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TARGET CAPITAL CORPORATION,
Seller
and
TARGET RECEIVABLES CORPORATION,
Purchaser
AMENDED AND RESTATED
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................... 7
ARTICLE II
PURCHASE AND CONVEYANCE OF RECEIVABLES
Section 2.1. Purchase......................................... 9
Section 2.2. Addition of Additional Accounts................ 11
Section 2.3. Sale of Receivables to TCC..................... 13
ARTICLE III
CONSIDERATION AND PAYMENT
Section 3.1. Purchase Price................................. 14
Section 3.2. Adjustments to Purchase Price.................. 15
Section 3.3. Settlement and Ongoing Payment of
Purchase Price............................... 15
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of TCC
Relating to TCC............................... 17
Section 4.2. Representations and Warranties of TCC
Relating to the Agreement and the
Receivables....................................19
Section 4.3. Representations and Warranties of TRC........... 22
ARTICLE V
COVENANTS
Section 5.1. TCC Covenants....................................24
Section 5.2. Covenants of TCC with Respect to the Bank
Purchase Agreement.............................26
ARTICLE VI
REPURCHASE OBLIGATION
Section 6.1. Reassignment of Ineligible
Receivables....................................28
Section 6.2. Reassignment of Certificateholders'
Interest in Trust Portfolio................... 28
Section 6.3. Conveyance of Reassigned Receivables.............29
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1. Conditions to TRC's Obligations Regarding
Initial Receivables........................... 30
Section 7.2. Conditions to TRC's Obligations Regarding
Additional Receivables........................ 31
Section 7.3. Conditions Precedent to Obligations
of TCC........................................ 32
ARTICLE VIII
TERM AND PURCHASE TERMINATION
Section 8.1. Term.............................................33
Section 8.2. Purchase Termination.............................33
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.1. Amendment....................................... 34
Section 9.2. Governing Law; Jurisdiction..................... 34
Section 9.3. Notices..........................................35
Section 9.4. Severability of Provisions...................... 36
Section 9.5. Assignment, Sale of Accounts.................... 36
Section 9.6. Acknowledgement and Agreement of TCC............ 37
Section 9.7. Further Assurances...............................38
Section 9.8. No Waiver; Cumulative Remedies.................. 38
Section 9.9. Counterparts.................................... 38
Section 9.10. Binding Third-Party Beneficiaries............... 38
Section 9.11. Merger and Integration.......................... 39
Section 9.12. Headings........................................ 39
Section 9.13. Schedules and Exhibits.......................... 39
Section 9.14. Survival of Representations and
Warranties.................................... 39
EXHIBIT
Exhibit A - Form of Supplemental Conveyance
Exhibit B - Form of Revolving Note
SCHEDULE
Schedule 1 - List of Accounts [Deemed Incorporated by
Reference]
AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT, dated as
of April 28, 2000, by and between TARGET CAPITAL CORPORATION, a Minnesota
corporation ("TCC"), and TARGET RECEIVABLES CORPORATION, a Minnesota
corporation ("TRC").
W I T N E S S E T H:
WHEREAS, TCC and TRC have heretofore executed and delivered a
Receivables Purchase Agreement, dated as of September 13, 1995 (as amended,
supplemented or otherwise modified, the "Original Receivables Purchase
Agreement"), by and between Target Capital Corporation (formerly known as
Xxxxxx Xxxxxx Capital Corporation), as the Seller, and Target Receivables
Corporation (formerly known as Xxxxxx Xxxxxx Receivables Corporation), as
the Purchaser;
WHEREAS, the Seller, formerly known as Xxxxxx Xxxxxx Capital
Corporation, has been renamed Target Capital Corporation and desires to
amend and restate the Original Receivables Purchase Agreement to read in
its entirety as set forth below;
WHEREAS, the Purchaser, formerly known as Xxxxxx Xxxxxx
Receivables Corporation, has been renamed Target Receivables Corporation
and desires to amend and restate the Original Receivables Purchase
Agreement to read in its entirety as set forth below;
WHEREAS, TRC desires to purchase, from time to time, certain
Receivables (hereinafter defined) arising in certain Accounts (hereinafter
defined) of TCC;
WHEREAS, TCC desires to sell from time to time and assign such
Receivables to TRC upon the terms and conditions hereinafter set forth;
WHEREAS, it is contemplated that the Receivables purchased
hereunder will be transferred by TRC to the Trust (hereinafter defined) in
connection with the issuance of certain Certificates (hereinafter defined);
WHEREAS, TCC agrees that all covenants and agreements made by
TCC 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 Receivables Purchase
Agreement provides that TCC and TRC, without the consent of any of the
Certificateholders, may amend the Original 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
Receivables Purchase Agreement, TCC and TRC hereby agree that effective on
and as of the date hereof, the Original 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
TCC 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 TRC by TCC
(and, in turn 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 TCC to TRC 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 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.
