the date that each such
Receivable shall have been sold, transferred, assigned and conveyed to
the Purchaser, has been sold, transferred, assigned and conveyed to
the Purchaser free and clear of any Liens, except for Permitted Liens
and Trustee Liens.
(c) Eligible Receivable On the Effective Date, each Receivable that is
represented to be an Eligible Receivable on such date in the UK
Originator Daily Reports or Daily Reports is an Eligible Receivable on
the Effective Date and, in the case of Receivables sold, transferred,
assigned and conveyed to the Purchaser after the Effective Date, each
such Receivable that is represented to be an Eligible Receivable sold,
transferred, assigned and conveyed to the Purchaser on such Purchase
Date is an Eligible Receivable on such Purchase Date.
(d) Governing Law The governing law of the Receivables the subject of
each offer is English Law.
(e) Assignment The assignment of each Receivable the subject of such
offer as herein contemplated will not violate any law or any agreement
by which the Originator may be bound.
(f) Performance of Obligations In all material respects it has performed
and is in compliance with the terms of the contract relating to each
Receivable the subject of an offer.
The representations and warranties as of the date made set forth in this Clause
3.2 shall survive the sale, transfer, assignment and conveyance of the
Receivables and other Receivable
Assets to the Purchaser. Upon discovery by a Responsible Officer of the
Purchaser or the Master Servicer or a Responsible Officer of the relevant
Originator of a breach of any of the representations and warranties (or of any
Receivable encompassed by the representation and warranty in subsection 3.2(c)
not being an Eligible Receivable as of the relevant Purchase Date), the party
discovering such breach shall give prompt written notice to the other parties.
4. AFFIRMATIVE COVENANTS
Each Originator hereby agrees that, so long as there are any amounts outstanding
with respect to Receivables or until an Early Termination, whichever is later,
it shall:
4.1 Financial Statements, Reports, etc
(a) Furnish to the Purchaser, within 150 days after the end of each fiscal
year, its balance sheet and related statements of income,
shareholders' equity and cash flows showing its financial condition as
of the close of such fiscal year and the results of its operations
during such year, for Tioxide Europe, unaudited and for Petrochemicals
UK as audited by its Independent Public Accountants and accompanied by
an opinion of such accountants (which shall not be qualified in any
material respect) to the effect that such financial statements fairly
present in all material respects the financial condition and results
of operations of Petrochemical UK. Such accounts to be prepared in
accordance with accounting principles generally accepted in the United
Kingdom and in accordance with GAAP and consistently applied giving a
true and fair view of the financial condition of the Company;
(b) Furnish to the Purchaser, together with the financial statements
required pursuant to sub-clauses (i) and (ii) above, a compliance
certificate signed by a Responsible Officer of such Originator stating
that (aa) the attached financial statements have been prepared in
accordance with GAAP and accurately reflect the financial condition of
the Originator and (bb) to the best of such Responsible Officer's
knowledge, no Originator Termination Event or Potential Originator
Termination Event exists, or if any Originator Termination Event or
Potential Originator Termination Event exists, stating the nature and
status thereof;
(c) Furnish to the Purchaser copies of all financial statements, financial
reports and proxy statements so furnished;
(d) Furnish to the Purchaser, promptly, from time to time, such historical
information, including ageing and liquidation schedules, in form and
substance satisfactory to the Funding Agent and the Rating Agencies,
as the Purchaser may reasonably request; and
(e) Furnish to the Purchaser, promptly, from time to time, such other
information regarding its operations, business affairs and financial
condition, or compliance with the terms of any Transaction Document,
in each case as the Purchaser may reasonably request.
4.2 Compliance with Law and Policies
(a) Comply with all Requirements of Law and material Contractual
Obligations to which it is subject and which are applicable to it
except to the extent that non-compliance would not reasonably be
likely to result in a Material Adverse Effect with respect to it.
(b) Perform its obligations in accordance with the Policies, as amended
from time to time in accordance with the Transaction Documents, in
regard to the Receivables and the other Receivable Assets.
