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RETAILERS NATIONAL BANK,
Seller
and
TARGET CAPITAL CORPORATION,
Purchaser
AMENDED AND RESTATED
BANK RECEIVABLES PURCHASE AGREEMENT
Dated as of April 28, 2000
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1. Definitions..................................... 2
Section 1.2. Other Definitional Provisions................... 6
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.1. Purchase........................................ 8
Section 2.2. Addition of Additional Accounts................. 10
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1. Purchase Price.................................. 12
Section 3.2. Adjustments to Purchase Price.................. 12
Section 3.3. Settlement and Ongoing Payment of
Purchase Price................................ 12
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of RNB
Relating to RNB.............................. 14
Section 4.2. Representations and Warranties of RNB
Relating to the Agreement and the
Receivables................................... 16
Section 4.3. Representations and Warranties of TCC........... 19
ARTICLE V
COVENANTS
Section 5.1. RNB Covenants................................... 21
Section 5.2. TCC Covenant.................................... 24
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.1. Reassignment of Ineligible
Receivables................................... 25
Section 6.2. Reassignment of Certificateholders'
Interest in Trust Portfolio................... 25
Section 6.3. Conveyance of Reassigned Receivables............ 26
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1. Conditions to TCC's Obligations Regarding
Initial Receivables............................ 27
Section 7.2. Conditions to TCC's Obligations Regarding
Additional Receivables........................ 27
Section 7.3. Conditions Precedent to Obligations
of RNB........................................ 28
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.1. Term............................................ 30
Section 8.2. Purchase Termination............................ 30
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1. Amendment....................................... 32
Section 9.2. GOVERNING LAW; JURISDICTION..................... 32
Section 9.3. Notices.......................................... 33
Section 9.4. Severability of Provisions...................... 34
Section 9.5. Assignment, Sale of Accounts.................... 34
Section 9.6. Acknowledgement and Agreement of RNB............ 35
Section 9.7. Further Assurances.............................. 36
Section 9.8. No Waiver; Cumulative Remedies................... 36
Section 9.9. Counterparts..................................... 36
Section 9.10. Binding Third-Party Beneficiaries............... 36
Section 9.11. Merger and Integration........................... 37
Section 9.12. Headings........................................ 37
Section 9.13. Schedules and Exhibits.......................... 37
Section 9.14. Survival of Representations and
Warranties..................................... 37
EXHIBIT
Exhibit A - Form of Supplemental Conveyance
SCHEDULE
Schedule 1 - List of Accounts [Deemed Incorporated by
Reference]
AMENDED AND RESTATED BANK RECEIVABLES PURCHASE AGREEMENT, dated
as of April 28, 2000, by and between RETAILERS NATIONAL BANK, a national
banking association ("RNB"), and TARGET CAPITAL CORPORATION, a Minnesota
corporation ("TCC").
W I T N E S S E T H:
WHEREAS, RNB and TCC have heretofore executed and delivered a
Bank Receivables Purchase Agreement, dated as of September 13, 1995 (as
amended, supplemented or otherwise modified, the "Original Bank Receivables
Purchase Agreement"), by and between Retailers National Bank, as the
Seller, and Target Capital Corporation (formerly known as Xxxxxx Xxxxxx
Capital Corporation), as the Purchaser;
WHEREAS, the Purchaser, formerly known as Xxxxxx Xxxxxx Capital
Corporation, has been renamed Target Capital Corporation and desires to
amend and restate the Original Bank Receivables Purchase Agreement to read
in its entirety as set forth below;
WHEREAS, TCC desires to purchase, from time to time, certain
Receivables (hereinafter defined) arising in certain Accounts (hereinafter
defined) of RNB;
WHEREAS, RNB desires to sell from time to time and assign such
Receivables to TCC upon the terms and conditions hereinafter set forth;
WHEREAS, it is contemplated that the Receivables purchased
hereunder will be transferred by TCC to TRC and by TRC to the Trust
(hereinafter defined) in connection with the issuance of certain
Certificates (hereinafter defined);
WHEREAS, RNB agrees that all covenants and agreements made by
RNB herein with respect to the Accounts (hereinafter defined) and
Receivables shall also be for the benefit of the Trustee (hereinafter
defined) and all holders of the Certificates;
WHEREAS, Section 9.1 of the Original Bank Receivables Purchase
Agreement provides that RNB and TCC, without the consent of any of the
Certificateholders, may amend the Original Bank Receivables Purchase
Agreement from time to time so long as (x) the Rating Agency Condition
shall have been satisfied with respect to such amendment and (y) the
Trustee shall have received an Opinion of Counsel that such amendments do
not adversely affect in any material respect the interests of the Trustee
or the Certificateholders; and
WHEREAS, all conditions precedent to the execution of this
Agreement have been complied with;
NOW, THEREFORE, pursuant to Section 9.1 of the Original Bank
Receivables Purchase Agreement, RNB and TCC hereby agree that effective on
and as of the date hereof, the Original Bank Receivables Purchase Agreement
is hereby amended and restated in its entirety as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Each capitalized term used herein or
in any certificate, document, or Conveyance Paper made or delivered
pursuant hereto, and not defined herein or therein, shall have the meaning
specified in the Pooling and Servicing Agreement. In addition, the
following words and phrases shall have the following meanings:
"Account" shall mean each Initial Account, each Automatic
Additional Account and each Supplemental Account, but shall exclude any
Account all the Receivables in which are either reassigned or assigned to
RNB or its designee pursuant to Section 6.2 or to the Servicer pursuant to
Section 3.3 of the Pooling and Servicing Agreement and any inactive
Accounts which in accordance with the Credit Card Guidelines have been
removed from the active computer records of RNB. The definition of Account
shall include each account into which an Account is transferred (a
"Transferred Account"); provided that (i) such transfer is made in
accordance with the Credit Card Guidelines and (ii) such Transferred
Account can be traced or identified, by reference to or by way of the
computer files, microfiche lists or printed lists delivered to TCC by RNB
(and, in turn to TRC by TCC pursuant to Section 2.1 of the TRC Purchase
Agreement and to the Trustee by TCC pursuant to Section 2.1 of the Pooling
and Servicing Agreement), if applicable, as an account into which an
Account has been transferred. The term "Account" shall be deemed to refer
to an Automatic Additional Account or a Supplemental Account only from and
after the Addition Date with respect thereto, and the term "Account" shall
be deemed to refer to any Removed Account only prior to the Removal Date
with respect thereto.
"Addition Cut-Off Date" shall mean the date as of which any
Supplemental Accounts or Participation Interests are designated by TRC for
inclusion in the Trust, as specified in the related Assignment.
"Addition Date" shall mean (i) with respect to Supplemental
Accounts, the date on which the Receivables in such Supplemental Accounts
are conveyed by RNB to TCC pursuant to Section 2.2, (ii) with respect to
Automatic Additional Accounts, the date on which such accounts are created,
and (iii) with respect to Participation Interests, the date from and after
which such Participation Interests are to be included as Trust Assets
pursuant to Section 2.2.
"Addition Notice Date" shall have the meaning specified in
Section 2.2(b) of this Agreement.
"Additional Accounts" shall mean an Automatic Additional
Account or a Supplemental Account.
"Agreement" shall mean this Bank Receivables Purchase Agreement
and all amendments hereof and supplements hereto.
"Automatic Addition Suspension Date" shall have the meaning
specified in Section 2.2(a) of this Agreement.
"Automatic Addition Termination Date" shall have the meaning
specified in Section 2.2(a) of this Agreement.
"Automatic Additional Account" shall mean each open end credit
card account established pursuant to a Credit Card Agreement between RNB
and the related Obligor coming into existence (i) after the Initial Cut-Off
Date and prior to the earlier of the Automatic Addition Termination Date or
an Automatic Addition Suspension Date and (ii) following an Automatic
Addition Suspension Date and after a Restart Date and prior to a subsequent
Automatic Addition Suspension Date or any Automatic Addition Termination
Date.
"Closing Date" shall mean September 13, 1995.
"Conveyance" shall have the meaning specified in Section 2.1
(a).
"Conveyance Papers" shall have the meaning specified in Section
4.1(c).
"Credit Adjustment" shall have the meaning specified in Section
3.2.
"Debtor Relief Laws" shall mean (i) the Bankruptcy Code of the
United States of America and (ii) all other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, suspension of payments, readjustment of debt,
marshalling of assets or similar debtor relief laws of the United States,
any state or any foreign country from time to time in effect affecting the
rights of creditors generally.
"Initial Account" shall mean each open end credit card account
established pursuant to a Credit Card Agreement between RNB and any Person
existing on the Initial Cut-Off Date.