"Bank Purchase Agreement" shall mean the Amended and Restated
Bank Receivables Purchase Agreement, dated as of April 28, 2000, by and
between RNB and TCC.
"Capital Ratio" shall mean, as of any date, the ratio
(expressed as a percentage) computed by dividing (a) shareholder's equity
in TRC by (b) total assets (as shown on TRC's balance sheet prepared in
accordance with GAAP) plus the aggregate Invested Amount of Certificates
which have not been retained by TRC as of such 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.
"Minimum Capital Ratio" shall mean 5.50%, which percentage may
be adjusted from time to time at the option of TRC if the Rating Agency
Condition is satisfied with respect to Standard & Poor's.
"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.
"Subordinated Note" shall mean the subordinated revolving
promissory note dated September 13, 1995 by Xxxxxx Xxxxxx Receivables
Corporation to Xxxxxx Xxxxxx Capital Corporation or any successor
subordinated revolving promissory note from TRC to TCC, substantially in
the form of Exhibit B hereto.
"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.
"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, TCC
does hereby sell, transfer, assign, set over and otherwise convey to TRC
(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, (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 and (v) the Bank Purchase Agreement (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 TCC to TRC on and after the Closing Date, (ii) that such
financing statements shall name TCC, as seller, and TRC, 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 TRC (or to the Trustee,
if TRC so directs) as soon as is practicable after filing.
(c) In connection with such Conveyance, TCC 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 Receivables purchased or to be purchased by it from RNB pursuant to
the Bank Purchase Agreement have been (a) sold to TRC pursuant to this
Agreement and (b) 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 TRC on
or prior to 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 TRC (or to the Trustee, if so directed by
TRC) and marked as proprietary and confidential, and are hereby
incorporated into and made a part of this Agreement. TCC 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 TCC starts including Automatic Additional
Accounts as Accounts or (z) TCC shall have delivered to TRC 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 TRC 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 TCC to TRC
as provided in this Section 2.1 be, and be construed as, an absolute sale,
without recourse, of the Receivables by TCC to TRC. Furthermore, it is not
intended that such conveyance be deemed a pledge of the Receivables and the
other Purchased Assets by TCC to TRC to secure a debt or other obligation
of TCC. 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 TCC hereby grants
to TRC a "security interest" within the meaning of Article 9 of the UCC in
all of TCC'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 TRC upon purchase
by TCC. 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." TCC 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 TCC to TRC (the "Restart Date"), by delivering to
TRC 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, TCC and TRC 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 an
Automatic Addition Suspension Date.
(b) If, from time to time, TRC becomes obligated to designate
supplemental accounts or Participation Interests pursuant to Section 2.9(a)
of the Pooling and Servicing Agreement, then TRC shall give TCC written
notice thereof on or before the eighth Business Day (the "Addition Notice
Date") prior to the Addition Date therefor, and TCC 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 TRC will be in compliance
with the requirements of Section 2.9 of the Pooling and Servicing
Agreement; provided, however, that the failure of TCC to transfer
Receivables to TRC 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 TCC and TRC. In either event, TCC or its
designee shall have sole responsibility for selecting such Supplemental
Accounts or Participation Interests. In the case of Supplemental Accounts,
TCC shall on or prior to the Addition Date therefor execute and deliver to
TRC a written assignment from TCC to TRC in substantially the form of
Exhibit A (the "Supplemental Conveyance"). Upon such designation, such
Supplemental Accounts shall be deemed to be Accounts hereunder.
Section 2.3. Sale of Receivables to TCC. In the event any
Receivables are sold by TRC to TCC, the purchase price for such Receivables
shall equal the greater of (i) the fair market value (as of the date of the
sale) of such Receivables and (ii) the amount of the Principal Receivables
to be sold.