4.3 Inspection of Property; Books and Records; Discussions
Keep proper books of records and account in which entries in conformity
with GAAP shall be made of all dealings and transactions in relation to its
business and activities; and permit representatives of the Purchaser upon
reasonable advance notice to visit and inspect any of its properties and
examine and make abstracts from any of its books and records during normal
business hours on any Local Business Day and as often as may reasonably be
requested, subject to the Originator's security and confidentiality
requirements and to discuss the business, operations, properties and
financial condition of the Originator with officers and employees of the
Originator and with its Independent Public Accountants.
4.4 Collections
Instruct each Obligor to make payments in respect of its Receivables to
a/the Collection Account(s) and to comply in all material respects with
procedures with respect to Collections reasonably specified from time to
time by the Purchaser. In the event that any payments in respect of any
such Receivables are made directly to the Originator (including, without
limitation, any employees thereof or independent contractors employed
thereby), the Originator shall within one (1) Local Business Day of receipt
thereof, deliver or deposit such amounts to a/the Collection Account(s)
and, prior to forwarding such amounts, the Originator shall hold such
payments in trust for the account and benefit of the Purchaser.
4.5 Furnishing Copies, etc
Furnish to the Purchaser (subject to Clause 7.13 hereof):
(a) within five (5) Local Business Days of the Purchaser's request, a
certificate of a Responsible Officer of the Originator, certifying, as
of the date thereof, to the knowledge of such officer, that no
Originator Termination Event has occurred and is continuing or if one
has so occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto;
16
(b) promptly after a Responsible Officer of the Originator obtains
knowledge of the occurrence of any Originator Termination Event or
Potential Originator Termination Event, written notice thereof;
(c) promptly following request therefor, such other information,
documents, records or reports regarding or with respect to the
Receivables of the Originator, as the Purchaser may from time to time
reasonably request; and
(d) promptly upon determining that any Receivable originated by it
designated as an Eligible Receivable on the Daily Report or Monthly
Settlement Report was not an Eligible Receivable as of the date
provided therefor, written notice of such determination.
4.6 Responsibilities of the Originator as Local Servicer
Notwithstanding anything herein to the contrary, (i) the Originator, while
acting as Local Servicer, shall perform or cause to be performed all of its
obligations under the Policies related to the Receivables to the same
extent as if such Receivables had not been sold, assigned, transferred and
conveyed to the Purchaser hereunder, (ii) the exercise by the Purchaser of
any of its rights hereunder shall not relieve the Originator of its
obligations with respect to such Receivables and (iii) except as provided
by law, the Purchaser shall not have any obligation or liability with
respect to any Receivables, nor shall the Purchaser be obligated to perform
any of the obligations or duties of the Originator.
4.7 Assessments
Pay before the same become delinquent and discharge all taxes, assessments,
levies and other governmental charges imposed on it except such taxes,
assessments, levies and governmental charges which are being contested in
good faith and for which the Originator has set aside on its books adequate
reserves in accordance with UK GAAP.
4.8 Marking of Records
Each Originator will maintain a system that will clearly and unambiguously
indicate that the Receivables have been sold, assigned, conveyed or
transferred to the Purchaser, contributed by the Purchaser to the Company
and thereupon a Participation and security interest granted by the Company
to the Trustee. Each Originator agrees that from time to time it will
promptly execute and deliver all instruments and documents, and take all
further action, that Purchaser, the Company or the Trustee may reasonably
request in order to perfect, protect or more fully evidence the Trustee's
first priority perfected security interest in such Receivables and the
related Collections.
5. NEGATIVE COVENANTS
Each Originator hereby agrees that, so long as there are any amounts
outstanding with respect to Eligible Receivables originated by it,
previously sold, assigned, conveyed or
17
transferred by it to the Purchaser or until an Early Termination, whichever
is the later, it shall not:
5.1 Limitations on Transfers of Receivables, etc
At any time sell, convey, assign, transfer or otherwise dispose of any of
the Receivables or other Receivable Assets relating thereto, except as
contemplated by the Transaction Documents.