"Initial Cut-Off Date" shall mean the close of business on June
30, 1995.
"Insolvency Event" shall have the meaning specified in Section
8.2.
"New Principal Receivables" shall have the meaning set forth in
Section 3.1.
"Pooling and Servicing Agreement" shall mean the Amended and
Restated Pooling and Servicing Agreement, dated as of April 28, 2000, among
RNB, as Servicer, TRC, as Transferor and the Trustee, and all amendments
and supplements thereto.
"Portfolio Reassignment Price" shall mean the portion of the
amount payable by TRC to the Trustee pursuant to Section 2.6 of the Pooling
and Servicing Agreement with respect to Receivables previously sold
pursuant to this Agreement.
"Purchase Price" shall have the meaning set forth in Section
3.1.
"Purchased Assets" shall have the meaning set forth in Section
2.1.
"Receivable" shall mean any amount owing from time to time by
an Obligor under an Account, including amounts owing for purchases of goods
and services, and amounts payable for Finance Charge Receivables (exclusive
of Deferred Billing Fees and Merchant Fees). A Receivable shall be deemed
to have been created at the end of the day on the Date of Processing of
such Receivable. Receivables which become Defaulted Receivables shall not
be shown on RNB's records as amounts payable (and shall cease to be
included as Receivables) on the day on which they become Defaulted
Receivables.
"Removal Date" shall mean the date for removal of the Removed
Accounts and Participation Interests.
"Removed Accounts" shall mean those Accounts which TRC may on
any day of any Monthly Period, upon the satisfaction of certain conditions
set forth in Section 2.10 of the Pooling and Servicing Agreement, require
the reassignment to it or its designee of all the Trust's right, title and
interest in, to and under the Receivables then existing and thereafter
created, all moneys due or to become due and all amounts received with
respect thereto and all proceeds thereof in or with respect to the Accounts
then owned by RNB and designated by TRC or Participation Interests.
"Restart Date" shall have the meaning specified in Section
2.2(a) of this Agreement.
"RNB" shall mean Retailers National Bank, a national banking
association.
"Settlement Statement" shall have the meaning specified in
Section 3.3 of this Agreement.
"Supplemental Accounts" shall have the meaning specified in
Section 2.2(b) of this Agreement.
"Supplemental Conveyance" shall have the meaning set forth in
Section 2.2(b).
"TCC" shall mean Target Capital Corporation (formerly known as
Xxxxxx Xxxxxx Capital Corporation), a Minnesota corporation.
"Transferred Account" shall have the meaning set forth in the
definition of "Account."
"TRC" shall mean Target Receivables Corporation (formerly known
as Xxxxxx Xxxxxx Receivables Corporation), a Minnesota corporation.
"TRC Purchase Agreement" shall mean the Amended and Restated
Receivables Purchase Agreement, dated as of April 28, 2000, by and between
TCC, as seller and TRC, as purchaser.
"Trust" shall mean the trust created by the Pooling and
Servicing Agreement.
"Trustee" shall mean Norwest Bank Minnesota, National
Association, a national banking association organized and existing under
the laws of the United States, as, and acting in the capacity of, Trustee
under the Pooling and Servicing Agreement, or its successor-in- interest,
or any successor trustee appointed in accordance with the Pooling and
Servicing Agreement.
Section 1.2. Other Definitional Provisions. (a) Each
capitalized term defined in this Agreement shall have the defined meaning
when used in any certificate, other document, or Conveyance Paper made or
delivered pursuant hereto unless otherwise defined therein.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement or any Conveyance Paper shall
refer to this Agreement as a whole and not to any particular provision of
this Agreement; and Section, Subsection, Schedule and Exhibit references
contained in this Agreement are references to Sections, Subsections,
Schedules and Exhibits in or to this Agreement unless otherwise specified.
(c) All determinations of the Principal Receivables or Finance
Charge Receivables, and of any collections thereof, shall be made in
accordance with the Pooling and Servicing Agreement and all applicable
Supplements.
(d) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document,
and accounting terms partly defined in this Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Agreement or in any such certificate or other document are inconsistent
with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Agreement or in any such
certificate or other document shall control.
(e) Any reference to each Rating Agency shall only apply to any
specific rating agency if such rating agency is then rating any outstanding
Series.
(f) Unless otherwise specified, references to any amount as on
deposit or outstanding on any particular date shall mean such amount at the
close of business on such day.
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.1. Purchase. (a) By execution of this Agreement, RNB
does hereby sell, transfer, assign, set over and otherwise convey to TCC
(collectively, the "Conveyance"), without recourse all of its right, title
and interest in, to and under (i) the Receivables existing at the close of
business on the Initial Cut-Off Date and thereafter created from time to
time and arising in the Initial Accounts and the Receivables existing on
each applicable Addition Date and thereafter created from time to time and
arising in any Automatic Additional Accounts, and in each case, thereafter
created from time to time until the termination of the Trust, (ii) any
Merchant Fees and Deferred Billing Fees, (iii) all Recoveries allocable to
the foregoing Accounts and all Recoveries which are identified as relating
to specific Defaulted Receivables and (iv) all monies due or to become due
thereunder and all amounts received with respect thereto and all proceeds
(including, without limitation, "proceeds" as such term is defined in the
UCC) thereof (collectively, the "Purchased Assets").
(b) In connection with such Conveyance, TCC agrees (i) to
record and file, at its own expense, any financing statements (and
continuation statements with respect to such financing statements when
applicable) and to take such other action with respect to the Receivables
now existing and hereafter created, meeting the requirements of applicable
state law in such manner and in such jurisdictions as are necessary to
perfect, and maintain perfection of, the Conveyance of such Purchased
Assets from RNB to TCC on and after the Closing Date, (ii) that such
financing statements shall name RNB, as seller, and TCC, as purchaser, of
the Receivables and (iii) to deliver a file-stamped copy of such financing
statements or other evidence of such filings (excluding continuation
statements, which shall be delivered as filed) to RNB (or to the Trustee,
if RNB so directs) as soon as is practicable after filing.
(c) In connection with such Conveyance, RNB further agrees that
it will, at its own expense, (i) on (A) the Automatic Addition Termination
Date or Automatic Addition Suspension Date, in the case of the Initial
Accounts and any Additional Accounts designated pursuant hereto prior to
such dates, (B) the applicable Addition Date, in the case of Supplemental
Accounts, and (C) the applicable Removal Date, in the case of Removed
Accounts, indicate in its computer files or microfiche or printed lists
that the Receivables created in connection with the Accounts have been (a)
sold to TCC pursuant to this Agreement and (b) sold by TCC to TRC pursuant
to the TRC Purchase Agreement and (c) transferred by TRC to the Trustee
pursuant to the Pooling and Servicing Agreement for the benefit of the
Certificateholders by including (or, in the case of Removed Accounts,
either including such a code identifying the Removed Accounts only if the
removal occurs prior to the Automatic Addition Termination Date or any
Automatic Addition Suspension Date, or subsequent to a Restart Date, or
deleting such code thereafter) in such computer files and microfiche or
printed lists the code or other notation identifying each such Account and
(ii) deliver to TCC on the date referred to in clauses (A), (B) or (C)
above, as applicable, a computer file or microfiche or printed list
containing a true and complete list of all such Accounts specifying for
each such Account, as of the Automatic Addition Termination Date or any
Automatic Addition Suspension Date, in the case of clause (A) above, the
applicable Addition Cut-Off Date, in the case of Supplemental Accounts, and
the Removal Date, in the case of Removed Accounts, (A) its account number,
(B) the aggregate amount outstanding in such Account and (C) the aggregate
amount of Principal Receivables in such Account. Such computer files or
microfiche or printed lists, as supplemented from time to time to reflect
Supplemental Accounts or Removed Accounts, shall be marked as Schedule I to
this Agreement, shall be delivered to TCC (or to the Trustee, if so
directed by TCC) and marked as proprietary and confidential, and are hereby
incorporated into and made a part of this Agreement. RNB further agrees not
to alter the code or other notation referenced in clause (i) of this
paragraph with respect to any Account during the term of this Agreement
unless and until (x) such Account becomes a Removed Account, (y) a Restart
Date has occurred on which RNB starts including Automatic Additional
Accounts as Accounts or (z) RNB shall have delivered to TCC and the Trustee
at least 30 days prior written notice of its intention to do so and has
taken such action as is necessary or advisable to cause the respective
interests of TCC and the Trustee in the Receivables and other Trust Assets
to continue to be perfected with the priority required by this Agreement
and the Pooling and Servicing Agreement, respectively.