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 TRC 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. The Purchase Price for the Receivables
(including Receivables in Additional Accounts) to be conveyed to TRC under
this Agreement that are created on any Business Day after the Closing Date
shall be payable on the Distribution Date following the Monthly Period
during which such Receivables are conveyed by TCC to TRC in an amount equal
to 100% of the 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 TCC and TRC 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 TRC with respect to the
Receivables on the Closing Date and with respect to each Receivable created
thereafter shall be paid (i) in cash, (ii) with the consent of TRC, by
means of capital contributed by TCC to TRC in the form of a contribution of
the Receivables, (iii) with the consent of TCC, by issuance to TCC of a
Subordinated Note or by increase in the amount outstanding thereunder, or
(iv) any combination of the foregoing, in each case in accordance with
Section 3.3.
(c) To the extent that TRC shall not have paid before, or shall
not have available to it, cash in U.S. dollars in same day funds sufficient
to pay (or cause to be paid) to TCC the Purchase Price for Receivables that
have been newly created during a Monthly Period, the remainder of the
Purchase Price shall be paid on each Distribution Date by increasing the
principal amount of the Subordinated Note by an amount equal to such
insufficiency; provided, however, that to the extent that any such increase
in the principal amount of the Subordinated Note would cause the Capital
Ratio as of the end of the preceding Monthly Period to be less than the
Minimum Capital Ratio as of the end of the preceding Monthly Period,
Receivables having an outstanding balance of Principal Receivables
sufficient to avoid the Capital Ratio being less than the Minimum Capital
Ratio shall be deemed contributed to the capital of TRC by TCC; provided,
further, that the portion of the Purchase Price paid on such Distribution
Date with a Subordinated Note as of the end of the preceding Monthly Period
shall not cause (a) the sum of (i) the principal amount of the Subordinated
Note and (ii) the outstanding principal amount of all certificates issued
by the Trust that are or may be classified as debt for federal income tax
purposes, net of amounts in the principal funding accounts for all Series
of certificates, to exceed (b) 80% of (x) the aggregate amount of Principal
Receivables and amounts on deposit in the Special Funding Account minus (y)
the principal amount of any Supplemental Certificate, Participation
Interest and any other interest in the Transferor's Interest not held by
the Transferor.
Section 3.2. Adjustments to Purchase Price. The Purchase Price
with respect to any Receivable previously sold to TRC by TCC which has
since been reduced by TCC 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 during any Monthly Period shall be reduced on the
following Determination Date by the amount of such adjustment (a "Credit
Adjustment").
Section 3.3. Settlement and Ongoing Payment of Purchase Price.
On each Distribution Date under the Pooling and Servicing Agreement, TCC
shall deliver a settlement statement (the "Settlement Statement") to TRC,
showing the aggregate Purchase Price of Receivables conveyed to TRC during
the prior Monthly Period, the portion thereof paid in cash, the portion
represented by an increase in the Subordinated Note and the portion
represented by a capital contribution, and the amount which remains unpaid
as Credit Adjustments made with respect to such prior Monthly Period
pursuant to Section 3.2 hereof and any adjustment to the Purchase Price of
Receivables with respect to such Monthly Period pursuant to Section 6.1
hereof. Any cash balance due from TRC to TCC shall be paid in cash in
immediately available funds to TCC or TCC shall convey such amount as a
capital contribution to TRC or the outstanding balance of the Subordinated
Note shall be increased to reflect such unpaid balance or a combination of
the foregoing shall occur, and any balance due from TCC to TRC shall be
paid in immediately available funds to TRC. To the extent that TCC has
received an amount greater than the Purchase Price of such Receivables, TCC
shall first apply such amount to the payment of the unpaid principal of the
Subordinated Note, if any. If, after giving effect to any such payment in
respect of the Subordinated Note, TCC has received an amount greater than
the Purchase Price, TCC shall retain such amounts and, at the option of TRC
(x) issue its note to TRC with terms substantially similar to the terms of
the Subordinated Note or (y) subject to applicable legal restrictions and
the Minimum Capital Ratio, elect to treat such amounts as a dividend or
return of capital to TCC.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of TCC Relating to
TCC. TCC hereby represents and warrants to, and agrees with, TRC as of the
Closing Date and on each Addition Date, 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 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. TCC 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 have a material adverse effect on the interests of TRC
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 TCC.
(d) No Conflict. The execution and delivery of this Agreement
and the Conveyance Papers by TCC, 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 TCC 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 TCC 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 TCC and the fulfillment by TCC
of the terms hereof and thereof will not conflict with or violate any
Requirements of Law applicable to TCC.
(f) 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, (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
TCC 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 TCC have been duly obtained, effected or given and are in full
force and effect.
(h) Insolvency. TCC is not insolvent and no Insolvency Event
with respect to TCC has occurred, and the transfer of the Receivables by
TCC to TRC 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 TRC.