5.2 Extension or Amendment of Receivables
Whether acting as Local Servicer or otherwise, extend, make any Dilution
Adjustment to, rescind, cancel, amend or otherwise modify, or attempt or
purport to extend, amend or otherwise modify, the terms of any Receivables,
unless (a) (i) such cancellation, termination, amendment, modification, or
waiver is made in accordance with the servicing standards set forth in
Clause 4.12 of the Servicing Agreement (and would have been made in the
ordinary course of business), (ii) if such cancellation, termination,
amendment, modification or waiver arose as a result of a request from an
Obligor, (iii) if any such amendment, modification or waiver does not cause
such Receivable to cease to be an Eligible Receivable and (iv) such
cancellation, termination, amendment, modification or waiver would not have
a material and prejudicial effect on the collectibility of the relevant
Receivable or (b) such Dilution Adjustment is the result of a pre- existing
contractual obligation between it and the related Obligor with respect to
such Receivable provided, that in the event the Originator cancels an
invoice related to a Receivable, the Originator must make an Originator
Dilution Adjustment Payment in accordance with Clause 2.7, provided,
further that in the event the Originator cancels an invoice related to a
Receivable, either (i) such invoice must be replaced with an invoice
relating to the same transaction as the cancelled invoice of equal or
greater Principal Amount on the same day, (ii) such invoice must be
replaced with an invoice relating to the same transaction as the cancelled
invoice of a lesser Principal Amount on the same Business Day and the
Originator must make an Originator Dilution Adjustment Payment, to the
Purchaser, in an amount equal to the difference between such cancelled and
replacement invoices or (iii) the Originator must make an Originator
Dilution Adjustment Payment, to the Purchaser, in an amount equal to the
full value of such cancelled invoice pursuant to Clause 2.7.
5.3 Change in Payment Instructions to Obligors
Instruct any Obligor of any Receivables to make any payments with respect
to any Receivables other than by cheque or wire transfer to a/the
Collection Account.
5.4 Policies
Make any change or modification (or permit any change or modification to be
made) in any material respect to the Policies, except (i) if such changes
or modifications are necessary under any Requirement of Law, or (ii) if the
Rating Agency Condition is satisfied with respect thereto, provided,
however, that if any change or modification,
18
other than a change or modification permitted pursuant to sub-clause (i)
above, would reasonably be expected to have a Material Adverse Effect with
respect to a Series which is not rated by a Rating Agency, the consent of
Investor Certificateholders representing Fractional Undivided Interests
aggregating not less than 51% of the Adjusted Invested amount of such
Series (or, as otherwise specified in the related Supplement) shall be
required to effect such change or modification.
5.5 Ineligible Receivables
Without the prior written approval of the Purchaser, take any action which
to its knowledge would cause, or would permit, a Receivable that was
designated as an Eligible Receivable on the Purchase Date relating to such
Receivable to cease to be an Eligible Receivable, except as otherwise
expressly provided by this Agreement.
5.6 Business of the Originator
Fail to maintain and operate the business currently conducted by the
Originator, and business activities reasonably incidental or related
thereto in substantially the manner in which it is presently conducted and
operated if such failure would reasonably be expected to result in a
Material Adverse Effect with respect to it.
5.7 Limitation on Fundamental Changes
Enter into any merger or consolidate with another Person or sell, lease,
transfer or otherwise dispose of assets constituting all or substantially
all of its assets and its consolidated Subsidiaries (taken as a whole) to
another Person or liquidate or dissolve unless:
(a) either (i) the Originator is the surviving entity;
(b) subject to Clause 7.13 hereof, it has delivered to the Trustee a
certificate executed by a Responsible Officer of the Originator
addressed to the Trustee (i) stating that such consolidation, merger,
conveyance or transfer complies with this Clause 5.7 and (ii) further
stating in the Responsible Officer's certificate that all conditions
precedent herein provided for relating to such transaction have been
complied with;
(c) it has delivered to the Trustee an Opinion of Counsel from a
nationally recognised legal counsel to the effect that the assignment
of Receivables to the Purchaser by such Surviving Person, after the
date of such merger, consolidation, sale, lease, transfer or disposal
of assets, shall be treated as a "true sale" of any such Receivables;
(d) it has delivered to the Trustee a General Opinion; and
(e) the Rating Agency Condition has been satisfied.
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5.8 Administration and Winding Up
The Originator hereby undertakes to the Purchaser that, until one year and
one day has elapsed since the last day on which Commercial Paper was
outstanding, it will not petition or commence proceedings for the
administration or winding up (nor join any person in the petition or
commencement of proceedings for the administration or winding up) of the
Purchaser.