(d) It is the intention of the parties hereto that the
conveyance of the Receivables and the other Purchased Assets by RNB to TCC
as provided in this Section 2.1 be, and be construed as, an absolute sale,
without recourse, of the Receivables by RNB to TCC. Furthermore, it is not
intended that such conveyance be deemed a pledge of the Receivables and the
other Purchased Assets by RNB to TCC to secure a debt or other obligation
of RNB. If, however, notwithstanding the intention of the parties, the
conveyance provided for in this Section 2.1 is determined to be a transfer
for security, then this Agreement shall also be deemed to be a security
agreement within the meaning of Article 9 of the UCC and RNB hereby grants
to TCC a "security interest" within the meaning of Article 9 of the UCC in
all of RNB's right, title and interest in and to the Receivables and the
other Purchased Assets and all amounts payable to the holders of the
Receivables after the Closing Date in accordance with the terms thereof and
all proceeds of the conversion, voluntary or involuntary, of the foregoing
into cash, instruments, securities or other property, to secure a loan in
an amount equal to the Purchase Price of the Receivables.
Section 2.2. Addition of Additional Accounts. (a) All accounts
which meet the definition of Automatic Additional Accounts shall be
included as Accounts from and after the date upon which such Automatic
Additional Accounts are created and all Receivables in such Automatic
Additional Accounts, whether such Receivables are then existing or
thereafter created, shall be transferred automatically to TCC upon creation
by RNB. For all purposes of this Agreement, all receivables of such
Automatic Additional Accounts shall be treated as Receivables upon their
creation and shall be subject to the eligibility criteria specified in the
definitions in the Pooling and Servicing Agreement of "Eligible Receivable"
and "Eligible Account." RNB may elect at any time to terminate the
inclusion in Accounts of new accounts which would otherwise be Automatic
Additional Accounts as of any Business Day (the "Automatic Addition
Termination Date") or suspend such inclusion as of any Business Day (an
"Automatic Addition Suspension Date") until a future Business Day to be
notified in writing by RNB to TCC (the "Restart Date"), by delivering to
TCC ten days prior written notice of such election at least 10 days prior
to such Automatic Addition Termination Date or Automatic Addition
Suspension Date. Promptly after an Automatic Addition Termination Date, an
Automatic Addition Suspension Date or a Restart Date, RNB and TCC agree to
execute and TCC agrees to record and file at its own expense an amendment
to the financing statements referred to in Section 2.1(b) hereof to specify
the accounts then subject to this Agreement (which specification may
incorporate a list of accounts by reference) and, except in connection with
any such filing made after a Restart Date, to release any security interest
in any accounts created after the Automatic Addition Termination Date or
any Automatic Addition Suspension Date.
(b) If, from time to time, TCC becomes obligated to designate
supplemental accounts or Participation Interests pursuant to Section 2.2(b)
of the TRC Purchase Agreement, then TCC shall give RNB written notice
thereof on or before the eighth Business Day (the "Addition Notice Date")
prior to the Addition Date therefor, and RNB shall on or before the
Addition Date, designate sufficient Eligible Accounts (the "Supplemental
Accounts") to be included as Accounts, or Participation Interests, as the
case may be, so that after the inclusion thereof TCC will be in compliance
with the requirements of Section 2.2(b) of the TRC Purchase Agreement;
provided, however, that the failure of RNB to transfer Receivables to TCC
as provided in this paragraph solely as a result of the unavailability of a
sufficient amount of Eligible Receivables shall not constitute a breach of
this Agreement. Additionally, subject to Section 2.9(b) of the Pooling and
Servicing Agreement, from time to time, Accounts may be designated to be
included as Supplemental Accounts or Participation Interests may be
designated to be included as Trust Assets, in either case upon the mutual
agreement of RNB and TCC. In either event, RNB shall have sole
responsibility for selecting such Supplemental Accounts or Participation
Interests. In the case of Supplemental Accounts, RNB shall on or prior to
the Addition Date therefor execute and deliver to TCC a written assignment
from RNB to TCC in substantially the form of Exhibit A (the "Supplemental
Conveyance"). Upon such designation, such Supplemental Accounts shall be
deemed to be Accounts hereunder.
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1. Purchase Price. (a) The "Purchase Price" for the
Receivables which came into existence on or prior to the Closing Date
conveyed to TCC under this Agreement shall be payable on the Closing Date
and shall be an amount equal to 100% of Principal Receivables and Finance
Charge Receivables so conveyed (less the amount of any participation
interest in the Receivables previously issued to TCC by RNB). The Purchase
Price for the Receivables (including Receivables in Additional Accounts) to
be conveyed to TCC under this Agreement that are created on any Business
Day after the Closing Date shall be payable on the date of conveyance in an
amount equal to 100% of the Principal Receivables, based on estimated
Principal Receivables (subject to adjustment on each Distribution Date to
reflect actual Principal Receivables so conveyed (the "New Principal
Receivables")), the Purchase Price to be adjusted from time to time with
respect to New Principal Receivables originated thereafter to reflect such
factors as RNB and TCC mutually agree will result in a Purchase Price
determined to approximate the fair market value of such New Principal
Receivables.
(b) The Purchase Price to be paid by TCC on the Closing Date
and with respect to each Receivable created thereafter shall be paid in
cash in accordance with Section 3.3.
Section 3.2. Adjustments to Purchase Price. The Purchase Price
with respect to any Receivable previously sold to TCC by RNB which has
since been reduced by RNB or the Servicer because of a rebate, refund,
unauthorized charge or billing error to a cardholder because such
Receivable was created in respect of merchandise that was refused or
returned by a cardholder on each Business Day shall be reduced on such
Business Day by the amount of such adjustment (a "Credit Adjustment") and
such Credit Adjustment shall be payable on such Business Day, based on an
estimate of credit adjustments, subject to adjustment for actual
calculations on the related Distribution Date.
Section 3.3. Settlement and Ongoing Payment of Purchase Price.
On each Business Day, RNB shall deliver a settlement statement (the
"Settlement Statement") to TCC, showing the aggregate Purchase Price of
Receivables conveyed to TCC on such Business Day, and the amount which
remains unpaid as Credit Adjustments made with respect to such Business Day
pursuant to Section 3.2 hereof and any adjustment to the Purchase Price of
Receivables with respect to such Business Day pursuant to Section 6.1
hereof. On each Distribution Date, RNB shall calculate the actual aggregate
Purchase Price and Credit Adjustments for each day during the preceding
Monthly Period which shall also reflect adjustments to the aggregate
Purchase Price for such Monthly Period required pursuant to Section 6.1.
Any balance due from TCC to RNB shall be paid in immediately available
funds to RNB and any balance due from RNB to TCC shall be paid in
immediately available funds to TCC.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of RNB Relating to
RNB. RNB hereby represents and warrants to, and agrees with, TCC as of the
Closing Date and on each Addition Date, that:
(a) Organization and Good Standing. RNB is a national banking
association validly existing in good standing under the laws of the United
States, and has full corporate power, authority and legal right to own its
properties and conduct its business as such properties are presently owned
and such business is presently conducted, and to execute, deliver and
perform its obligations under this Agreement.
(b) Due Qualification. RNB is duly qualified to do business and
is in good standing as a foreign corporation (or is exempt from such
requirements), and has obtained all necessary licenses and approvals in
each jurisdiction in which failure to so qualify or to obtain such licenses
and approvals would render any Credit Card Agreement relating to an Account
owned by RNB or any Receivable unenforceable by RNB, the Seller, the
Servicer or the Trustee and would have a material adverse effect on the
interests of TCC or the Investor Certificateholders.
(c) Due Authorization. The execution, delivery and performance
of this Agreement and any other document or instrument delivered pursuant
hereto (such other documents or instruments, collectively, the ("Conveyance
Papers") and the consummation of the transactions provided for in this
Agreement or any other Conveyance Papers have been duly authorized by all
necessary corporate action on the part of RNB.
(d) No Conflict. The execution and delivery of this Agreement
and the Conveyance Papers by RNB, the performance of the transactions
contemplated by this Agreement and the Conveyance Papers, and the
fulfillment of the terms of this Agreement and the Conveyance Papers
applicable to RNB will not conflict with, violate or result in any breach
of any of the material terms and provisions of, or constitute (with or
without notice or lapse of time or both) a material default under, any
indenture, contract, agreement, mortgage, deed of trust, or other
instrument to which RNB is a party or by which it or any of its properties
are bound.
