TARGET CREDIT CARD MASTER TRUST
SERIES 2000-__
$____________ ____% Class A Asset Backed
Certificates, Series 2000-__
UNDERWRITING AGREEMENT
___________, 2000
[LEAD UNDERWRITER]
As Representative of the Several Underwriters
[Address of Representative]
Ladies and Gentlemen:
1. Introductory. Retailers National Bank, a national banking
association ("RNB"), from time to time sells, transfers and conveys
receivables (the "Receivables") generated from time to time in a portfolio
of open end bank credit card accounts and other rights to Target Capital
Corporation, a Minnesota corporation ("TCC"). TCC from time to time sells,
transfers and conveys the Receivables and other rights to Target
Receivables Corporation, a Minnesota corporation (the "Transferor"). The
Transferor from time to time transfers the Receivables to the Target Credit
Card Master Trust (the "Trust"), and the Transferor and Target Corporation,
a Minnesota corporation (the "Company"), propose to cause the Trust to
issue to the Transferor $____________ principal amount of ____% Class A
Asset Backed Certificates, Series 2000-__ (the "Certificates"), which the
Transferor proposes to sell to the Underwriters pursuant to the terms
hereof, and $____________ principal amount of non-interest bearing Class B
Asset Backed Certificates, Series 2000-__ (the "Class B Certificates"),
which the Transferor intends to retain. The Receivables are and will be (i)
conveyed to TCC by RNB pursuant to the Amended and Restated Bank
Receivables Purchase Agreement, dated as of April 28, 2000 (the "Bank
Receivables Purchase Agreement") between RNB and TCC, (ii) conveyed to the
Transferor by TCC pursuant to the Amended and Restated Receivables Purchase
Agreement, dated as of April 28, 2000 (the "Receivables Purchase
Agreement") between TCC and the Transferor and (iii) transferred from the
Transferor to the Trust pursuant to (a) an Amended and Restated Pooling and
Servicing Agreement among the Transferor, RNB, as Servicer, and Norwest
Bank Minnesota, National Association, as Trustee, dated as of April 28,
2000 (the "Pooling and Servicing Agreement") and (b) the Series 2000-__
Supplement to the Pooling and Servicing Agreement, to be dated as of
___________, 2000 (the "Supplement"), among the Transferor, the Servicer
and the Trustee. Each Certificate represents a specified percentage
undivided interest in the Trust.
This Underwriting Agreement shall hereinafter be referred to
as this "Agreement". This Agreement, the Bank Receivables Purchase
Agreement, the Receivables Purchase Agreement, the Pooling and Servicing
Agreement and the Supplement shall collectively hereinafter be referred to
as the "Basic Documents". Capitalized terms used but not defined herein
have the meanings assigned thereto in the Pooling and Servicing Agreement
and the Supplement. The Transferor and the Company hereby agree with the
several Underwriters named in Schedule A hereto ("Underwriters") as
follows:
2. Representations and Warranties of the Transferor and the
Company. The Transferor and the Company hereby jointly and severally
represent and warrant to, and agree with, the several Underwriters that:
(a) A registration statement on Form S-3 (No.
333-95585) relating to the Certificates, including a form of
prospectus, has been filed with the Securities and Exchange
Commission (the "Commission") and either (i) has been declared
effective under the Securities Act of 1933 (the "Act") and is not
proposed to be amended or (ii) is proposed to be amended by
amendment or post- effective amendment. If such registration
statement (the "initial registration statement") has been declared
effective, either (i) an additional registration statement (the
"additional registration statement") relating to the Certificates
may have been filed with the Commission pursuant to Rule 462(b)
("Rule 462(b)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Certificates
all have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional
registration statement or (ii) such an additional registration
statement is proposed to be filed with the Commission pursuant to
Rule 462(b) and will become effective upon filing pursuant to such
Rule and upon such filing the Certificates will all have been duly
registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the
Transferor does not propose to amend the initial registration
statement or, if an additional registration statement has been
filed and the Transferor does not propose to amend it and if any
post-effective amendment to either such registration statement has
been filed with the Commission prior to the execution and delivery
of this Agreement, the most recent amendment (if any) to each such
registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule
462(c) ("Rule 462(c)") under the Act or, in the case of the
additional registration statement, Rule 462(b). For purposes of
this Agreement, "Effective Time" with respect to the initial
registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement
means (i) if the Transferor has advised the [Lead Underwriter] (the
"[Lead Underwriter]") as representative of the Underwriters (the
"Representative"), that it does not propose to amend such
registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (ii) if the
Transferor has advised the Representative that it proposes to file
an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the
Commission. If an additional registration statement has not been
filed prior to the execution and delivery of this Agreement but the
Transferor has advised the Representative that it proposes to file
one, "Effective Time" with respect to such additional registration
statement means the date and time as of which such registration
statement is filed and becomes effective pursuant to Rule 462(b).
"Effective Date" with respect to the initial registration statement
or the additional registration statement (if any) means the date of
the Effective Time thereof. The initial registration statement, as
amended at its Effective Time, including all material incorporated
by reference therein, including all information contained in the
additional registration statement (if any) and deemed to be a part
of the initial registration statement as of the Effective Time of
the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial
registration statement as of its Effective Time pursuant to Rule
430A(b) ("Rule 430A(b)") under the Act, is hereinafter referred to
as the "Initial Registration Statement." The additional
registration statement, as amended at its Effective Time, including
the contents of the initial registration statement incorporated by
reference therein and including all information (if any) deemed to
be a part of the additional registration statement as of its
Effective Time pursuant to Rule 430A(b), is hereinafter referred to
as the "Additional Registration Statement". The Initial
Registration Statement and the Additional Registration Statement
are hereinafter referred to collectively as the "Registration
Statements" and individually as a "Registration Statement". The
form of prospectus relating to the Certificates, as first filed
with the Commission pursuant to and in accordance with Rule 424(b)
("Rule 424(b)") under the Act or (if no such filing is required) as
included in a Registration Statement, including all material
incorporated by reference in such prospectus, is hereinafter
referred to as the "Prospectus". No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act.