6. TERMINATION EVENTS
6.1 Originator Termination Events
The following events shall be construed as "Originator Termination Events":
(a) an Originator shall fail to pay any amount due hereunder in accordance
with the provisions hereof and such failure shall continue unremedied
for a period of five Business Days from the earlier to occur of (i)
the date upon which a Responsible Officer of an Originator obtains
actual knowledge of such failure or (ii) the date on which written
notice of such failure, requiring the same to be remedied, shall have
been given (A) to such Originator by the Purchaser or the Trustee or
(B) to the Purchaser, to the Trustee and to such Originator by holders
of Investor Certificates evidencing 25% or more of the Aggregate
Invested Amount; or
(b) an Originator shall fail to observe or perform any other covenant or
agreement applicable to it contained herein (other than as specified
in sub-clause (a) of this Clause 6.1) that has a Material Adverse
Effect with respect to it and that continues unremedied until ten (10)
Local Business Days after the date on which written notice of such
failure, requiring the same to be remedied shall have been given (A)
to such Originator by the Purchaser or the Trustee or (B) to the
Purchaser, to the Trustee and to the Originator by holders of Investor
Certificates evidencing 25% or more of the Aggregate Invested Amount,
provided that if such failure may be cured and the Originator is
diligently pursing such cure, such event shall not constitute an
Originator Termination Event for an additional thirty (30) days; or
(c) any representation or warranty made by an Originator in this Agreement
or in any certificate delivered pursuant to this Agreement shall prove
to have been incorrect in any material respect when made or deemed
made, and which continues unremedied until ten (10) Local Business
Days after the date on which written notice thereof, requiring the
same to be remedied, shall have been given (A) to such Originator by
the Purchaser or the Trustee or (B) to the Purchaser, to the Trustee
and to the Originator by holders of Investor Certificates evidencing
25% or more of the Aggregate Invested Amount, provided that if such
incorrectness may be cured and the Originator is diligently pursuing
such cure, such event shall not constitute an Originator Termination
Event for an additional thirty (30) days and provided further that an
Originator Termination Event shall not be deemed to have occurred
under
20
this sub-clause (c) based upon a breach of any representation or
warranty set forth in Clause 3.3 if the Originator shall have complied
with the provisions of Clause 2.8 in respect thereof; or
(d) an Originator has been terminated as Local Servicer with respect to
the Receivables originated by it, and not replaced as a Local Servicer
by an affiliate of Huntsman International, following a Master Servicer
Default under the Servicing Agreement.
6.2 Program Termination Events
The following events shall be construed as "Program Termination Events":
(a) an Insolvency Event shall have occurred with respect to an Originator;
or
(b) there shall have occurred and be continuing (i) an Early Amortisation
Event set forth in Clause 7.01 of the Pooling Agreement or (ii) the
Amortisation Period with respect to all Outstanding Series; or
(c) a Federal (or equivalent) tax notice of Lien, in an amount equal to or
greater than $500,000, shall have been filed against an Originator
unless there shall have been delivered to the Trustee and the Rating
Agencies proof of release of such Lien; or
(d) any Originator Termination Event shall have occurred and be continuing
with respect to an Originator that, as of the last Monthly Settlement
Report, had originated more than 10% of the Aggregate Receivables
Amount reflected on such report; or
(e) an Originator Termination Event shall have occurred but the Originator
has not been terminated within 10 calendar days in accordance with
Clause 2.10 of the Pooling Agreement.
6.3 Remedies
(a) Upon the occurrence and continuance of any Originator Termination
Event as described in clause 6.1, the Purchaser shall (i) cease to
accept any Offer for Sale of Receivables from such Originator
Termination Event and (ii) the Originator shall be terminated as an
Originator upon 10 days written notice (the date on which such notice
becomes effect, the "Originator Termination Date"), provided that such
removal or termination shall be in accordance with clause 2.10 of the
Pooling Agreement.
(b) Upon the occurrence and continuance of any Program Termination Event
and after the expiration of any applicable cure period as described in
clause 6.3, the Purchaser shall cease without further notice, which
the Originator hereby waives, to accept any Offer hereunder (such date
of termination, the "Program Termination Date"), and there shall be an
Early Amortisation Event pursuant to clause 7.01 of the Pooling
Agreement.