(e) No Violation. The execution, delivery and performance of
this Agreement and the Conveyance Papers by RNB and the fulfillment by RNB
of the terms hereof and thereof will not conflict with or violate any
Requirements of Law applicable to RNB.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of RNB, threatened against RNB, before
any court, regulatory body, administrative agency or other tribunal or
governmental instrumentality (i) asserting the invalidity of this Agreement
or any of the Conveyance Papers, (ii) seeking to prevent the consummation
of any of the transactions contemplated by this Agreement or any of the
Conveyance Papers, (iii) seeking any determination or ruling that, in the
reasonable judgment of RNB, would materially and adversely affect the
performance by RNB of its obligations under this Agreement or any of the
Conveyance Papers, (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Agreement or any of the Conveyance Papers or (v) seeking to affect
adversely the income tax attributes of the Trust under United States
Federal or applicable state income or franchise tax systems.
(g) All Consents. All approvals, authorizations, consents,
orders or registrations or declarations with any Person or any governmental
body or official required in connection with the execution and delivery by
RNB of this Agreement or any of the Conveyance Papers and the performance
of the transactions contemplated by this Agreement or any of the Conveyance
Papers by RNB have been duly obtained, effected or given and are in full
force and effect.
(h) Insolvency. RNB is not insolvent and no Insolvency Event
with respect to RNB has occurred, and the transfer of the Receivables by
RNB to TCC contemplated hereby has not been made in contemplation of such
insolvency or Insolvency Event.
The representations and warranties set forth in this Section
4.1 shall survive the transfer and assignment of the Receivables to TCC.
Upon discovery by RNB or TCC of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall
give written notice to the other party within three Business Days following
such discovery. RNB agrees to cooperate with TCC and the Trustee in
attempting to cure any such breach.
Section 4.2. Representations and Warranties of RNB Relating to
the Agreement and the Receivables.
(a) Representations and Warranties. RNB hereby represents and
warrants to TCC as of the date of this Agreement, as of the Closing Date
and, with respect to Additional Accounts, as of the related Addition Date
that:
(i) this Agreement and, in the case of Supplemental Accounts,
the related Supplemental Conveyance, when executed and delivered on
behalf of RNB, each constitute a valid and binding obligation of RNB
enforceable against RNB in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect affecting the enforcement of creditors rights in general and
except as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity);
(ii) as of the Automatic Addition Termination Date or any
Automatic Addition Suspension Date, and as of each subsequent
Addition Date with respect to Supplemental Accounts, Schedule I to
this Agreement and the related computer file, microfiche list or
printed list delivered pursuant to this Agreement, as supplemented to
such date, is an accurate and complete listing in all material
respects of all the Accounts as of such date or such Additional
Cut-Off Date, as the case may be, and the information contained
therein with respect to the identity of such Accounts and the
Receivables existing thereunder is true and correct in all material
respects as of such date or such applicable Additional Cut-Off Date,
as the case may be;
(iii) RNB is the legal and beneficial owner of all right, title
and interest in and to each Receivable (subject, on the Closing Date,
to any participation interest in the Receivables held by
TCC), RNB has the full right, power and authority to transfer the
Receivables pursuant to this Agreement; and each Receivable conveyed
to TCC by RNB has been conveyed to TCC free and clear of any Lien of
any Person claiming through or under RNB or any of its Affiliates
(other than Liens permitted under Section 5.1(b)) and in compliance,
in all material respects, with all Requirements of Law applicable to
RNB;
(iv) all authorizations, consents, orders, approvals or
authorizations of or registrations or declarations with any
Governmental Authority required to be obtained, effected or given by
RNB in connection with the conveyance of such Receivable to TCC have
been duly obtained, effected or given and are in full force and
effect;
(v) this Agreement or, in the case of Supplemental Accounts,
the related Supplemental Conveyance, upon execution and delivery on
behalf of RNB, constitutes a valid absolute sale and assignment to
TCC of all right, title and interest of RNB in and to the Receivables
and the other Purchased Assets, all monies due or to become due with
respect thereto and all proceeds thereof, and, in the case of
Supplemental Accounts, the related Supplemental Conveyance, will
constitute, at the time of such addition, an absolute sale of such
property and the proceeds thereof. Upon the filing of the financing
statements pursuant to Section 2.1(a) and, in the case of Receivables
hereafter created and the proceeds thereof, upon the creation
thereof, TCC shall have a first-priority perfected security interest
(as defined in the UCC) in such property and proceeds (as defined in
the UCC) except for Liens permitted by Section 5.1(b);
(vi) except as otherwise expressly provided in this Agreement,
the Pooling and Servicing Agreement or any Supplement, neither RNB
nor any Person claiming through or under RNB has any claim to or
interest in the Collection Account, the Special Funding Account, any
Series Account or any Enhancement;
(vii) on the Initial Cut-Off Date, with respect to each Initial
Account, on the date of its creation, with respect to each Automatic
Additional Account and, on the applicable Addition Cut-Off
Date, with respect to each related Supplemental Account each Account
classified as an "Eligible Account" by RNB in any document or report
delivered hereunder will satisfy the requirements contained in the
definition of Eligible Account and each Receivable classified as an
"Eligible Receivable" by RNB in any document or report delivered
hereunder will satisfy the requirements contained in the definition
of Eligible Receivable;
(viii) on the Initial Cut-Off Date, each Receivable then
existing is an Eligible Receivable, on the date of creation of each
Automatic Additional Account, each Receivable contained in such
Automatic Additional Account is an Eligible Receivable and, on the
applicable Additional Cut-Off Date, each Receivable contained in any
related Supplemental Account is an Eligible Receivable; and
(ix) as of the date of the creation of any new
Receivable, such Receivable is an Eligible Receivable.
(b) Notice of Breach. The representations and warranties set
forth in this Section 4.2 shall survive the transfer and assignment of the
Receivables to TCC. Upon discovery by either RNB or TCC of a breach of any
of the representations and warranties set forth in this Section 4.2, the
party discovering such breach shall give written notice to the other party
within three Business Days following such discovery; provided that the
failure to give notice within three Business Days does not preclude
subsequent notice. RNB hereby acknowledges that TCC intends to rely on the
representations hereunder in connection with representations made by TCC to
secured parties, assignees or subsequent transferees including but not
limited to transfers made by TCC to TRC pursuant to the TRC Purchase
Agreement. RNB agrees to cooperate with TCC and the Trustee in attempting
to cure any such breach.
Section 4.3. Representations and Warranties of TCC. As of the
Closing Date, TCC hereby represents and warrants to, and agrees with, RNB
that:
(a) Organization and Good Standing. TCC is a corporation
validly existing in good standing under the laws of the State of Minnesota
and has full power and authority to own its properties and conduct its
business as such properties are presently owned and such business is
presently conducted and to execute, deliver and perform its obligations
under this Agreement and the Conveyance Papers.
(b) Due Authorization. The execution and delivery of this
Agreement and the Conveyance Papers and the consummation of the
transactions provided for in this Agreement and the Conveyance Papers have
been duly authorized by TCC by all necessary corporate action on the part
of TCC.
(c) No Conflict. The execution and delivery of this Agreement
and the Conveyance Papers, the performance of the transactions contemplated
by this Agreement and the Conveyance Papers, and the fulfillment of the
terms hereof and thereof, will not conflict with, result in any breach of
any of the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under, any indenture,
contract, agreement, mortgage, deed of trust or other instrument to which
TCC is a party or by which it or any of its properties are bound.
(d) No Violation. The execution, delivery and performance of
this Agreement and the Conveyance Papers by TCC and the fulfillment of the
terms contemplated herein and therein applicable to TCC will not conflict
with or violate any Requirements of Law applicable to TCC.
(e) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of TCC, threatened against TCC, before
any court, regulatory body, administrative agency, or other tribunal or
governmental instrumentality (i) asserting the invalidity of this Agreement
or any of the Conveyance Papers, (ii) seeking to prevent the consummation
of any of the transactions contemplated by this Agreement or any of the
Conveyance Papers, (iii) seeking any determination or ruling that, in the
reasonable judgment of TCC, would materially and adversely affect the
performance by TCC of its obligations under this Agreement or any of the
Conveyance Papers or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Agreement or any of the Conveyance Papers.
(f) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by TCC in connection
with the execution and delivery by TCC of this Agreement and the Conveyance
Papers and the performance of the transactions contemplated by this
Agreement and the Conveyance Papers or the fulfillment of the terms of this
Agreement and the Conveyance Papers by TCC have been duly obtained,
effected or given and are in full force and effect.
The representations and warranties set forth in this Article IV
shall survive the Conveyance of the Receivables to TCC and termination of
the rights and obligations of TCC and RNB under this Agreement. Upon
discovery by TCC or RNB of a breach of any of the foregoing representations
and warranties, the party discovering such breach shall give prompt written
notice to the other party.