Upon discovery by TCC or TRC 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. TCC agrees to cooperate with TRC and the Trustee in
attempting to cure any such breach.
Section 4.2. Representations and Warranties of TCC Relating to
the Agreement and the Receivables.
(a) Representations and Warranties. TCC hereby represents and
warrants to TRC 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 TCC, each constitute a valid and binding obligation of TCC
enforceable against TCC 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) TCC is the legal and beneficial owner of all right, title
and interest in and to each Receivable, TCC has the full right, power
and authority to transfer the Receivables pursuant to this Agreement;
and each Receivable conveyed to TRC by TCC has been conveyed to TRC
free and clear of any Lien of any Person claiming through or under
TCC 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 TCC;
(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
TCC in connection with the conveyance of such Receivable to TRC 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 TCC, constitutes a valid absolute sale and assignment to
TRC of all right, title and interest of TCC 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, TRC 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 TCC
nor any Person claiming through or under TCC 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 TCC 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 TCC 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 TRC. Upon discovery by either TCC or TRC 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. TCC hereby acknowledges that TRC intends to rely on the
representations hereunder in connection with representations made by TRC to
secured parties, assignees or subsequent transferees including but not
limited to transfers made by TRC to the Trust pursuant to the Pooling and
Servicing Agreement. TCC agrees to cooperate with TRC and the Trustee in
attempting to cure any such breach.
Section 4.3. Representations and Warranties of TRC. As of the
Closing Date, TRC hereby represents and warrants to, and agrees with, TCC
that:
(a) Organization and Good Standing. TRC 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 TRC by all necessary corporate action on the part
of TRC.
(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
TRC 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 TRC and the fulfillment of the
terms contemplated herein and therein applicable to TRC will not conflict
with or violate any Requirements of Law applicable to TRC.
(e) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of TRC, threatened against TRC, 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 TRC, would materially and adversely affect the
performance by TRC 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 TRC in connection
with the execution and delivery by TRC 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 TRC 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 TRC and termination of
the rights and obligations of TRC and TCC under this Agreement. Upon
discovery by TRC or TCC 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. TCC Covenants. TCC hereby covenants and agrees
with TRC as follows:
(a) Receivables not to be Evidenced by Promissory Notes. Except
in connection with the enforcement or collection of an Account, TCC 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, TCC 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 TCC will immediately notify TRC of the existence
of any Lien on any Receivable; and TCC shall defend the right, title and
interest of TRC in, to and under the Receivables, whether now existing or
hereafter created, against all claims of third parties claiming through or
under TCC; provided, however, that nothing in this Section 5.1(b) shall
prevent or be deemed to prohibit TCC 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) TCC'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, TCC 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 TCC receives
Collections or Recoveries, TCC agrees to pay to TRC (or to the Servicer if
TRC 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 TCC.
(e) Notice of Liens. TCC shall notify TRC 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) Documentation of Transfer. TCC shall cause to be executed,
delivered and/or filed 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.
(g) Approval of Official Records. The execution, delivery and
performance of TCC's obligations under this Agreement, and the transactions
contemplated hereby, have been duly approved by TCC's Board of Directors.
(h) Sale. TCC 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.
(i) Continuous Perfection. TCC 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 TCC shall have delivered to TRC 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. TCC 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 TRC 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 TRC in the Receivables and
other Purchased Assets to continue to be perfected with the priority
required by this Agreement.
Section 5.2. Covenants of TCC with Respect to the Bank Purchase
Agreement. TCC, in its capacity as purchaser of the Receivables from RNB
pursuant to the Bank Purchase Agreement, hereby covenants that TCC will at
all times enforce the covenants and agreements of RNB in the Bank Purchase
Agreement, including, without limitation, covenants to the effect set forth
below.
(a) 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.
(b) 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.
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, TCC shall pay to TRC an amount in
cash equal to the Purchase Price, adjusted for any Collections received,
paid for any such Ineligible Receivable by TRC to TCC. Such amount may be
offset against any amounts due from TRC to TCC with respect to the Purchase
Price for Receivables sold to TRC on such day; provided, however, that TCC
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 TCC 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 TRC and
TRC shall not be obligated to transfer any such Receivable to TCC.
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 TRC is required to
accept a reassignment of the Receivables transferred to the Trust by TRC
pursuant to Section 2.6 of the Pooling and Servicing Agreement, TCC shall
be obligated to accept a reassignment of TRC's interest in such Receivables
on the terms set forth below.