(b) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement:
(i) on the Effective Date of the Initial Registration Statement,
the Initial Registration Statement conformed in all material
respects to the requirements of the Act and the rules and
regulations of the Commission (the "Rules and Regulations") and did
not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading, (ii) on the
Effective Date of the Additional Registration Statement (if any),
each Registration Statement conformed, or will conform, in all
respects to the requirements of the Act and the Rules and
Regulations and did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not omit, to
state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and (iii) on the
date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is
prior to the execution and delivery of this Agreement, the
Additional Registration Statement each conforms, and at the time of
filing of the Prospectus pursuant to Rule 424(b) or (if no such
filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus conforms or will conform,
in all material respects to the requirements of the Act and the
Rules and Regulations, and neither of such documents includes, or
will include, any untrue statement of a material fact or omits, or
will omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement: on the Effective
Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all
material respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents will include any untrue
statement of a material fact or will omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, and no Additional Registration
Statement has been or will be filed. The preceding two sentences do
not apply to statements in or omissions from a Registration
Statement or the Prospectus based upon written information
furnished to the Transferor or the Company by any Underwriter
through the Representative specifically for use therein, it being
understood and agreed that the only such information is that
described as such in Section 7(b).
(c) Each of the Transferor and the Company has been
duly incorporated and is an existing corporation in good standing
under the laws of the State of Minnesota, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus; and each of the Transferor
and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business
requires such qualification and where the failure to so qualify
might permanently impair title to property material to its
operation or its right to enforce a material contract against
others or expose it to substantial liability in such jurisdiction.
(d) No consent, approval, authorization, or order of,
or filing with, any governmental agency or body or any court is
required for the consummation by the Transferor or the Company of
the transactions contemplated by this Agreement in connection with
the issuance and sale of the Certificates, except such as have been
obtained and made under the Act, and except such as may be required
under state securities laws.
(e) Neither the Transferor nor the Company is in
violation of its Articles of Incorporation or Bylaws or in default
in the performance or observance of any obligation, agreement,
covenant or condition contained in any agreement or instrument to
which it is a party or by which it or its properties are bound
which would have a material adverse effect on the transactions
contemplated in the Basic Documents. The execution, delivery and
performance of the Basic Documents and the issuance and sale of the
Certificates and compliance with the terms and provisions thereof
will not result in a material breach or violation of any of the
terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction over
the Transferor or the Company or any subsidiary of either of them
or any of their properties, or any material agreement or instrument
to which the Transferor or the Company or any such subsidiary is a
party or by which the Transferor or the Company or any such
subsidiary is bound or to which any of the properties of the
Transferor or the Company or any such subsidiary is subject, or the
Articles of Incorporation or Bylaws of the Transferor or the
Company or any such subsidiary, and the Transferor has full power
and authority to authorize, issue and sell the Certificates as
contemplated by this Agreement and each of the Transferor and the
Company has full power and authority to enter into the Basic
Documents to which it is a party.
(f) As of the Closing Date, the representations and
warranties of the Transferor in the Basic Documents to which it is
a party will be true and correct.
(g) This Agreement has been duly
authorized, executed and delivered by the Transferor
and the Company.
(h) The Transferor has authorized the conveyance of
the Receivables to the Trust, and the Transferor has authorized the
Trust to issue and sell the Certificates.
(i) The Company has delivered to you complete and
correct copies of its Form 10-Q for the ________ quarter of [year]
and its Form 10-K for [year]. Except as set forth in or
contemplated in the Registration Statement and the Prospectus,
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other) of either the Transferor or the
Company or the credit card business of the Company or its
Affiliates since the date of the information provided pursuant to
the preceding sentence.
(j) Any taxes, fees and other governmental charges
due and payable from or by the Transferor or the Company in
connection with the execution, delivery and performance of the
Basic Documents and the Certificates and any other agreements
contemplated therein shall have been paid or will be paid by the
Transferor or the Company, as the case may be, at or prior to the
Closing Date to the extent then due.
3. Purchase, Sale and Delivery of Certificates. On the basis
of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Transferor agrees
to sell to the Underwriters, and the Underwriters agree, severally and not
jointly, to purchase from the Transferor, at a purchase price of
__________% of the principal amount thereof, the respective principal
amounts of Certificates set forth opposite the names of the Underwriters in
Schedule A hereto.
The Transferor will deliver against payment of the purchase
price the Certificates in the form of one or more permanent global
securities in definitive form (the "Global Certificates") deposited with
the Trustee as custodian for The Depository Trust Company ("DTC") and
registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent global securities will be held only in book-entry form through
DTC, except in the limited circumstances described in the Prospectus.
Payment for the Certificates shall be made by the Underwriters in Federal
(same day) funds by wire transfer to an account previously designated to
the [Lead Underwriter] by the Transferor or the Company at 10:00 a.m. (New
York time), on __________, 2000, or at such other time not later than seven
full business days thereafter as the [Lead Underwriter] and the Transferor
determine, such time being herein referred to as the "Closing Date,"
against delivery to the Trustee as custodian for DTC of the Global
Certificates representing all of the Certificates. For purposes of Rule
15c6-1 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), the Closing Date (if later than the otherwise applicable settlement
date) shall be the settlement date for payment of funds and delivery of the
Certificates. The Global Certificates will be made available for checking
at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, Four Times
Square, New York, New York, at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. It is understood
that the several Underwriters propose to offer the
Certificates for sale to the public (which may include
selected dealers) as set forth in the Prospectus.