ARTICLE V
COVENANTS
Section 5.1. RNB Covenants. RNB hereby covenants and agrees
with TCC as follows:
(a) Receivables not to be Evidenced by Promissory Notes. Except
in connection with the enforcement or collection of an Account, RNB will
take no action to cause any Receivable transferred by it pursuant hereto to
be evidenced by any "instrument," other than an instrument that, taken
together with one or more other writings constitutes chattel paper (as such
terms are defined in the UCC) and, if any such Receivable is so evidenced
(whether or not in connection with the enforcement or collection of an
Account), it shall be deemed to be an Ineligible Receivable in accordance
with Section 6.1.
(b) Security Interests. Except for the conveyances hereunder or
as otherwise provided herein, RNB will not sell, pledge, assign or transfer
to any other Person, or grant, create, incur, assume or suffer to exist,
any Lien on any Receivable, whether now existing or hereafter created, or
any interest therein; and RNB will immediately notify TCC of the existence
of any Lien on any Receivable; and RNB shall defend the right, title and
interest of TCC in, to and under the Receivables, whether now existing or
hereafter created, against all claims of third parties claiming through or
under RNB; provided, however, that nothing in this Section 5.1(b) shall
prevent or be deemed to prohibit RNB from suffering to exist upon any of
the Receivables any Lien for taxes if such taxes shall not at the time be
due and payable or if the Seller shall currently be contesting the validity
thereof in good faith by appropriate proceedings and shall have set aside
on its books adequate reserves with respect thereto.
(c) RNB's Interest. Except for the conveyances hereunder and in
connection with any transaction permitted pursuant to Section 9.5 of the
Pooling and Servicing Agreement, RNB hereby agrees not to transfer, assign,
exchange or otherwise convey or pledge, hypothecate or otherwise grant a
security interest in the Accounts and any such attempted transfer,
assignment, exchange, conveyance, pledge, hypothecation or grant shall be
void.
(d) Delivery of Collections or Recoveries. If RNB receives
Collections or Recoveries, RNB agrees to pay to TCC (or its designee if TCC
so directs) all such Collections and Recoveries as soon as practicable
after receipt thereof but in no event later than two Business Days after
the Date of Processing by RNB; provided, however, that for so long as RNB
is acting as Servicer pursuant to the Pooling and Servicing Agreement, RNB
shall apply collections or recoveries received by it in accordance with the
Pooling and Servicing Agreement.
(e) Notice of Liens. RNB shall notify TCC promptly after
becoming aware of any Lien on any Receivable other than the conveyances
hereunder or any Lien permitted under Section 5.1(b) hereof or Section
2.7(b) of the Pooling and Servicing Agreement.
(f) Periodic Rate Finance Charges. (i) Except (x) as otherwise
required by any Requirement of Law or (y) as is deemed by RNB in its sole
discretion to be appropriate, it shall not at any time reduce the annual
percentage rates of the Periodic Finance Charges assessed on the
Receivables or reduce other fees charged on any of the Accounts if, either
(a) as a result of such reduction it is reasonably expected that such
reduction will cause an Early Amortization Event to occur with respect to a
Series or (b) such reduction (x) if RNB owns a comparable segment of
receivables, is not applied to any such comparable segment of consumer open
end credit accounts owned by RNB that have characteristics the same as or
substantially similar to the Receivables that are the subject of such
reduction and (y) if RNB does not own such a comparable segment of
receivables, will not be made with the intent to materially benefit the
Transferor over the Investor Certificateholders or to materially adversely
affect the Investor Certificateholders, except as otherwise restricted by
an endorsement, sponsorship, or other agreement between the Transferor and
an unrelated third party or by the terms of the Accounts.
(g) Credit Card Agreements and Guidelines. RNB shall comply
with and perform its obligations under the Credit Card Agreements relating
to the Accounts and the Credit Card Guidelines except insofar as any
failure to so comply or perform would not materially and adversely affect
the rights of TCC hereunder, the rights of TRC under the TRC Purchase
Agreement and the rights of the Trust or the Certificateholders under the
Pooling and Servicing Agreement or the Certificates. Subject to compliance
with all Requirements of Law, RNB may not change the terms and provisions
of the Credit Card Agreements or the Credit Card Guidelines with respect to
any of the Accounts in any respect (including the calculation of the
amount, or the timing, of charge-offs and the Periodic Finance Charges and
other fees to be assessed thereon) if, either (a) as a result of such
change it is reasonably expected that such change will cause an Early
Amortization Event to occur with respect to a Series or (b) such change (x)
if RNB owns a comparable segment of receivables, is not applied to any such
comparable segment of consumer open end credit accounts owned by RNB that
have characteristics the same as or substantially similar to the
Receivables that are the subject of such change and (y) if RNB does not own
such a comparable segment of receivables, will not be made with the intent
to materially benefit the Transferor over the Investor Certificateholders
or to materially adversely affect the Investor Certificateholders, except
as otherwise restricted by an endorsement, sponsorship, or other agreement
between the Transferor and an unrelated third party or by the terms of the
Accounts.
(h) Documentation of Transfer. RNB shall cause to be executed
and delivered to TCC any documents (including financing statements and/or
continuation statements under the UCC) that would be necessary to perfect
and maintain the security interest in and to the Purchased Assets
contemplated by this Agreement.
(i) Approval of Official Records. The execution, delivery and
performance of RNB's obligations under this Agreement, and the transactions
contemplated hereby, have been duly approved by RNB's Board of Directors.
(j) Sale. RNB agrees to treat the Conveyance, for all purposes
(including all relevant tax and financial accounting purposes) as a sale on
all federal and state tax returns, financial statements and other
applicable documents.
(k) Continuous Perfection. RNB shall not change its name,
identity or structure in any manner that might cause any financing or
continuation statement filed pursuant to this Agreement to be misleading
within the meaning of Section 9-402(7) of the UCC (or any other then
applicable provision of the UCC) unless RNB shall have delivered to TCC at
least 30 days prior written notice thereof and, no later than 30 days after
making such change, shall have taken all action necessary or advisable to
amend such financing statement or continuation statement so that it is not
misleading. RNB shall not change its chief executive office or change the
location of its principal records concerning the Receivables or the
Collections unless it has delivered to TCC at least 30 days prior written
notice of its intention to do so and has taken such action as is necessary
or advisable to cause the interest of TCC in the Receivables and other
Purchased Assets to continue to be perfected with the priority required by
this Agreement.
Section 5.2. TCC Covenant.
Servicing Fee. TCC covenants and agrees with RNB to pay RNB
from available amounts any portion of the Servicing Fee that is not paid to
RNB pursuant to Section 3.2 of the Pooling and Servicing Agreement. If RNB
is subsequently paid such Servicing Fee pursuant to the Pooling and
Servicing Agreement, then RNB shall promptly return such payments to TCC.
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.1. Reassignment of Ineligible Receivables. In the
event that (x) any representation or warranty under Section 4.2(a)(ii),
(iii), (iv), (vii), (viii) or (ix) is not true and correct in any material
respect as of the date specified therein with respect to any Receivable or
any related Account, and (y) the Receivable to which such untrue or
incorrect representation or warranty relates is given a value of zero for
purposes of determining the aggregate Principal Receivables under the terms
of the Pooling and Servicing Agreement, RNB shall pay to TCC an amount in
cash equal to the Purchase Price, adjusted for any Collections received,
paid for any such Ineligible Receivable by TCC to RNB. Such amount may be
offset against any amounts due from TCC to RNB with respect to the Purchase
Price for Receivables sold to TCC on such day; provided, however, that RNB
shall not be obligated to make any such cash payment until the Distribution
Date following a Monthly Period with respect to amounts owing for such
Monthly Period, which payment shall be made in accordance with Section 3.3.
The obligation of RNB set forth in this Section shall constitute the sole
remedy respecting any breach of the representations and warranties set
forth in the above-referenced Sections or failure to meet the conditions
set forth in the definition in the Pooling and Servicing Agreement of
Eligible Receivable with respect to such Receivable available to TCC and
TCC shall not be obligated to transfer any such Receivable to RNB.
Section 6.2. Reassignment of Certificateholders' Interest in
Trust Portfolio. In the event any representation or warranty set forth in
Section 4.1(a) or (c) or Section 4.2(a)(i), (v) or (vi) is not true and
correct in any material respect and as a result thereof TCC is required to
accept a reassignment of the Receivables transferred to TRC by TCC pursuant
to Section 6.2 of the TRC Purchase Agreement, RNB shall be obligated to
accept a reassignment of TCC's interest in such Receivables on the terms
set forth below.