TCC shall pay to TRC 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 TCC, TRC shall execute and deliver to TCC a reconveyance
substantially in such form and upon such terms as shall be acceptable to
TCC, pursuant to which TRC evidences the conveyance to TCC of all of TRC's
right, title, and interest in any Receivables reconveyed to TCC pursuant to
Sections 6.1 and 6.2. TRC shall (and shall cause the Trustee to) execute
such other documents or instruments of conveyance or take such other
actions as TCC may reasonably require to effect any repurchase of
Receivables pursuant to this Article VI.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.1. Conditions to TRC's Obligations Regarding Initial
Receivables. The obligations of TRC 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 TCC 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
TRC shall be true and correct in all material respects as of the Initial
Cut-Off Date;
(c) TCC shall have substantially performed all other
obligations required to be performed by the provisions of this Agreement;
(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 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 TCC to TRC, and
shall deliver a file-stamped copy of such financing statements or other
evidence of such filings to TRC;
(e) On or before the Closing Date, 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
(f) 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 TRC, and TRC shall have received from
TCC copies of all documents (including, without limitation, records of
corporate proceedings) relevant to the transactions herein contemplated as
TRC may reasonably have requested.
Section 7.2. Conditions to TRC's Obligations Regarding
Additional Receivables. The obligations of TRC 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 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 purchase;
(b) All information (concerning any Account to which such
Receivables relate) provided or to be provided to TRC shall be true and
correct in all material respects on the date of such purchase;
(c) On and after the Automatic Addition Termination Date or any
Automatic Addition Suspension Date (and in such latter case, until a
Restart Date), TCC 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 TRC in
accordance with this Agreement and transferred to the Trust pursuant to the
Pooling and Servicing Agreement for the benefit of the Certificateholders;
and
(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 such Receivables in any Accounts in connection
with 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 may be necessary or advisable to perfect or evidence the
sale of such Receivables from TCC to TRC, and shall deliver a file-stamped
copy of such financing statements or other evidence of such filings to TRC.
Section 7.3. Conditions Precedent to Obligations of TCC. The
obligations of TCC to sell on any date Receivables shall be subject to the
satisfaction of the following conditions:
(a) All representations and warranties of TRC 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; and
(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 TCC, and TCC shall have received from
TRC copies of all documents (including, without limitation, records of
corporate proceedings) relevant to the transactions herein contemplated as
TCC may reasonably have requested.
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 TCC 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 TCC in an involuntary case under any Debtor Relief Law, or for
the appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator, conservator or other similar official of TCC or for any
substantial part of TCC's property, or for the winding-up or liquidation of
TCC's affairs and, if instituted against TCC, 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 TCC shall commence a voluntary case under any Debtor Relief
Law, or if TCC 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 TCC or any subsidiary of TCC shall have taken
any corporate action in furtherance of any of the foregoing actions (each
an "Insolvency Event"); then TCC shall immediately cease to transfer
Principal Receivables to TRC and shall promptly give notice to TRC and the
Trustee of such Insolvency Event. Notwithstanding any cessation of the
transfer to TRC of additional Principal Receivables, Principal Receivables
transferred to TRC 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 TRC transferable 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 TRC and TCC
in accordance with this section 9.1. This Agreement and any Conveyance
Papers may be amended from time to time by TRC and TCC (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 TCC or TRC and (vi)
to provide for the transfer by TCC or TRC 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 TRC, TCC 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 TCC and TRC 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 TRC, to
Target Receivables Corporation, 80 South Eighth Street, 14th Floor, Suite
1401, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention of Treasurer (facsimile no.
(000) 000-0000), (ii) in the case of TCC, to Target Capital Corporation,
000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention of Treasurer
(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. (612) 667- 9825), (iv) in the case of Xxxxx'x, to 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of ABS Monitoring Department
4th Floor (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 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,
TCC may assign, convey and transfer its interest in the receivables arising
under the consumer open end card accounts owned by RNB, which may include
the Accounts, and its interest in any Participation Interests
(collectively, the "Assigned Assets"), together with 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 TCC, and TCC
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, TCC 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 TRC, and TCC shall have delivered to
TRC 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) TCC or the Assuming Entity shall have delivered to the
Trustee copies of UCC-1 financing statements covering such Accounts
to perfect TRC's interest in the Receivables arising herein and any
Conveyance Papers or Supplemental Conveyance;
(iii) TRC 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) TRC shall have received an opinion of Counsel with respect
to clauses (i) and (ii) above and as to certain other matters that
TRC may specify; and
(v) the Trustee shall have received a Tax Opinion.