21
(c) Each Originator agrees that, upon the occurrence and during the
continuation of Program Termination Event as described in Clauses
6.2(a) or (b)(i):
(i) the Purchaser (and its assignees) shall have the right at any
time or require that each Originator, at its expense give
Notice of Assignment to the Obligors in respect of the
Receivables and other Receivables Assets of the assignment
thereof to the Purchaser and may direct that payment of all
amounts due or to become due under the Receivables be made
directly to the relevant currency Company Concentration
Account;
(ii) each Originator in such capacity or in its capacity as Local
Servicer, shall, upon the Purchaser's (or its assignees')
written request and at such Originator's expense, (A) assemble
all of its documents, instruments and other records (including
credit files and computer tapes or disks) that (1) evidence or
will evidence or record Receivables and (2) are otherwise
necessary or desirable to effect Collections of such
Receivables including (i) Receivable specific information
including, when applicable, invoice number, invoice due date,
invoice value, purchase order reference, shipping date,
shipping address, shipping terms, copies of delivery notes,
bills of lading, insurance documents, copies of letters of
credit, bills of exchange or promissory notes, other security
documents, and (ii) Obligor specific information, including
copy of the Contract, correspondence file and details of any
security held (collectively, the "Originator Documents") and
(B) deliver such Originator Documents to the Purchaser or its
designee at a place designated by the Purchaser. In recognition
of the Originator's need to have access to any Originator
Documents which may be transferred to the Purchaser hereunder,
whether as a result of its continuing business relationship
with any Obligor for Receivables or as a result of its
responsibilities as Local Servicer, the Purchaser hereby grants
to each Originator a license to access the Originator Documents
transferred by such Originator to the Purchaser and to access
any such transferred computer software in connection with any
activity arising in the ordinary course of the Originator's
business or in performance of the Originator's duties as Local
Servicer, provided that the Originator shall not disrupt or
otherwise interfere with the Purchaser's use of and access to
the Originator Documents and its computer software during such
license period;
(iii) upon written request of the Purchaser, each Originator will (A)
deliver to the Purchaser all licenses, rights, computer
programs, related material, computer tapes, disks, cassettes
and data necessary for the immediate collection of the
Receivables by the Purchaser, with or without the participation
of the Originator (excluding software licenses which by their
terms are not permitted to be so delivered, provided that the
Originator shall use reasonable efforts to obtain the consent
of the
22
relevant licensor to such delivery but shall not be required,
to the extent it has an ownership interest in any electronic
records, computer software or licenses, to transfer, assign,
set-over or otherwise convey such ownership interests to the
Purchaser) and (B) make such arrangements with respect to the
collection of the Receivables as may be reasonably required by
the Purchaser.
6.4 The rights referred to or contained in Clause 6.3 and the powers conferred
thereby may be exercised only at the times and in the circumstances
mentioned therein and, accordingly, the Purchaser hereby undertakes to the
Originator that it will not exercise or purport to exercise such rights
other than at such times and in such circumstances.
6.5 The Originator hereby agrees that if an Originator Termination Date and/or
Program Termination Event occurs, the Purchaser may notify in writing the
other parties hereto of such fact and thereafter exercise its rights
referred to or contained in Clause 6.3 as if a Originator Termination
Notice had been given on the date of such notice and the other provisions
of Clause 6.3 shall thereupon also apply.
7. MISCELLANEOUS
7.1 Payments
(a) All payments to be made by a party ("payor") hereunder shall be made
in the currency of such liability and, if no currency is specified, in
Sterling on the applicable due date and in immediately available funds
to the recipient's ("payee") account or to such other account as may
be specified by such payee from time to time in a notice to such
payor. Wherever any payment to be made under this Agreement shall be
stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day.
(b) Any payments made by any person by way of acceptance of an Offer (as
mentioned in Clause 2.2(d)) shall be made in the relevant Approved
Currency for the purposes of the Offer (or in any other currency
agreed by the parties for those purposes) and in immediately available
funds to the relevant Originator's account.