RNB shall pay to TCC by depositing in the Collection Account in
same-day funds, not later than 10:00 A.M. New York City time, on the
Distribution Date following the Monthly Period in which such reassignment
obligation arises, in payment for such reassignment, an amount equal to the
Portfolio Reassignment Price.
Section 6.3 Conveyance of Reassigned Receivables. Upon the
request of RNB, TCC shall execute and deliver to RNB a reconveyance
substantially in such form and upon such terms as shall be acceptable to
RNB, pursuant to which TCC evidences the conveyance to RNB of all of TCC's
right, title, and interest in any Receivables reconveyed to RNB pursuant to
Section 6.1 and 6.2. TCC shall (and shall cause TRC and the Trustee to)
execute such other documents or instruments of conveyance or take such
other actions as RNB may reasonably require to effect any repurchase of
Receivables pursuant to this Article VI.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1. Conditions to TCC's Obligations Regarding Initial
Receivables. The obligations of TCC to purchase the Receivables in the
Initial Accounts on the Closing Date shall be subject to the satisfaction
of the following conditions:
(a) All representations and warranties of RNB contained in this
Agreement shall be true and correct in all material respects on the Closing
Date with the same effect as though such representations and warranties had
been made on such date;
(b) All information concerning the Initial Accounts provided to
TCC shall be true and correct in all material respects as of the Initial
Cut-Off Date;
(c) RNB shall have substantially performed all other
obligations required to be performed by the provisions of this Agreement;
(d) On or before the Closing Date, TCC and TRC shall have
entered into the TRC Purchase Agreement, TRC and the Trustee shall have
entered into the Pooling and Servicing Agreement, TRC, RNB and the Trustee
shall have entered into the Participation Supplement and the closing under
each such agreement shall take place simultaneously with the initial
closing hereunder; and
(e) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to TCC, and TCC shall have received from
RNB copies of all documents (including, without limitation, records of
corporate proceedings) relevant to the transactions herein contemplated as
TCC may reasonably have requested.
Section 7.2. Conditions to TCC's Obligations Regarding
Additional Receivables. The obligations of TCC to purchase any Receivables
created on or after the Closing Date, shall be subject to the satisfaction
of the following conditions:
(a) All representations and warranties of RNB contained in this
Agreement shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on the
date of such purchase;
(b) All information (concerning any Account to which such
Receivables relate) provided or to be provided to TCC shall be true and
correct in all material respects on the date of such purchase; and
(c) On and after the Automatic Addition Termination Date or any
Automatic Addition Suspension Date (and in such latter case, until a
Restart Date), RNB shall have indicated in its computer files, microfiche
list or printed list that such Receivables (created in respect of any
Account to which such Receivables relate) have been sold to TCC in
accordance with this Agreement and transferred to the Trust pursuant to the
Pooling and Servicing Agreement for the benefit of the Certificateholders.
Section 7.3. Conditions Precedent to Obligations of RNB. The
obligations of RNB to sell on any date Receivables shall be subject to the
satisfaction of the following conditions:
(a) All representations and warranties of TCC contained in this
Agreement shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on the
date of such sale;
(b) Payment or provision for payment of the Purchase Price in
accordance with the provision of Sections 3.1, 3.2 and 3.3 hereof shall
have been made;
(c) All corporate and legal proceedings and all instruments in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to RNB, and RNB shall have received from
TCC copies of all documents (including, without limitation, records of
corporate proceedings) relevant to the transactions herein contemplated as
RNB may reasonably have requested;
(d) TCC shall have recorded and filed, at its expense, with
respect to the Initial Accounts and Automatic Additional Accounts on or
prior to the Closing Date, with respect to Automatic Additional Accounts
created on and after a Restart Date, on or prior to such Restart Date, and
with respect to Supplemental Accounts on or prior to the applicable
Addition Date of Receivables in such Accounts, any UCC-1 or other financing
statement with respect to the Receivables then existing and thereafter
created for the transfer of accounts (as defined in Section 9-106 of the
UCC) meeting the requirements of applicable state law in such manner and in
such jurisdictions as would be necessary or advisable to perfect or
evidence the sale of the Receivables from RNB to TCC, and shall deliver a
file- stamped copy of such financing statements or other evidence of such
filings to RNB; and
(e) On the Closing Date, the Trust shall have issued a
Participation representing a 5% undivided interest in the Receivables, to
RNB.
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.1. Term. This Agreement shall commence as of the date
of execution and delivery hereof and shall continue until the termination
of the Trust as provided in Article XII of the Pooling and Servicing
Agreement.
Section 8.2. Purchase Termination. If RNB shall fail generally
to, or admit in writing its inability to, pay its debts as they become due;
or if a proceeding shall have been instituted in a court having
jurisdiction in the premises seeking a decree or order for relief in
respect of RNB in an involuntary case under any Debtor Relief Law, or for
the appointment of a receiver, conservator, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of RNB or for any
substantial part of RNB's property, or for the winding-up or liquidation of
RNB's affairs and, if instituted against RNB, any such proceeding shall
continue undismissed or unstayed and in effect, for a period of 60
consecutive days, or any of the actions sought in such proceeding shall
occur; or if RNB shall commence a voluntary case under any Debtor Relief
Law, or if RNB shall consent to the entry of an order for relief in an
involuntary case under any Debtor Relief Law, or consent to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator, conservator or other similar official of, or for,
any substantial part of its property, or any general assignment for the
benefit of its creditors; or RNB or any subsidiary of RNB shall have taken
any corporate action in furtherance of any of the foregoing actions (each
an "Insolvency Event"); then RNB shall immediately cease to transfer
Principal Receivables to TCC and shall promptly give notice to TCC and the
Trustee of such Insolvency Event. Notwithstanding any cessation of the
transfer to TCC of additional Principal Receivables, Principal Receivables
transferred to TCC prior to the occurrence of such Insolvency Event and
Collections in respect of such Principal Receivables and Finance Charge
Receivables whenever created, accrued in respect of such Principal
Receivables, shall continue to be property of TCC transferable by TCC to
TRC pursuant to the TRC Purchase Agreement and by TRC to the Trust pursuant
to the Pooling and Servicing Agreement.
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1. Amendment. This Agreement and any Conveyance
Papers and the rights and obligations of the parties hereunder may not be
changed orally, but only by an instrument in writing signed by TCC and RNB
in accordance with this section 9.1. This Agreement and any Conveyance
Papers may be amended from time to time by TCC and RNB (i) to cure any
ambiguity, (ii) to correct or supplement any provisions herein which may be
inconsistent with any other provisions herein or in any such other
Conveyance Papers, (iii) to add any other provisions with respect to
matters or questions arising under this Agreement or any Conveyance Papers
that shall not be inconsistent with the provisions of this Agreement or any
Conveyance Papers, (iv) to change or modify the Purchase Price, (v) to
change, modify, delete or add any other obligation of RNB or TCC and (vi)
to provide for the transfer by RNB or TCC of its interest in and to all or
part of the Accounts in accordance with the provisions of the Pooling and
Servicing Agreement (if such transfer is for less than all of the Accounts,
the respective rights, duties and obligations of TCC, RNB and the Servicer
will be determined at the time of such transfer); provided, however, that
no amendment pursuant to clause (v) of this Section 9.1 shall be effective
unless RNB and TCC have been notified in writing that the Rating Agency
Condition has been satisfied; provided, further, that such action shall not
(as evidenced by an Opinion of Counsel delivered to the Trustee) adversely
affect in any material respect the interests of the Trustee or the
Certificateholders, unless the Trustee shall consent thereto. Any
reconveyance executed in accordance with the provisions hereof shall not be
considered to be an amendment to this Agreement. A copy of any amendment to
this Agreement shall be sent to the Rating Agency.
SECTION 9.2. GOVERNING LAW; JURISDICTION. THIS AGREEMENT AND
THE CONVEYANCE PAPERS SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS. [Each of the parties hereto hereby
irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the courts of the State of Delaware and of the
federal courts sitting in the State of Delaware for any litigation arising
out of or relating to this Agreement and the transactions contemplated
hereby (and agrees not to commence any litigation relating thereto except
in such courts) and further agrees that service of any process, summons,
notice or document by prepaid certified mail with proof of mailing receipt
validated by the United States Postal Service to its respective address set
forth in Section 9.3 (or to the agent of such party appointed and
maintained in the State of Delaware as such party's agent for acceptance of
legal process) shall be effective service of process for any litigation
brought against it in any such court. Each of the parties hereto hereby
irrevocably and unconditionally waives any objection to the laying of venue
of any litigation arising out of this Agreement or the transactions
contemplated hereby in the courts of the State of Delaware or of the
federal courts sitting in the State of Delaware and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in
any such court that any such litigation brought in any such court has been
brought in an inconvenient forum.]