5. Certain Agreements of the Transferor and
the Company. The Transferor and the Company jointly and
severally covenant and agree with the several
Underwriters that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement,
the Transferor will file the Prospectus with the Commission
pursuant to Rule 424(b)(1) (or if applicable, and if insisted to by
the Underwriters pursuant to Rule 424(b)(4)) not later than the
Commission's close of business on the second business day following
the earlier of (A) the date of determination of the offering price
or (B) the date the Prospectus is first used after effectiveness in
connection with a public offering or sale.
The Transferor will advise the Representative promptly of any such
filing pursuant to Rule 424(b). If the Effective Time of the
Initial Registration Statement is prior to the execution and
delivery of this Agreement and an additional registration statement
is necessary to register a portion of the Certificates under the
Act but the Effective Time thereof has not occurred as of such
execution and delivery, the Transferor will file the additional
registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance
with Rule 462(b) on or prior to 10:00 P.M., New York time, on the
date of this Agreement or, if earlier, on or prior to the time the
Prospectus is printed and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to
by the [Lead Underwriter].
(b) The Transferor or the Company will advise the
Representative promptly of any proposal to amend or supplement the
initial or any additional registration statement as filed or the
related prospectus, or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus, and
will not effect such amendment or supplementation without the
Representative's consent; and the Transferor or the Company will
also advise the Representative promptly of the effectiveness of
each Registration Statement (if its Effective Time is subsequent to
the execution and delivery of this Agreement) and of any amendment
or supplementation of a Registration Statement or the Prospectus
and of the institution by the Commission of any stop order
proceeding in respect of a Registration Statement and each of the
Transferor and the Company will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible
its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, any event
occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend
the Prospectus to comply with the Act, the Transferor will promptly
notify the Representative of such event and will promptly prepare
and file with the Commission (subject to the Representative's prior
review pursuant to paragraph (b) of this Section 5), at its own
expense, an amendment or supplement which will correct such
statement or omission, or an amendment which will effect such
compliance. Neither the Representative's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section
6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Transferor will cause the
Trust to make generally available to the Certificateholders an
earnings statement of the Trust covering a period of at least 12
months beginning after the Effective Date of the Initial
Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 45th day after
the end of the Trust's fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such
fourth fiscal quarter is the last quarter of the Trust's
fiscal year, "Availability Date" means the 90th day after the end
of such fourth fiscal quarter.
(e) The Transferor or the Company will furnish to the
Representative copies of each Registration Statement (two of which
will be signed and will include all exhibits), each related
preliminary prospectus, and, so long as delivery of a prospectus
relating to the Certificates is required to be delivered under the
Act in connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the
Representative requests. The Prospectus shall be so furnished on or
prior to 10:00 A.M., New York time, on the business day following
the later of the execution and delivery of this Agreement or the
Effective Time of the Initial Registration Statement. All other
such documents shall be so furnished as soon as available. The
Transferor or the Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Transferor will cooperate in the
qualification of the Certificates for sale and the determination of
their eligibility for investment under the laws of such
jurisdictions as the Representative designates and in the
continuation of such qualifications in effect so long as required
for the distribution of the Certificates.
(g) For a period from the date of this Agreement
until the retirement of the Certificates (i) RNB, as Servicer, will
furnish to the Representative and, upon request, to each of the
other Underwriters, copies of each certificate and the annual
statements of compliance delivered to the Trustee pursuant to
Article III of the Pooling and Servicing Agreement and Section 5.2
of the Supplement and the annual independent certified public
accountant's servicing reports furnished to the Trustee pursuant to
Article III of the Pooling and Servicing Agreement, by either
first-class mail or electronic transfer as soon as practicable
after such statements and reports are furnished to the Trustee, and
(ii) any other periodic certificates or reports as may be delivered
to the Trustee or the Certificateholders under the Pooling and
Servicing Agreement or the Supplement.
(h) So long as any of the Certificates is
outstanding, the Transferor will furnish to the Representative by
either first-class mail or electronic transfer as soon as
practicable, copies of all documents (A) distributed, or caused to
be distributed, by the Transferor to Certificateholders, (B) filed,
or caused to be filed, by the Transferor with the Commission
pursuant to the Exchange Act, any order of the Commission
thereunder or pursuant to a "no-action" letter from the staff of
the Commission and (C) from time to time, such other information in
the possession of the Transferor concerning the Trust as the
Representative may reasonably request. The Transferor will register
the Certificates under the Exchange Act within 120 days after the
end of the fiscal year of the Trust during which the offering of
the Certificates to the public occurred.
(i) The Transferor will pay all expenses incident to
the performance of its obligations under this Agreement and will
reimburse the Underwriters (if and to the extent incurred by them)
for any filing fees and other expenses (including fees and
disbursements of their counsel) incurred by them in connection with
qualification of the Certificates for sale and determination of
their eligibility for investment under the laws of such
jurisdictions as the Representative designates and the printing of
memoranda relating thereto, for any fees charged by investment
rating agencies for the rating of the Certificates, for any travel
expenses of the Transferor's officers and employees and any other
expenses of the Transferor in connection with attending or hosting
meetings with prospective purchasers of the Certificates and for
expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto).
(j) To the extent, if any, that the ratings provided
with respect to the Certificates by the Rating Agencies is
conditional upon the furnishing of documents or the taking of any
other action by the Transferor or the Company agreed upon on or
prior to the Closing Date, the Transferor or the Company shall
furnish such documents and take any such other action.
(k) The Transferor or the Company shall not, until
after the Closing Date, offer, sell or contract to sell, directly
or indirectly, or file with the Commission a registration statement
under the Act relating to, securities substantially similar to the
Certificates.