7.2 Costs and Expenses
Each Originator agrees jointly and severally (a) to pay or reimburse the
Purchaser for all of its out-of-pocket costs and expenses incurred in
connection with the preparation and execution of, and any amendment,
supplement or modification to, this Agreement, the other Transaction
Documents and any other documents prepared in connection herewith and
therewith, the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, all
reasonable fees and disbursements of counsel, (b) to pay or reimburse the
Purchaser for all its costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement and any of
the other Transaction Documents, including, without
23
limitation, the reasonable fees and disbursements of counsel to the
Purchaser, (c) (except as provided in Clause 7.16) to pay, indemnify, and
hold the Purchaser harmless from, any and all recording and filing fees and
any and all liabilities with respect to, or resulting from any delay caused
by an Originator in paying, stamp, excise and other similar taxes, if any,
which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of, any of the
transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement and any
such other documents, and (d) to pay, indemnify, and hold the Purchaser
harmless from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (i) which may at any time be
imposed on, incurred by or asserted against the Purchaser in any way
relating to or arising out of this Agreement or the other Transaction
Documents or the transactions contemplated hereby and thereby or in
connection herewith or any action taken or omitted by the Purchaser under
or in connection with any of the foregoing (all such other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements being herein called "Originator Indemnified
Liabilities") or (ii) which would not have been imposed on, incurred by or
asserted against the Purchaser but for its having acquired the Receivables
hereunder, provided, however, that such indemnity shall not be available to
the extent that such Originator Indemnified Liabilities are finally
judicially determined to have resulted from the gross negligence or wilful
misconduct of the Purchaser. The agreements of the Originators in this
Clause 7.2 shall survive the collection of all Receivables, the termination
of this Agreement and the payment of all amounts payable hereunder.
7.3 Successors and Assigns
This Agreement shall be binding upon and inure to the benefit of the
Originators and the Purchaser and their respective successors (whether by
merger, consolidation or otherwise) and permitted assigns. Each Originator
agrees that it will not assign or transfer all or any portion of its rights
or obligations hereunder without the prior written consent of the
Purchaser. Each Originator acknowledges that the Purchaser shall contribute
the Receivables Assets to the Company and that the Company shall grant a
Participation and a security interest in all of its rights thereunder to
the Trustee pursuant to the Pooling Agreement.
7.4 Governing Law
This Agreement shall be governed by, and construed in accordance with,
English law.
7.5 No Waiver; Cumulative Remedies
No failure to exercise and no delay in exercising, on the part of the
Purchaser, any right, remedy, power or privilege hereunder, shall operate
as a waiver thereof, nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right,
24
remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exhaustive of any rights, remedies,
powers and privileges provided by law.
7.6 Amendments and Waivers
Neither this Agreement nor any terms hereof may be amended, supplemented or
modified except in a writing signed by the Purchaser and each Originator
and that otherwise complies with any applicable provision in the other
Transaction Documents. Any amendment, supplement or modification shall not
be effective until the Rating Agency Condition has been satisfied.
7.7 Severability
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
7.8 Accession
If any United Kingdom Affiliate of the Originator acceptable to the
Purchaser and the Administrative Agent executes and delivers to the
Purchaser and the Administrative Agent a duly completed Accession
Undertaking in substantially the form set out in the Seventh Schedule and
the Accession Legal Opinion from legal counsel acceptable to the Purchaser
and the Administrative Agent and the Rating Agencies in substantially the
form set out in the Eighth Schedule and the provisions of Section 2.9 of
the Pooling Agreement are satisfied, such Affiliate of the Originator shall
become a party to this Agreement as an Originator on the delivery of such
Accession Undertaking and such Accession Legal Opinion to the Purchaser and
the Administrative Agents and the satisfaction of such provisions.
7.9 Notices
All notices, requests and demands to or upon the respective parties hereto
to be effective shall be in writing (including by telecopy), and, unless
otherwise expressly provided herein, 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 the case of the Purchaser and each
Originator, or to such other address as may be hereafter notified by the
respective parties hereto:
With respect to the Purchaser:
25
Huntsman International LLC
500 Huntsman Way
Salt Lake City
Utah 84108
Attention: Office of the General Counsel
Copy to:
Huntsman (Europe) B.V.B.A.
Everslaan 45
B-3078 Everberg
Belgium
Telecopy: 32 2759 5501
With respect to the Originators:
Tioxide Europe Limited
Haverton Hill Road
Billingham
TS23 1PS
Attention: Company Secretary
Telecopy: 01642 376 460
Huntsman Petrochemicals (UK) Limited
Haverton Hill Road
Billingham
TS23 1PS
Attention: Company Secretary
Telecopy: 01642 376 460
Copy to:
Huntsman (Europe) B.V.B.A.