Section 9.3. Notices. (a) All demands, notices, instructions,
directions and communications (collectively, ("Notices") under this
Agreement shall be in writing and shall be deemed to have been duly given
if personally delivered at, mailed by registered mail, return receipt
requested, or sent by facsimile transmission to (i) in the case of TCC, to
Target Capital Corporation, 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000, Attention of Treasurer (facsimile no. (612) 370- 5508), (ii) in the
case of RNB, to Retailers National Bank, 0000 Xxxx 00xx Xxxxxx, Xxxxx
Xxxxx, Xxxxx Xxxxxx 00000, Attention: Vice President and Manager (facsimile
no. (000) 000-0000) and (iii) in the case of the Trustee, to Norwest Bank
Minnesota, National Association, Norwest Center, Sixth and Marquette,
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention of Xxxxxx Xxxxxx (facsimile
no. (000) 000-0000), (iv) in the case of Xxxxx'x, to 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention of ABS Xxxxxxxxxx Xxxxxxxxxx 0xx Xxxxx
(facsimile no. 212-553- 4600) and (v) in the case of Standard & Poor's, to
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Asset Backed Group
(facsimile no. 212-___________).
Section 9.4. Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement or any
Conveyance Paper shall for any reason whatsoever be held invalid, then such
covenants, agreements, provisions, or terms shall be deemed severable from
the remaining covenants, agreements, provisions, and terms of this
Agreement or any Conveyance Paper and shall in no way affect the validity
or enforceability of the other provisions of this Agreement or of any
Conveyance Paper.
Section 9.5. Assignment, Sale of Accounts. (a) Notwithstanding
anything to the contrary contained herein, except as set forth in Section
9.5(b) and other than TCC's assignment of its right, title, and interest
in, to, and under this Agreement to TRC as contemplated by the TRC Purchase
Agreement and Section 9.6 hereof and TRC's assignment of its right, title
and interest in, to, and under this Agreement to the Trustee for the
benefit of the Certificateholders as contemplated by the Pooling and
Servicing Agreement and Section 9.6 hereof, this Agreement and all other
Conveyance Papers may not be assigned by the parties hereto.
(b) Notwithstanding the provisions of Section 9.5(a) hereof and
of Section 8.2 of the Pooling and Servicing Agreement, RNB may assign,
convey and transfer all of its consumer open end credit card accounts and
the receivables arising thereunder, which may include the Accounts, and its
interest in any Participation Interests (collectively, the "Assigned
Assets"), together with all servicing functions under the Pooling and
Servicing Agreement and other obligations under this Agreement or relating
to the transactions contemplated hereby (collectively, the "Assumed
Obligations"), to another entity (the "Assuming Entity") which may be an
entity that is not affiliated with RNB, and RNB may assign, convey and
transfer the Assigned Assets and the Assumed Obligations to the Assuming
Entity, without the consent or approval of the Certificateholders, in each
case upon satisfaction of the following conditions:
(i) the Assuming Entity, RNB and the Trustee shall have entered
into an assumption agreement (the "Assumption Agreement") providing
for the Assuming Entity to assume the Assumed Obligations, including
the obligation under this Agreement to transfer the Receivables
arising under the Accounts to TCC, and RNB shall have delivered to
TCC and the Trustee an Officer's Certificate and an Opinion of
Counsel each stating that such assumption and transfer comply
with this Section, that such Assumption Agreement is a valid and
binding obligation of such Assuming Entity enforceable against such
Assuming Entity in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, receivership, conservatorship or other
similar laws affecting creditors' rights generally from time to time
in effect and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in
equity), and that all conditions precedent herein provided for
relating to such transaction have been complied with;
(ii) RNB or the Assuming Entity shall have delivered to the
Trustee copies of UCC-1 financing statements covering such Accounts
to perfect TCC's interest in the Receivables arising herein and any
Conveyance Papers or Supplemental Conveyance;
(iii) TCC shall have received written notice that the Rating
Agency Condition has been satisfied with respect to such transfer and
assumption and shall have delivered copies of each such written
notice to the Servicer and the Trustee;
(iv) TCC shall have received an opinion of Counsel with respect
to clauses (i) and (ii) above and as to certain other matters that
TCC may specify; and
(v) the Trustee shall have received a Tax Opinion.
Notwithstanding such assumption, RNB shall continue to be
liable for all representations and warranties and covenants made by it and
all obligations performed or to be performed by it in its capacity
hereunder prior to such transfer or as Servicer prior to such transfer.
Section 9.6. Acknowledgement and Agreement of RNB. By execution
below, RNB expressly acknowledges and agrees that all of TCC's right,
title, and interest in, to, and under this Agreement, including, without
limitation, all of TCC's right, title, and interest in and to the
Receivables purchased pursuant to this Agreement, will be assigned by TCC
to TRC and by TRC to the Trustee for the benefit of the Certificateholders,
and RNB consents to such assignment. Additionally, RNB agrees for the
benefit of the Trustee that any amounts payable by RNB to TCC hereunder
which are to be paid by TCC to TRC and by TRC to the Trustee for the
benefit of the Certificateholders shall be paid by RNB, on behalf of TCC,
directly to the Trustee. Any payment required to be made on or before a
specified date in same-day funds may be made on the prior business day in
next-day funds.
Section 9.7. Further Assurances. TCC and RNB agree to do and
perform, from time to time, any and all acts and to execute any and all
further instruments required or reasonably requested by the other party
more fully to effect the purposes of this Agreement and the Conveyance
Papers, including, without limitation, the execution of any UCC financing
statements or continuation statements or equivalent documents relating to
the Receivables for filing under the provisions of the UCC or other law of
any applicable jurisdiction.
Section 9.8. No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of TCC or RNB, any right,
remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exhaustive of any rights, remedies, powers and privileges provided by law.
Section 9.9. Counterparts. This Agreement and all Conveyance
Papers may be executed in two or more counterparts (and by different
parties on separate counterparts), each of which shall be an original, but
all of which together shall constitute one and the same instrument.
Section 9.10. Binding Third-Party Beneficiaries. This Agreement
and the Conveyance Papers will inure to the benefit of and be binding upon
the parties hereto and their respective successors and permitted assigns.
The parties hereto intend that the Trustee shall be a third-party
beneficiary of this Agreement.
Section 9.11. Merger and Integration. Except as specifically
stated otherwise herein, this Agreement and the Conveyance Papers set forth
the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by
this Agreement and the Conveyance Papers. This Agreement and the Conveyance
Papers may not be modified, amended, waived or supplemented except as
provided herein.
Section 9.12. Headings. The headings set forth herein are for
purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
Section 9.13. Schedules and Exhibits. The schedules and
exhibits attached hereto and referred to herein shall constitute a part of
this Agreement and are incorporated into this Agreement for all purposes.
Section 9.14. Survival of Representations and Warranties. All
representations, warranties and agreements contained in this Agreement or
contained in any Assignment, shall remain operative and in full force and
effect and shall survive conveyance of the Receivables by TRC to the
Trustee pursuant to the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, TCC and RNB have caused this Agreement to
be duly executed by their respective officers as of the day and year first
above written.
TARGET CAPITAL CORPORATION
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
RETAILERS NATIONAL BANK
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Treasurer
EXHIBIT A
FORM OF SUPPLEMENTAL CONVEYANCE
(As required by Section 2.2 of the Amended and
Restated Bank Receivables Purchase Agreement)
SUPPLEMENTAL CONVEYANCE NO. __________ dated as of
_____________, ______, by and between RETAILERS NATIONAL BANK, as seller
("RNB"), and TARGET CAPITAL CORPORATION, as purchaser ("TCC"), pursuant to
the Amended and Restated Bank Receivables Purchase Agreement referred to
below.
WITNESSETH:
WHEREAS, RNB and TCC are parties to an Amended and Restated
Receivables Purchase Agreement, dated as of April 28, 2000 (hereinafter as
such agreement may have been, or may from time to time be, amended,
supplemented or otherwise modified, the "Receivables Purchase Agreement");
WHEREAS, pursuant to the Receivables Purchase Agreement, RNB
wishes to designate Supplemental Accounts to be included as Accounts and
RNB wishes to convey the Receivables of such Supplemental Accounts, whether
now existing or hereafter created, to TCC pursuant to the Receivables
Purchase Agreement (as each such term is defined in the Receivables
Purchase Agreement); and
WHEREAS, TCC is willing to accept such designation and
conveyance subject to the terms and conditions hereof.