6. Conditions of the Obligations of the Underwriters. The
obligation of the several Underwriters to purchase and pay for the
Certificates on the Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Transferor and the
Company herein, to the accuracy of the statements of officers of the
Transferor and the Company made pursuant to the provisions hereof, to the
performance by each of the Transferor and the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) The Representative shall have received a letter,
dated the date of delivery thereof (which, if the Effective Time of
the Initial Registration Statement is prior to the execution and
delivery of this Agreement, shall be on or prior to the date of
this Agreement or, if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery
of this Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed
shortly prior to such Effective Time), of Ernst & Young LLP, in
form and substance satisfactory to the Underwriters and counsel for
the Underwriters, confirming that they are independent public
accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating in effect
that (i) they have performed certain specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of RNB) set forth in the Registration
Statements and the Prospectus (and any supplements thereto), agrees
with the accounting records of RNB, excluding any questions of
legal interpretation, and (ii) they have performed certain
specified procedures with respect to the accounts.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, "Registration Statements" shall mean
the initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to
its Effective Time, (ii) if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional
Registration Statement is subsequent to such execution and
delivery, "Registration Statements" shall mean the Initial
Registration Statement and the additional registration statement as
proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective
Time, and (iii) "Prospectus" shall mean the prospectus included in
the Registration Statements. All financial statements included in
material incorporated by reference into the Prospectus shall be
deemed included in the Registration Statements for purposes of this
subsection.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or such
later date as shall have been consented to by the Representative.
If the Effective Time of the Additional Registration Statement (if
any) is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M.,
New York time, on the date of this Agreement or, if earlier, the
time the Prospectus is printed and distributed to any Underwriter,
or shall have occurred at such later date as shall have been
consented to by the [Lead Underwriter]. If the Effective Time of
the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed
with the Commission in accordance with the Rules and Regulations
and Section 5(a) of this Agreement. Prior to such Closing Date, no
stop order suspending the effectiveness of a Registration
Statement shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the
Transferor, the Company or the Representative, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the
condition (financial or other), business, properties or results of
operations of any of the Transferor, TCC, the Company or RNB or its
credit card business which, in the judgment of a majority in
interest of the Underwriters including the Representative, is
material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for the Certificates; (ii) any downgrading in the rating of
any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication
of a possible downgrading, of such rating) if in the judgment of a
majority in interest of the Underwriters including the
Representative, the effect of any such downgrading or public
announcement makes it impractical or inadvisable to proceed with
the completion of the public offering or the sale of and payment
for the Certificates; (iii) any suspension or limitation of trading
in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Transferor or the
Company on any exchange or in the over-the-counter market; (iv) any
banking moratorium declared by U.S. Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities
in which the United States is involved, any declaration of war by
Congress or any substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the
Underwriters including the Representative, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes
it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Certificates.
(d) You shall have received from James T. Hale,
General Counsel for the Transferor, the Company, TCC and RNB, such
opinion or opinions dated the Closing Date and satisfactory in form
and substance to you and your counsel, substantially to the effect
that:
(i) Each of the Transferor, the
Company and TCC has been duly incorporated and is validly existing
and in good standing under the laws of the State of Minnesota with
full corporate power, authority and legal right to own its
properties and conduct its business as such properties are
currently owned and such business is currently conducted, to
execute, deliver and perform its obligations under each of the
Basic Documents to which it is a party and, solely with respect to
the Transferor, to execute and deliver to the Trustee the
Certificates pursuant to the Pooling and Servicing Agreement;
(ii) RNB is a national banking
corporation duly organized, validly existing and in good standing
under the laws of the United States, and has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under the Basic Documents to which it is a party and,
in all material respects, to own its properties and conduct its
business as such properties are presently owned and as such
business is presently conducted;
(iii) Each of the Transferor, the
Company, TCC and RNB is duly qualified to do business and is in
good standing as a foreign corporation (or is exempt from such
requirements), and has obtained all necessary licenses and
approvals in each jurisdiction in which failure to so qualify or to
obtain such licenses and approvals would render any Credit Card
Agreement relating to an Account owned by the Credit Card
Originator or any Receivable transferred to the Trust by the
Transferor unenforceable by the Credit Card Originator, the
Transferor, the Servicer or the Trustee and would have a material
adverse effect on the interests of the Certificateholders under the
Pooling and Servicing Agreement or under any Supplement;
(iv) The Certificates have been duly
authorized, executed and delivered by the Transferor and, when duly
authenticated by the Trustee in accordance with the terms of the
Pooling and Servicing Agreement and delivered to and paid for by
the Underwriters in accordance with the terms of this Agreement,
will be validly issued and outstanding and entitled to the benefits
provided by the Pooling and Servicing Agreement;
(v) Each of the Basic Documents to
which the applicable entity is a party has been duly authorized,
executed and delivered by the Transferor, the Company, TCC and/or
the Servicer, as the case may be, and constitutes the legal, valid
and binding agreement of the Transferor, the Company, TCC and/or
the Servicer, as the case may be, enforceable against the
Transferor, the Company, TCC and/or the Servicer, as the case may
be, in accordance with its terms, except (x) to the extent that the
enforceability thereof may be limited by (A) bankruptcy,