Everslaan 45
B-3078 Everberg
Belgium
Telecopy: 32 2759 5501
The Chase Manhattan Bank (Ireland) plc, as Trustee
Chase Manhattan House
International Financial Services Centre
Dublin 1
Ireland
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7.10 Counterparts
This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by telecopy),
and all of said counterparts taken together shall be deemed to constitute
one and the same instrument. A set of the copies of this Agreement signed
by all the parties shall be lodged with the Purchaser.
7.11 Jurisdiction
(a) Each of the parties hereto irrevocably agrees for the benefit of each
other party that the courts of England shall have jurisdiction to hear
and determine any suit, action or proceeding, and to settle any
disputes, which may arise out of or in connection with the Transaction
Documents and, for such purposes, irrevocably submits to the
jurisdiction of such courts.
(b) Each party hereto irrevocably waives any objection which it might now
or hereafter have to the courts referred to in Clause 7.11(a) being
nominated as the forum to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with any Transaction Document and agrees not to claim that
any such court is not a convenient or appropriate forum.
(c) The submission to the jurisdiction of the courts referred to in Clause
7.11(a) shall not (and shall not be construed so as to) limit the
right of any person to take proceedings against any other party hereto
in any other court of competent jurisdiction nor shall the taking of
proceedings in any one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction, whether concurrently or not if
and to the extent permitted by applicable law.
(d) The Purchaser hereby irrevocably appoints Tioxide Europe Limited of
Haverton Hill Road, Billingham, TS23 1PS to accept service of any
process on its behalf and further undertakes to the other parties
hereto that it will at all times during the continuance of this
Agreement maintain the appointment of some person in England as its
agent for the service of process and irrevocably agrees that service
of any writ, notice or other document for the purposes of any suit,
action or proceeding in the courts of England shall be duly served
upon it if delivered or sent by registered post to the address of such
appointee (or to other such address in England as that party may
notify to the other parties hereto).
7.12 No Bankruptcy Petition
(a) Each Originator, by entering into this Agreement, covenants and
agrees, to the extent permissible under applicable law, that it will
not institute against, or join any other Person in instituting
against, the Purchaser any bankruptcy, reorganisation, arrangement,
insolvency or liquidation proceedings, or other
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proceedings (including, but not limited to, petitioning for the
declaration of the Purchaser's assets en desastre) under any
Applicable Insolvency Laws.
(b) Notwithstanding anything elsewhere herein contained, the sole remedy
of an Originator or any other Person in respect of any obligation,
covenant, representation, warranty or agreement of the Purchaser under
or related to this Agreement shall be against the assets of the
Purchaser. Neither the Originator nor any other Person shall have any
claim against the Purchaser to the extent that such assets are
insufficient to meet such obligation, covenant, representation,
warranty or agreement (the difference being referred to herein as a
"shortfall") and all claims in respect of the shortfall shall be
extinguished.
7.13 Termination
This Agreement will terminate at such time as (a) the Purchaser is required
to cease accepting any offer hereunder pursuant to Clause 6.2 and (b) all
Receivables have been collected, and the proceeds thereof turned over to
the Purchaser and all other amounts owing to the Purchaser hereunder shall
have been paid in full or, if Receivables have not been collected, such
Receivables have become Defaulted Receivables and the Purchaser shall have
completed its collection efforts in respect thereto, provided, however,
that the indemnities of an Originator to the Purchaser set forth in this
Agreement shall survive such termination and provided further that, to the
extent any amounts remain due and owing to the Purchaser hereunder, the
Purchaser shall remain entitled to receive any Collections on Receivables
which have become Defaulted Receivables after it shall have completed its
collection efforts in respect thereof. Notwithstanding anything to the
contrary contained herein, if at any time, any payment made by an
Originator is rescinded or must be restored or returned by the Purchaser as
a result of any Insolvency Event with respect to an Originator then an
Originator's obligations with respect to such payment shall be reinstated
as though such payment had never been made.