NOW, THEREFORE, RNB and TCC hereby agree as follows:
1. Defined Terms. Each capitalized term used herein shall have
the meanings specified in the Receivables Purchase Agreement unless
otherwise defined herein.
"Addition Date" shall mean, with respect to the
Supplemental Accounts designated hereby, __________, _____.
2. Designation of Supplemental Accounts. RNB delivers herewith
a computer file, microfiche list or printed list containing a true and
complete schedule identifying all such Supplemental Accounts and specifying
for each such Account, as of the Additional Cut-Off Date, its account
number, the aggregate amount outstanding in such Account and the aggregate
amount of Principal Receivables in such Account. Such computer file,
microfiche list or printed list shall be, as of the date of this
Supplemental Conveyance, incorporated into and made part of this
Supplemental Conveyance and is marked as Schedule I to this Supplemental
Conveyance.
3. Conveyance of Receivables.
(a) RNB does hereby sell, transfer, assign, set over and
otherwise convey to TCC (collectively, the "Conveyance"), without recourse,
all of its right, title and interest in, to and under the Receivables
generated by such Supplemental Accounts, now existing and hereafter
created, all Recoveries allocable to such Supplemental Accounts and all
monies due or to become due thereunder and all amounts received with
respect thereto and all proceeds (including, without limitation, "proceeds"
as defined in Article 9 of the UCC) thereof. The foregoing sale, transfer,
assignment, set-over and conveyance does not constitute and is not intended
to result in a creation or an assumption by TCC of any obligation of the
Servicer, RNB or any other Person in connection with the Accounts, the
Receivables or under any agreement or instrument relating thereto.
(b) In connection with the Conveyance, TCC agrees to
record and file, at its own expense, one or more UCC financing statements
(and continuation statements with respect to such financing statements when
applicable) with respect to the Receivables, now existing and hereafter
created, for the sale of accounts meeting the requirements of applicable
state law in such manner and in such jurisdictions as may be necessary or
advisable to perfect or evidence the sale and assignment of the Receivables
to TCC, and to deliver a file-stamped copy of such financing statement or
other evidence of such filing to RNB.
(c) In connection with such sale, RNB further agrees, at
its own expense, on or prior to the date of this Supplemental Conveyance,
to indicate in the appropriate computer files, microfiche list or other
records that all Receivables created in connection with the Supplemental
Accounts designated hereby have been conveyed to TCC pursuant to this
Supplemental Conveyance.
4. Acceptance by TCC. Subject to the satisfaction of the
conditions set forth in Section 6 of this Supplemental Conveyance, TCC
hereby acknowledges its acceptance of all right, title and interest to the
property, now existing and hereafter created, conveyed to TCC pursuant to
Section 3(a) of this Supplemental Conveyance, and declares that it shall
maintain such right, title and interest. TCC further acknowledges that,
prior to or simultaneously with the execution and delivery of this
Supplemental Conveyance, RNB delivered to TCC (or to the Trustee if TCC has
so directed) the computer file, microfiche list or printed list described
in Section 2 of this Supplemental Conveyance.
5. Representations and Warranties of RNB. RNB hereby represents
and warrants to TCC as of the date of this Supplemental Conveyance and as
of the Addition Date that:
(a) Legal, Valid and Binding Obligation. This
Supplemental Conveyance constitutes a legal, valid and binding obligation
of RNB enforceable against RNB in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally from time to time in effect and except as such
enforceability may be limited by general principles of equity;
(b) Eligibility of Accounts. Each Supplemental Account
designated hereby is an Eligible Account;
(c) Selection Procedures. No selection procedure was
utilized by RNB which would result in a selection of Supplemental Accounts
that would have a result that would be materially less favorable to the
interests of TCC or the Investor Certificateholders of any Series as of the
Addition Date than a random selection;
(d) Insolvency. RNB is not insolvent and, after giving effect
to the conveyance set forth in Section 3 of this Supplemental Conveyance,
will not be insolvent;
(e) Sale of Receivables. This Supplemental Conveyance
constitutes a valid sale, transfer and assignment to TCC of all right,
title and interest of RNB in the Receivables and other Purchased Assets now
existing or hereafter created, all monies due or to become due and all
amounts received with respect thereto and the "Proceeds" (as defined in the
UCC) thereof, relating thereto;
(f) No Conflict. The execution and delivery of this
Supplemental Conveyance, the performance of the transactions contemplated
by this Supplemental Conveyance and the fulfillment of the terms hereof,
will not conflict with, result in any breach of any of the material terms
and provisions of, or constitute (with or without notice or lapse of time
or both) a material default under, any indenture, contract, agreement,
mortgage, deed of trust or other instrument to which RNB is a party or by
which it or its properties are bound;
(g) No Violation. The execution and delivery of this
Supplemental Conveyance by RNB, the performance of the transactions
contemplated by this Supplemental Conveyance and the fulfillment of the
terms hereof applicable to RNB will not conflict with or violate any
Requirements of Law applicable to RNB;
(h) No Proceedings. There are no proceedings or
investigations, pending or, to the best knowledge of RNB, threatened
against RNB before any court, regulatory body, administrative agency or
other tribunal or governmental instrumentality (i) asserting the invalidity
of the Receivables Purchase Agreement or this Supplemental Conveyance, (ii)
seeking to prevent the consummation of any of the transactions contemplated
by the Receivables Purchase Agreement or this Supplemental Conveyance,
(iii) seeking any determination or ruling that, in the reasonable judgment
of RNB, would materially and adversely affect the performance of RNB of its
obligations under the Receivables Purchase Agreement or this Supplemental
Conveyance or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Supplemental Conveyance; and
(i) All Consents. All authorizations, consents, orders or
approvals of any court or other governmental authority required to be
obtained by RNB in connection with the execution and delivery of this
Supplemental Conveyance by RNB and the performance of the transactions
contemplated by this Supplemental Conveyance by RNB, have been obtained.
6. Conditions Precedent. The acceptance of TCC set forth in
Section 4 of this Supplemental Conveyance is subject to the satisfaction,
on or prior to the Addition Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by RNB in Section 5 of this
Supplemental Conveyance shall be true and correct in all material respects
as of the date of this Supplemental Conveyance and as of the Addition Date;
(b) Officer's Certificate. RNB shall have delivered to
TCC an Officer's Certificate confirming that (i) the Supplemental Accounts
shall be Eligible Accounts [or specify which, if any, of such Accounts are
not Eligible Accounts] and (ii) (A) no selection procedure was utilized by
RNB or TCC which would result in a selection of Supplemental Accounts that
would have a result that would be materially less favorable to the
interests of the Investor Certificateholders of any Series as of the
Addition Date than a random selection; and (B) the list of Supplemental
Accounts, as of the Additional Cut-Off Date, is a true and complete
schedule identifying all such Supplemental Accounts and specifies for each
such Account, as of the Additional Cut-Off Date, its account number, the
aggregate amount outstanding in such Account and the aggregate amount of
Principal Receivables in such Account; and
(c) Additional Information. RNB shall have delivered to
TCC such information as was reasonably requested by TCC to satisfy itself
as to the accuracy of the representation and warranty set forth in Section
5(d) of this Supplemental Conveyance.
7. Ratification of the Receivables Purchase Agreement. The
Receivables Purchase Agreement is hereby ratified, and all references to
the "Receivables Purchase Agreement," to "this Agreement" and "herein"
shall be deemed from and after the Addition Date to be a reference to the
Receivables Purchase Agreement as supplemented by this Supplemental
Conveyance. Except as expressly amended hereby, all the representations,
warranties, terms, covenants and conditions of the Receivables Purchase
Agreement shall remain unamended and shall continue to be, and shall,
remain, in full force and effect in accordance with its terms and except as
expressly provided herein shall not constitute or be deemed to constitute a
waiver of compliance with or consent to non-compliance with any term or
provision of the Receivables Purchase Agreement.
8. Counterparts. This Supplemental Conveyance may be executed
in any number of counterparts, all of which taken together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the undersigned have caused this
Supplemental Conveyance to be duly executed and delivered by their
respective duly authorized officers on the day and the year first above
written.
TARGET CAPITAL CORPORATION
By_________________________________________
Name:
Title:
RETAILERS NATIONAL BANK
By_________________________________________
Name:
Title:
Schedule I to
Supplemental
Conveyance
Supplemental Accounts
Schedule I
LIST OF ACCOUNTS
DEEMED INCORPORATED BY REFERENCE