insolvency, receivership, conservatorship, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors
generally and the rights of creditors as the same may be applied in
the event of bankruptcy, insolvency, receivership,
reorganization,moratorium or other similar event in respect of the
Transferor, the Company, TCC and/or the Servicer, (B) general
principles of equity (regardless of whether considered and applied
in a proceeding in equity or in law) and (C) with respect to the
Pooling and Servicing Agreement and the Supplement, the
qualification that certain of the remedial provisions of the
Pooling and Servicing Agreement and the Supplement may be
unenforceable in whole or in part, but the inclusion of such
provisions does not affect the validity of the Pooling and
Servicing Agreement or the Supplement taken as a whole, and the
Pooling and Servicing Agreement and the Supplement, together with
applicable law, contain adequate provisions for the practical
realization of the benefits of the security created thereby; and
(y) such counsel expresses no opinion as to the enforceability of
any rights to contribution or indemnification which are violative
of public policy underlying any law, rule or regulation;
(vi) No consent, approval,
authorization or order of any governmental agency or body is
required for (A) the execution, delivery and performance by the
Transferor, the Company, TCC or the Servicer of its obligations
under any of the Basic Documents or the Certificates to which it is
a party, or (B) the issuance or sale of the Certificates, except
such as have been obtained under the Act and as may be required
under state securities or blue sky laws in connection with the
purchase and distribution of the Certificates by the Underwriters;
(vii) None of the execution and
delivery of the Basic Documents or the Certificates by the
Transferor, the Company, TCC and/or the Servicer, as the case may
be, or the performance by the Transferor, the Company, TCC and/or
the Servicer, as the case may be, of the transactions therein
contemplated or the fulfillment of the terms thereof does or will
result in any violation of any statute or regulation or any order
or decree of any court or governmental authority binding upon the
Transferor, the Company, TCC or the Servicer or the property of the
Transferor, the Company, TCC or the Servicer, or conflict with, or
result in a breach or violation of any term or provision of, or
result in a default under any of the terms and provisions of, the
charter or by-laws of the Transferor, the Company, TCC or the
Servicer, or any material indenture, loan agreement or other
material agreement to which the Transferor, the Company, or the
Servicer is a party or by which any of them is bound;
(viii) There are no proceedings or
investigations pending or, to the best knowledge of such counsel,
threatened against the Transferor, the Company, TCC or RNB, before
any court, regulatory body, administrative agency, or other
tribunal or governmental instrumentality (i) asserting the
invalidity of any of the Basic Documents or the Certificates, (ii)
seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by any of the
Basic Documents or the Certificates, (iii) seeking any
determination or ruling that, in the reasonable judgment of such
counsel, would materially and adversely affect the performance by
the Transferor of its obligations under any of the Basic Documents,
(iv) seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of any of the Basic
Documents or the Certificates or (v) seeking to affect adversely
the income tax attributes of the Trust under the Federal or
applicable state income or franchise tax systems;
(e) You shall have received from Skadden,
Arps, Slate, Meagher & Flom LLP, special counsel to the Transferor, such
opinion or opinions dated the Closing Date and satisfactory in form and
substance to you and your counsel, substantially to the effect that the
Certificates will be treated as indebtedness for Federal income tax
purposes and that the Trust will not be classified as an association
taxable as a corporation.
(f) You shall have received from
Davenport, Evans, Hurwitz & Smith, special South Dakota tax counsel to RNB,
such opinion or opinions dated the Closing Date and satisfactory in form
and substance to you and your counsel, substantially to the effect that, to
the extent that the Certificates will be characterized as debt for Federal
income tax purposes, the Certificates will be characterized as debt for
South Dakota income tax purposes, and to the effect that, to the extent
that the Trust will not be subject to tax at the entity level for Federal
income tax purposes, the Trust will not be subject to tax at the entity
level for South Dakota income tax purposes.
(g) You shall have received from Faegre &
Benson, special Minnesota tax counsel to the Transferor, such opinion or
opinions dated the Closing Date and satisfactory in form and substance to
you and your counsel, substantially to the effect that when the
Certificates are beneficially owned by a person that is not a member of the
Transferor's consolidated group, the certificates will be characterized as
debt for Minnesota income tax purposes and to the effect that the Trust
will not be subject to tax at the entity level.
(h) You shall have received from Skadden,
Arps, Slate, Meagher & Flom LLP, special counsel to the Transferor, such
opinion or opinions dated the Closing Date and satisfactory in form and
substance to you and your counsel, substantially to the effect that:
(i) Each of the Pooling and
Servicing Agreement and the Supplement constitutes the valid and
binding obligation of the Transferor, RNB and the Trustee,
enforceable against the Transferor, RNB and the Trustee in
accordance with its terms, except (x) to the extent that the
enforceability thereof may be limited by (a) bankruptcy,
insolvency, receivership, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and the rights of creditors as the same may be
applied in the event of the bankruptcy, insolvency, receivership,
reorganization, moratorium or other similar event in respect of the
Transferor, RNB or the Trustee, (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding
at law or in equity) and (c) the qualification that certain of the
remedial provisions of the Pooling and Servicing Agreement may be
unenforceable in whole or in part, but the inclusion of such
provisions does not affect the validity of the Pooling and
Servicing Agreement taken as a whole, and the Pooling and Servicing
Agreement, together with applicable law, contain adequate
provisions for the practical realization of the benefits of the
security created thereby and (y) such counsel expresses no opinion
as to the enforceability of any rights to contribution or
indemnification which are violative of public policy underlying any
law, rule or regulation;
(ii) The Bank Receivables Purchase
Agreement constitutes the valid and binding obligation of RNB and
TCC, enforceable against RNB and TCC in accordance with its terms,
except (x) to the extent that the enforceability thereof may be
limited by (a) bankruptcy, insolvency, receivership,
conservatorship, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally
and the rights of creditors as the same may be applied in the event
of the bankruptcy, insolvency, receivership, conservatorship,
reorganization, moratorium or other similar event in respect of RNB
or TCC and (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law
or in equity) and (y) such counsel expresses no opinion as to the