7.14 Responsible Officer Certificates; No Recourse
Any certificate executed and delivered by a Responsible Officer of an
Originator or the Purchaser pursuant to the terms of the Transaction
Documents shall be executed by such Responsible Officer not in an
individual capacity but solely in his or her capacity as an officer of such
Originator or the Purchaser, as applicable, and such Responsible Officer
will not be subject to personal liability as to the matters contained in
the certificate. A director, officer, manager, employee, or shareholder, as
such, of an Originator or Purchaser shall not have liability for any
obligation of such Originator or the Purchaser hereunder or under any
Transaction Document or for any claim based on, in respect of, or by reason
of, any Transaction Document, unless such claim results from the gross
negligence, fraudulent acts or wilful misconduct of such director, officer,
employee, manager or shareholder.
7.15 Confidential Information
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(a) Unless otherwise required by applicable law, and subject to Clause
7.15(b), each of the parties hereto undertakes to maintain the
confidentiality of this Agreement in its communications with third
parties and otherwise. None of the parties shall disclose to any
person any information of a confidential nature of or relating to
either an Originator, the Trustee or Purchaser, which such party may
have obtained as a result of the Transaction (the "Confidential
Information"). For the avoidance of doubt, the Purchaser shall
restrict disclosure of Confidential Information to its officers,
employees, agents and advisers who need to receive such information to
ensure the proper functioning of the Transaction. The Trustee shall
procure that such officers, employees, agents and advisers shall keep
confidential all of the Confidential Information received.
(b) The provisions of this Clause 7.15(b) shall not apply:
(i) To the disclosure of any information which is or becomes public
knowledge otherwise than as a result of the conduct of the
recipient;
(ii) To the disclosure of Confidential Information to the Trustee's
assigns or the Rating Agencies (provided that such information
is disclosed subject to the condition that such party will hold
it confidential on the same basis);
(iii) To the disclosure of any information with the written consent
of the parties hereto;
(iv) To the disclosure of any information in response to any order
of any court or Governmental Authority; or
(v) To the disclosure of any information reasonably required for
the completion and filing of any financing statements pursuant
to Clauses 2.3(c), and 4.5.
7.16 Stamp Duty
The Originator will pay and hold itself responsible for and will seek no
indemnity from the Purchaser or the Company in respect of Stamp Duty which
is required to be paid in order to secure the stamping of any Relevant
Document for any of the following purposes:
(a) Allowing the Relevant Document in question to be produced in evidence
in proceedings in the United Kingdom where this is required in order
to enable the Purchaser or the Company to enforce its rights in
respect of any Purchased Receivables against the Obligors and either:
(i) the judge, arbitrator or other person responsible for the
determination of such proceedings has ruled that an executed
original or counterpart of the Relevant Document must be produced
in evidence as aforesaid
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(provided that if an appeal against the ruling is permissible and
the Originator so requests, and on the condition that the
Originator indemnifies the Purchaser or the Company, as the case
may be, to its respective satisfaction on an after-tax basis for
all costs involved in such an appeal, the Purchaser or the
Company, as the case may be, will pursue such an appeal pending
which neither the Purchaser nor the Company, as the case may be,
will cause an executed original or counterpart of the Relevant
Document to be produced in evidence as aforesaid); or
(ii) the rules governing the conduct of such proceedings provide that
a certified unstamped copy of the Relevant Document in question
or any other form of evidence of the matters which are the
subject of such proceedings cannot be produced as adequate
evidence for the purposes of such proceedings; or
(b) Complying with a requirement imposed by any judicial or governmental
authority for the Relevant Document in question to be stamped before
it will be taken into account for the purpose of determining any
liability of the Purchaser or the Company to taxation (subject to the
Purchaser or (as the case may be) the Company taking reasonable steps
to resist or avoid such requirement (insofar as it is able to do so
whilst fully complying with its obligations under applicable law and
practice and without causing any material prejudice (actual or
potential) to its interests)).
IN WITNESS WHEREOF this Agreement has been entered into by the parties hereto
acting by their authorised signatories on the date first above written.
Signed by an authorised Officer of
HUNTSMAN INTERNATIONAL LLC
/s/ Authorized Signatory
Signed by an authorised Officer of
TIOXIDE EUROPE LIMITED
/s/ Authorized Signatory
Signed by an authorised Officer of
HUNTSMAN PETROCHEMICALS (UK) LIMITED
/s/ Authorized Signatory
Signed by an authorised Officer of
HUNTSMAN (EUROPE) B.V.B.A.
/s/ Authorized Signatory
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