Notwithstanding such assumption, TCC 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.
Section 9.6. Acknowledgement and Agreement of TCC. By execution
below, TCC expressly acknowledges and agrees that all of TRC's right,
title, and interest in, to, and under this Agreement, including, without
limitation, all of TRC's right, title, and interest in and to the
Receivables purchased pursuant to this Agreement, will be assigned by TRC
to the Trustee for the benefit of the Certificateholders, and TCC consents
to such assignment. Additionally, TCC agrees for the benefit of the Trustee
that any amounts payable by TCC to TRC hereunder which are to be paid by
TRC to the Trustee for the benefit of the Certificateholders shall be paid
by TCC, on behalf of TRC, 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. TRC and TCC 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 TRC or TCC, 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, TRC and TCC have caused this Agreement to
be duly executed by their respective officers as of the day and year first
above written.
TARGET RECEIVABLES CORPORATION
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and
Treasurer
TARGET CAPITAL CORPORATION
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Treasurer
EXHIBIT A
FORM OF SUPPLEMENTAL CONVEYANCE
(As required by Section 2.2 of the Amended
and Restated Receivables Purchase Agreement)
SUPPLEMENTAL CONVEYANCE NO. ______ dated as of
_________________, by and between TARGET CAPITAL CORPORATION, as seller
("TCC"), and TARGET RECEIVABLES CORPORATION, as purchaser ("TRC"), pursuant
to the Receivables Purchase Agreement referred to below.
WITNESSETH:
WHEREAS, TCC and TRC 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, TCC
wishes to designate Supplemental Accounts to be included as Accounts and
TCC wishes to convey the Receivables of such Supplemental Accounts, whether
now existing or hereafter created, to TRC pursuant to the Receivables
Purchase Agreement (as each such term is defined in the Receivables
Purchase Agreement); and
WHEREAS, TRC is willing to accept such designation and
conveyance subject to the terms and conditions hereof.
NOW, THEREFORE, TCC and TRC 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. TCC 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) TCC does hereby sell, transfer, assign, set over and
otherwise convey to TRC (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 TRC of any obligation of the
Servicer, TCC 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 TRC, and to deliver a file-stamped copy of such financing statement or
other evidence of such filing to TRC.
(c) In connection with such sale, TCC 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 TRC pursuant to this
Supplemental Conveyance.
4. Acceptance by TRC. Subject to the satisfaction of the
conditions set forth in Section 6 of this Supplemental Conveyance, TRC
hereby acknowledges its acceptance of all right, title and interest to the
property, now existing and hereafter created, conveyed to TRC pursuant to
Section 3(a) of this Supplemental Conveyance, and declares that it shall
maintain such right, title and interest. TRC further acknowledges that,
prior to or simultaneously with the execution and delivery of this
Supplemental Conveyance, TCC delivered to TRC (or to the Trustee if TRC has
so directed) the computer file, microfiche list or printed list described
in Section 2 of this Supplemental Conveyance.
5. Representations and Warranties of TCC. TCC hereby represents
and warrants to TRC 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 TCC enforceable against TCC 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 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 TRC or the Investor Certificateholders of any Series as of the
Addition Date than a random selection;
(d) Insolvency. TCC 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 TRC of all right,
title and interest of TCC 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 TCC is a party or by
which it or its properties are bound;
(g) No Violation. The execution and delivery of this
Supplemental Conveyance by TCC, the performance of the transactions
contemplated by this Supplemental Conveyance and the fulfillment of the
terms hereof applicable to TCC will not conflict with or violate any
Requirements of Law applicable to TCC;
(h) 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 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 TCC, would materially and adversely affect the performance of TCC 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 TCC in connection with the execution and delivery of this
Supplemental Conveyance by TCC and the performance of the transactions
contemplated by this Supplemental Conveyance by TCC, have been obtained.
6. Conditions Precedent. The acceptance of TRC 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 TCC 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. TCC shall have delivered to
TRC 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
TCC or TRC 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. TCC shall have delivered to
TRC such information as was reasonably requested by TRC 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 RECEIVABLES
CORPORATION
By_____________________________________________
Name:
Title:
TARGET CAPITAL CORPORATION
By_____________________________________________
Name:
Title:
Schedule I to
Supplemental
Conveyance
Supplemental Accounts
EXHIBIT B
FORM OF REVOLVING NOTE
REVOLVING NOTE
This Revolving Note, dated as of ____________, ____, by TARGET
RECEIVABLES CORPORATION (formerly known as Xxxxxx Xxxxxx Receivables
Corporation), a Minnesota corporation (the "Borrower") to TARGET CAPITAL
CORPORATION (formerly known as Xxxxxx Xxxxxx Capital Corporation), a
Minnesota corporation (the "Lender").