enforceability of any rights to contribution or indemnification
which are violative of public policy underlying any law, rule or
regulation;
(iii) The Receivables Purchase
Agreement constitutes the valid and binding obligation of TCC and
the Transferor, enforceable against TCC and the Transferor in
accordance with its terms, except (x) to the extent that the
enforceability thereof may be limited by (a) bankruptcy,
insolvency, receivership, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and the rights of creditors as the same may be
applied in the event of the bankruptcy, insolvency, receivership,
reorganization, moratorium or other similar event in respect of TCC
and the Transferor and (b) general principles of equity (regardless
of whether enforceability is considered in a proceeding at law or
in equity) and (y) such counsel expresses no opinion as to the
enforceability of any rights to contribution or indemnification
which are violative of public policy underlying any law, rule or
regulation;
(iv) The Certificates, when executed
and authenticated in accordance with the terms of the Pooling and
Servicing Agreement and the Supplement and delivered to and paid
for by the Underwriters pursuant to this Agreement, will be duly
and validly issued and outstanding and will be entitled to the
benefits of the Pooling and Servicing Agreement and the Supplement;
(v) This Agreement has been duly
authorized, executed and delivered by the Transferor
and the Company;
(vi) Neither the execution, delivery
or performance by each of the Transferor, the Company, TCC or RNB
of the Basic Documents to which it is a party, nor the compliance
by each of the Transferor, the Company, TCC or RNB, as the case may
be, with the terms and provisions thereof or hereof, will
contravene any provision of any applicable law;
(vii) Based on such counsel's review
of applicable laws, no governmental approval, which has not been
obtained or taken and is not in full force and effect, is required
to authorize or is required in connection with the execution,
delivery or performance by each of the Transferor, the Company, TCC
or RNB, of the Basic Documents to which it is a party;
(viii) The Certificates and the Basic
Documents conform in all material respects to the
descriptions thereof contained in the Prospectus;
(ix) The Pooling and Servicing
Agreement is not required to be qualified under the Trust Indenture
Act of 1939, as amended, and the Trust is not required to be
registered under the Investment Company Act of 1940, as amended
(the "1940 Act");
(x) The statements in the Prospectus
under the heading "Legal Aspects of the Receivables," to the extent
that they constitute matters of law or legal conclusions with
respect thereto, have been reviewed by such counsel and are correct
in all material respects;
(xi) The Initial Registration
Statement has become effective under the Act, the Additional
Registration Statement (if any) was filed and became effective
under the Act, and the Prospectus Supplement has been filed with
the Commission pursuant to Rule 424(b) thereunder, no stop order
suspending the effectiveness of a Registration Statement has been
issued and no proceeding for that purpose has been instituted or
threatened; and
(xii) Each of the Registration
Statements, as of their effective dates, and the Prospectus, as of
its date, appeared on its face to be appropriately responsive in
all material respects to the requirements of the Act and the
General Rules and Regulations under the Act, except that in each
case such counsel expresses no opinion as to the financial data
included therein or excluded therefrom or the exhibits to a
Registration Statement, and such counsel does not assume any
responsibility for the accuracy, completeness or
fairness of the statements contained in a
Registration Statement and the Prospectus.
Such opinion shall also state that such
counsel has participated in conferences with officers and representatives
of the Transferor, the Company, TCC and RNB, counsel for the Transferor,
the Company, TCC and RNB, representatives of the independent accountants of
the Transferor, the Company, TCC and RNB, and the Underwriters at which the
contents of the Prospectus and related matters were discussed and, although
such counsel need not pass upon, and need not assume any responsibility
for, the accuracy, completeness or fairness of the statements contained in
the Prospectus and shall have made no independent check or verification
thereof, except for those made under the caption "Legal Aspects of the
Receivables" to the extent set forth in paragraph (x) above, on the basis
of the foregoing, no facts shall have come to such counsel's attention that
shall have led such counsel to believe that the Prospectus, as of its date
or the date of its opinion, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading, except that such counsel need not express an opinion
or belief with respect to the financial statements, schedules and other
financial information included in such Prospectus or excluded therefrom.
(i) You shall have received from
Davenport, Evans, Hurwitz & Smith special South Dakota counsel to RNB, such
opinion or opinions dated the Closing Date and satisfactory in form and
substance to you and your counsel, substantially to the effect that:
(i) The security interest created by
the Bank Receivables Purchase Agreement in the Receivables has been
perfected under Article 9 of the Uniform Commercial Code of South Dakota by
the proper filing of UCC-1 financing statements with the appropriate filing
offices in South Dakota, and such security interest is of first priority
under Article 9 of the South Dakota Uniform Commercial Code; and
(ii) The UCC-1 financing statements
have been previously filed, have not been amended or terminated and no
other filings or other actions, with respect to TCC's interest in the
Receivables, are necessary to perfect the interest of TCC in the
Receivables, and the proceeds thereof, conveyed to TCC, except that
appropriate continuation statements must be filed in accordance with the
applicable state's requirements.
(j) You shall have received from Faegre &
Benson, special Minnesota counsel to the Transferor and TCC, such opinion
or opinions dated the Closing Date and satisfactory in form and substance
to you and your counsel, substantially to the effect that:
(i) Each of the security interest
created by the Receivables Purchase Agreement and the security interest
created by the Pooling and Servicing Agreement in the Receivables has been
perfected under Article 9 of the Uniform Commercial Code of Minnesota by
the proper filing of UCC-1 financing statements with the appropriate filing
offices in Minnesota, and each such security interest is of first priority
under Article 9 of the Minnesota Uniform Commercial Code; and
(ii) The UCC-1 financing statements
have been previously filed have not been amended or terminated and (a) no
other filings or other actions, with respect to the Transferor's interest
in the Receivables, are necessary to perfect the interest of the Transferor
in the Receivables, and the proceeds thereof, conveyed to the Transferor
thereunder and (b) no other filings or other actions, with respect to the
Trustee's interest in the Receivables, are necessary to perfect the
interest of the Trustee in the Receivables, and proceeds thereof, against
third parties, except, in each case, that appropriate continuation
statements must be filed in accordance with the applicable state's
requirements.
(k) You shall have received from Skadden,
Arps, Slate, Meagher & Flom LLP, special counsel to RNB, TCC and the
Transferor, such opinion or opinions dated the Closing Date and
satisfactory in form and substance to you and your counsel, substantially
to the effect that the Bank Receivables Purchase Agreement creates in favor
of TCC a security interest under Article 9 of the Delaware Uniform
Commercial Code (the "Delaware UCC") in the rights of RNB in the
Receivables, the Receivables Purchase Agreement creates in favor of the
Transferor a security interest under Article 9 of the Delaware UCC in the
rights of TCC in the Receivables and the Pooling and Servicing Agreement
creates in favor of the Trustee a security interest under Article 9 of the
Delaware UCC in the rights of the Transferor in the Receivables.
(l) You shall have received from Skadden,
Arps, Slate, Meagher & Flom LLP, special counsel to the Transferor, such
opinion or opinions dated the Closing Date and satisfactory in form and
substance to you and your counsel, substantially to the effect that:
(i) In a properly presented and
argued case in a proceeding under Title 11 of the United States Code, 11
U.S.C. ss. ss. 101, et seq. (the "Bankruptcy Code"), if the matter were
properly briefed and presented to a court, the court would hold that (1)
the transfer of the Receivables by TCC to the Transferor in the manner set
forth in the Receivables Purchase Agreement would constitute the sale of
the Receivables from TCC to the Transferor, and (2) in the event that TCC
were to become a debtor under the Bankruptcy Code, the transfer of
Receivables under the Receivables Purchase Agreement would not, after full
consideration of all relevant factors, be properly characterized as a
pledge of the Receivables to secure a borrowing by TCC from the Transferor,
and accordingly, the Receivables and the proceeds thereof would not be part
of the estate of TCC under Section 541 of the Bankruptcy Code in such
event, and consequently Section 362 of the Bankruptcy Code would not be
applicable to the Receivables and the proceeds thereof; and
(ii) If TCC should become a debtor in
a case under the Bankruptcy Code, and the Transferor would not otherwise
properly be a debtor in a case under the Bankruptcy Code, and if the matter
were properly briefed and presented to a court exercising bankruptcy
jurisdiction, it would not be a proper exercise by the court of its
equitable discretion to disregard the separate corporate existence of the
Transferor so as to order substantive consolidation under the Bankruptcy
Code of the assets and liabilities of the Transferor with the bankruptcy
estate of TCC.
(m) You shall have received from [Tomothy
Carlin], Assistant Vice President and Senior Counsel for Norwest
Corporation, parent of the Trustee, such opinion or opinions dated the
Closing Date and satisfactory in form and substance to you and your
counsel, substantially to the effect that:
(i) The Trustee is a national
banking association duly organized, validly existing and in good
standing under the Federal laws of the United States of America;
(ii) The Trustee has all requisite
power and authority as a national banking association to execute
and deliver, and to perform its obligations under the Pooling and
Servicing Agreement and the Supplement and to consummate the
transactions contemplated by the Pooling and Servicing Agreement
and the Supplement;
(iii) The Trustee's performance of
its obligations under the Pooling and Servicing Agreement and the
execution, delivery and performance of the Trustee's obligations
pursuant to the Supplement by the Trustee does not conflict with or
result in a violation of the Articles of Association or By-Laws of
the Trustee;
(iv) The Pooling and Servicing
Agreement and the Supplement have been duly
authorized, executed and delivered by the Trustee;
and
(v) The Certificates have been duly
authenticated by the Trustee pursuant to the Pooling
and Servicing Agreement.
(n) You shall have received a certificate, dated the Closing
Date and satisfactory in form and substance to you and your counsel, of the
Chairman, President or any Vice President and a principal financial or
accounting officer of each of the Transferor, TCC, RNB and the Company, as
applicable, in which such officers, to the best of their knowledge after
reasonable investigation, shall state that the representations and
warranties of the Transferor and the Company, as the case may be, in this
Agreement are true and correct, that each of the Transferor and the Company
has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to the Closing Date,
that the representations and warranties of each of the Transferor, TCC, RNB
and the Company, as applicable, in the Basic Documents are true and correct
as of the dates specified therein, that no stop order suspending the
effectiveness of a Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by
the Commission, that, subsequent to the date of the Prospectus, there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Transferor, TCC, RNB
or the Company, as the case may be, or its respective credit card business
except as set forth in or contemplated by the Prospectus or as described in
such certificate and that nothing has come to the attention of the
Transferor, TCC, RNB or the Company that would lead the Transferor, TCC,
RNB or the Company to believe that a Registration Statement contains any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(o) You shall have received evidence satisfactory to you and
your counsel that the Certificates shall be rated "AAA" by Standard &
Poor's Ratings Services and "Aaa" by Moody's Investors Service, Inc.
(p) You shall have received a letter, dated such Closing
Date and satisfactory in form and substance to you and your counsel, which
meets the requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more than
five days prior to such Closing Date for the purposes of this subsection
(p).
(q) You shall also receive from each counsel rendering an
opinion not otherwise addressed to you a letter dated the Closing Date and
satisfactory in form and substance to you and your counsel, stating that
you may rely on the opinions of such counsel as delivered to Moody's
Investors Service, Inc. and Standard & Poor's Ratings Services in
connection with the rating of the Certificates.
(r) On the Closing Date, $______________ aggregate principal
amount of the Class B Certificates shall have been issued to the
Transferor.
(s) All proceedings in connection with the transactions
contemplated by this Agreement and the other Basic Documents and all
documents incident hereto and thereto shall be reasonably satisfactory in
form and substance to you and your counsel, and you and your counsel shall
have received such information, certificates and documents as you and your
Counsel may reasonably request.
The Transferor will furnish you with such
conformed copies of such opinions, certificates, letters and documents as
you reasonably request. [The Lead Underwriter] may in its sole discretion
waive on behalf of the Underwriters compliance with any conditions to the
obligations of the Underwriters hereunder.