The Lender and the Borrower have entered into an Amended and Restated
Receivables Purchase Agreement (the "Receivables Purchase Agreement") dated
as of April 28, 2000 providing for the purchase from time to time by the
Borrower of certain receivables generated from time to time in a portfolio
of consumer open end credit card accounts (the "Receivables"). Except as
otherwise expressly provided herein or unless the context otherwise
requires, capitalized terms not otherwise defined herein shall have the
meanings assigned to such terms in the Receivables Purchase Agreement.
1. The Note. For value received, the Borrower hereby promises
to pay to the order of the Lender at its offices at 000 Xxxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, the principal amount of $________________
(the "Initial Loan") or so much of the aggregate principal amount of all
Loans (as hereinafter defined) made by the Lender to the Borrower under the
terms of this Note as remains unpaid, as shown in the schedule attached
hereto and any continuations thereof, on the day which is one year and a
day after the payment in full of the Transferor Amount and all Invested
Amounts of each Series issued pursuant to the Pooling and Servicing
Agreement (the "Maturity Date"). The Borrower shall pay interest on the
unpaid principal amount of the Loans as provided herein.
2. The Loans. (a) From time to time between the date of this
Note and the Maturity Date, and subject to the restrictions on lending
under this Note contained in the Receivables Purchase Agreement, the Lender
may lend to the Borrower additional sums (each a "Loan" and, together with
the Initial Loan, the "Loans"), as provided herein.
(b) The obligation of the Borrower to repay the aggregate
unpaid principal amount of the Loans outstanding shall be evidenced by this
Note and the schedule attached hereto. The Lender is hereby authorized to
endorse on the schedule or on a continuation of such schedule, appropriate
notations regarding each Loan evidenced by this Note; provided, however,
that the failure to make, or error in making, any notation shall not limit
or otherwise affect the obligation of the Borrower hereunder.
(c) When the Borrower requests a Loan in connection with
the acquisition of any Receivables, the Borrower shall notify the Lender by
telephone specifying the amount and the date on which such Loan is
requested. Unless otherwise specified, the maturity of each such Loan shall
be the Maturity Date.
(d) The Lender agrees that on each Distribution Date, the
Lender shall determine whether the Capital Ratio as of the end of the
preceding Monthly Period equaled or exceeded the Minimum Capital Ratio. If,
as of any such date, the Capital Ratio was less than the Minimum Capital
Ratio, from and after the date of such determination the Lender shall not
increase the principal amount of this Revolving Note until the Capital
Ratio is at least equal to the Minimum Capital Ratio.
(e) The Lender agrees that the portion of the Purchase
Price paid with this Revolving Note shall not cause (a) the sum of (i) the
principal amount of this Revolving Note and (ii) the outstanding principal
amount of all certificates issued by the Trust that are or may be
classified as debt for federal income tax purposes to exceed (b) 80% of (x)
the aggregate amount of Principal Receivables and amounts on deposit in the
Special Funding Account minus (y) the principal amount of any Supplemental
Certificate, Participation Interest and any other interest in the
Transferor's Interest not held by the Transferor.
3. Interest. Each Loan shall bear interest which shall be
calculated as the arithmetic mean of the beginning and ending principal
balances for such month, from the date hereof until this Revolving Note is
fully paid, at a monthly rate equal to one-twelfth of the Federal Funds
rate near closing bid as published in the Wall Street Journal on the
fifteenth of that month, or the next Business Day if the fifteenth is not a
Business Day. Interest shall be due and payable semi-annually on the last
day of April and October of each year (each, an "Interest Payment Date"),
commencing on April 30, 1996. Interest is based on twelve 30-day months.
4. Payment. Subject to the limitations on payment set forth in
Section 5 hereof, the Lender shall be entitled to and may require the
Borrower to, make a payment of the loans, in whole or in part, on any day
upon providing one Business Day's written notice to the Borrower.