7. Indemnification and Contribution. (a) The Transferor and
the Company, will jointly and severally indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in a
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that neither the
Transferor nor the Company will be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Transferor or the
Company by any Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such
in subsection (b) below; and provided further, however, that neither the
Transferor nor the Company will be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any preliminary prospectus that was eliminated or
remedied in the Prospectus, if a copy of the Prospectus was not sent
or given with or prior to the written confirmation of the sale of any
Certificate to the person asserting the loss, claim, damage or liability,
if required by the Act.
(b) Each Underwriter will severally and not jointly
indemnify and hold harmless the Transferor and the Company against any
losses, claims, damages or liabilities to which the Transferor or the
Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
the alleged omission to state therein in a material fact required to be
stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished
to the Transferor or the Company by such Underwriter through the
Representative specifically for use therein, and will reimburse any legal
or other expenses reasonably incurred by the Transferor or the Company in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists
of the following information in the Prospectus Supplement furnished on
behalf of each Underwriter: the fifth and sixth paragraphs under the
caption "Underwriting" concerning overallotments and stabilizing and the
concession and reallowance figures appearing in the second paragraph under
the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under subsection (a) or
(b) above. In case any such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release
of such indemnified party from all liability on any claims that are the
subject matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Transferor and the Company on the one hand and the
Underwriters on the other from the offering of the Certificates or (ii) if
the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Transferor and/or the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by the Transferor
and the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Transferor and the
Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Transferor or the Company on the one
hand or by the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the Certificates
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Transferor and the Company under
this Section shall be in addition to any liability which the Transferor and
the Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this
Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Transferor and the Company, to each
officer of the Transferor and the Company who has signed a Registration
Statement and to each person, if any, who controls the Transferor or the
Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase Certificates
hereunder on the Closing Date and the aggregate principal amount of
Certificates that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total principal amount of
Certificates that the Underwriters are obligated to purchase on such
Closing Date, the Representative may make arrangements satisfactory to the
Transferor for the purchase of such Certificates by other persons,
including any of the Underwriters, but if no such arrangements are made by
such Closing Date, the nondefaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to
purchase the Certificates that such defaulting Underwriters agreed but
failed to purchase on such Closing Date. If any Underwriter or Underwriters
so default and the aggregate principal amount of the Certificates with
respect to which such default or defaults occur exceeds 10% of the total
principal amount of the Certificates that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to the
Representative and the Transferor for the purchase of such Certificates by
other persons are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Transferor or the Company, except as
provided in Section 9. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section.
Nothing herein will relieve a defaulting Underwriter from liability for its
default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Transferor and the Company and of their respective
officers and of the several Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Transferor, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Certificates. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Certificates by the Underwriters is not consummated, the Transferor and the
Company shall remain responsible for the expenses to be paid or reimbursed
by it pursuant to Section 5 and the respective obligations of the
Transferor and the Company and the Underwriters pursuant to Section 7 shall
remain in effect, and if any Certificates have been purchased hereunder the
representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Certificates
by the Underwriters is not consummated for any reason other than solely
because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (iii), (iv) or (v) of Section
6(c), the Transferor and the Company, jointly and severally, will reimburse
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with
the offering of the Certificates.
10. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telegraphed
and confirmed to the Representative at [Lead Underwriter], [Address],
Attention Syndicate Manager (facsimile no. [Fax]); if sent to the
Transferor, will be mailed, delivered or telegraphed and confirmed to it at
Target Receivables Corporation, 80 South Eighth Street, 14th floor, Suite
1401, Minneapolis, Minnesota 55402, Attention of Treasurer, (facsimile no.
(612) 370-5508); and if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at Target Corporation, 777 Nicollet Mall,
Minneapolis, Minnesota 55402, Attention of Treasurer (facsimile no. (612)
370-5508); provided; however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
11. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and
the officers and directors and controlling persons referred to in Section
7, and no other person will have any right or obligation hereunder.
12. Representations of Underwriters. The Representative will
act for the several Underwriters in connection with this financing, and any
action under this Agreement taken by the Representative will be binding
upon all the Underwriters. Each of the Underwriters represents and warrants
to, and agrees with, the Transferor that (w) it has only issued or passed
on and shall only issue or pass on in the United Kingdom any document
received by it in connection with the issue of the Certificates to a person
who is of a kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisements) (Exemptions) Order 1996 or who is a person
to whom the document may otherwise lawfully be issued or passed on, (x) it
has complied and shall comply with all applicable provisions of the
Financial Services Act 1986 and other applicable laws and regulations with
respect to anything done by it in relation to the Certificates in, from or
otherwise involving the United Kingdom and (y) if that Underwriter is an
authorized person under the Financial Services Act 1986, it has only
promoted and shall only promote (as that term is defined in Regulation 1.02
of the Financial Services (Promotion of Unregulated Schemes) Regulations
1991) to any person in the United Kingdom the scheme described in the
Prospectus if that person is of a kind described either in Section 76(2) of
the Financial Services Act 1986 or in Regulation 1.04 of the Financial
Services (Promotion of Unregulated Schemes) Regulations 1991.
13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original but
all such counterparts shall together constitute one and the same Agreement.
14. Applicable Law. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
The Transferor and the Company hereby submit to the
nonexclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of
or relating to this Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Transferor
and the Company one of the counterparts hereof, whereupon it will become a
binding agreement between the Transferor, the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
TARGET RECEIVABLES CORPORATION
By
Name:
Title:
TARGET CORPORATION
By
Name:
Title:
Acting on behalf of itself and as the Representative of the several
Underwriters.
[Lead Underwriter]
By
Name:
Title:
SCHEDULE A
Underwriters Principal
-----------
Amount of
Certificates
[Lead Underwriter]............................................ $
............................................
............................................
Total ....................................... $
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