5. Subordination of Obligations. The Lender irrevocably agrees
that the obligations of the Borrower under this Note with respect to the
payment of principal and interest are and shall be fully and irrevocably
subordinate in right of payment and subject to the prior payment or
provision for payment in full of all Senior Indebtedness, that such
obligations may only be satisfied to the extent of cash or other assets of
the Borrower then available for such purpose after giving effect to all
required payments in respect of Senior Indebtedness, and that such
obligations shall not constitute a claim against the Borrower at any time
that, and for so long as, cash or such other assets available therefor are
insufficient. "Senior Indebtedness" means the principal of and interest,
including post-default interest, on any indebtedness of or guaranteed by
the Borrower, whether outstanding or guaranteed on the date hereof or
thereafter created, incurred, assumed or guaranteed for money borrowed or
for the deferred purchase price of property purchased by any person
including, for this purpose, all obligations of the Borrower under
capitalized leases or purchase money mortgages, and, in each such case, all
renewals, extensions and refundings thereof including, without limitation,
all obligations of the Borrower arising under or in respect of the Pooling
and Servicing Agreement; provided, however, that Senior Indebtedness shall
not include any obligation of or guarantee by the Borrower, whether
outstanding or guaranteed on the date hereof of thereafter created,
incurred, assumed or guaranteed that by agreement, operation of law or by
its terms is subordinate in right of payment to this Note. In the event of
the appointment of a receiver or trustee of the Borrower or in the event of
its insolvency, bankruptcy, assignment for the benefit of creditors or
reorganization, whether or not pursuant to the bankruptcy laws, or any
other marshalling of the assets and liabilities of the Borrower, the Lender
shall not be entitled to participate or share, ratably or otherwise, in the
distribution of the assets of the Borrower until all claims of all other
present and future creditors of the Borrower, whose claims are senior
hereto, have been fully satisfied, or provisions have been made therefor.
6. Acceleration Upon Certain Events. The Borrower's obligation
to pay the unpaid principal amount hereof shall forthwith mature, together
with interest accrued thereon, in the event of any receivership,
insolvency, liquidation, bankruptcy, assignment for the benefit of
creditors, reorganization whether or not pursuant to bankruptcy laws, or
any other marshalling of the assets and liabilities of the Borrower, but
payment of the same shall remain subordinate as hereinabove set forth.
7. Effect of Default. Default in any payment hereunder,
including the payment of interest, shall not accelerate the maturity hereof
except as herein specifically provided, and the obligation to make payments
shall remain subordinated as hereinabove set forth.
8. Upon Whom Binding. The provisions of this Note shall be
binding upon the Lender, its successors and assigns and upon the Borrower.
9. GOVERNING LAW. THIS NOTE SHALL BE DEEMED TO HAVE BEEN MADE
UNDER, AND SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF DELAWARE IN ALL
RESPECTS.
10. Cancellation. This Note shall not be subject to
cancellation by either party.
11. No Security. The Lender agrees that it is not taking and
will not take or assert as security for the payment of this Note any
security interest in or lien upon, whether created by contract, statute or
otherwise, any property of the Borrower or any property in which the
Borrower may have an interest, which is or at any time may be in possession
or subject to the control of the Lender. The Lender hereby waives, and
further agrees that it will not seek to obtain payment of this Note in
whole or in any part by exercising any right of set-off it may assert or
possess whether created by contract, statute or otherwise. Any agreement
between the Borrower and the Lender (whether in the nature of a general
loan and collateral agreement, a security or pledge agreement or
otherwise), shall be deemed amended hereby to the extent necessary so as
not to be inconsistent with the provisions of this Note.
12. Assignment. This Note shall inure to the benefit of and be
binding upon the parties hereto and each of their respective successors and
assigns. The Borrower may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of the Lender.
13. No Bankruptcy Petition Against the Borrower. The Lender (in
its capacity as Lender, but in no other capacity), by its acceptance of
this Note, hereby covenants and agrees that, prior to the date which is one
year and one day after the payment in full of the Transferor Amount and all
Invested Amounts of all Series issued pursuant to the Pooling and Servicing
Agreement, it will not institute against or join any other Person in
instituting against the Borrower any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar
proceeding under the laws of the United States or any state of the United
States.
IN WITNESS WHEREOF, the undersigned has caused this Note to be
executed by its officers or employees thereunto duly authorized and
directed by appropriate corporate authority.
TARGET RECEIVABLES
CORPORATION
By:________________________
Title:_____________________
THE TERMS AND CONDITIONS
HEREOF ARE HEREBY ACKNOWLEDGED
AND ACCEPTED:
TARGET CAPITAL CORPORATION
By:____________________________
Title:_________________________
Schedule I
LIST OF ACCOUNTS
DEEMED INCORPORATED BY REFERENCE
