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Exhibit 10(B)
TARGET CREDIT CARD OWNER TRUST 2008-1
Floating Rate Asset-Backed Notes
INDENTURE
Dated as of May 19, 2008
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Indenture Trustee, Securities Intermediary and Transfer Agent
TABLE OF CONTENTS
CROSS REFERENCE TABLE 1
1 Note: This Cross Reference Table shall not, for any purpose, be deemed to be part of this Indenture.
2 N.A. means Not Applicable.
INDENTURE dated as of May 19, 2008, by and between TARGET CREDIT CARD OWNER TRUST 2008-1, a Delaware statutory trust (the “ Issuer ” or “ Owner Trust ”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as indenture trustee (the “ Indenture Trustee ”), securities intermediary and transfer agent and not in its individual capacity.
Each party agrees as follows for the benefit of the other party and for the benefit of the Noteholders:
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date, as Indenture Trustee for the benefit of the Noteholders, all right, title and interest of the Issuer in, to and under the following property whether now owned or hereafter acquired, now existing or hereafter created and wherever located: all accounts, money, chattel paper, investment property, instruments, documents, deposit accounts, letters of credit, commercial tort claims, supporting obligations, general intangibles and goods, including without limitation all of the foregoing and the proceeds thereof, to the extent arising from or relating to (a) the Collateral Certificate; (b) all money, instruments, investment property and other property (together with all earnings, dividends, distributions, income, issues, and profits relating to), distributed or distributable in respect of the Collateral Certificate pursuant to the terms of the Series Supplement, the Pooling and Servicing Agreement or the Deposit and Administration Agreement; (c) all money, investment property, instruments and other property on deposit from time to time in, credited to or related to the Note Distribution Account, and all interest, dividends, earnings, income and other distributions from time to time received, receivable or otherwise distributed to or in respect thereto (including any accrued discount realized on liquidation of any investment purchased at a discount); (d) all rights, remedies, powers, privileges and claims of the Issuer under or with respect to the Collateral Certificate and the Deposit and Administration Agreement (whether arising pursuant to the terms of the Deposit and Administration Agreement or otherwise available to the Issuer at law or in equity), including, without limitation, the rights of the Issuer to enforce the Pooling and Servicing Agreement, the Series Supplement and the Deposit and Administration Agreement, and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to the Pooling and Servicing Agreement, the Series Supplement or the Deposit and Administration Agreement to the same extent as the Issuer could but for the assignment and security interest granted to the Indenture Trustee for the benefit of the Noteholders; (e) all other property of the Issuer; and (f) all present and future claims, demands, causes and choses in action in respect of any or all of the foregoing and all payments on or under and all proceeds of every kind and nature whatsoever in respect of any or all of the foregoing, including all proceeds, products, rents, receipts or profits of the conversion, voluntary or involuntary, into cash or other property, all cash and non-cash proceeds, and other property consisting of, arising from or relating to all or any part of any of the foregoing or any proceeds thereof (collectively, the “ Collateral ”).
The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction except as set forth herein, and to secure compliance with the provisions of this Indenture, all as provided in this Indenture.
The Indenture Trustee, as trustee on behalf of the Noteholders, acknowledges such Grant, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the end that the interests of the Noteholders and (only to the extent expressly provided herein) the Certificateholder may be adequately and effectively protected.
On or before May 19, 2008, the Issuer shall cause the Collateral Certificate with an undated bond power covering such Collateral Certificate, duly executed by the Issuer, and endorsed in blank, to be delivered to the Indenture Trustee, and the Indenture Trustee shall maintain possession of the Collateral Certificate for the benefit of the Noteholders, subject to the terms of this Indenture.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions . The following terms which are defined in the Uniform Commercial Code in the State of Delaware shall have the meanings set forth therein: “certificated security,” “control,” “financial asset,” “entitlement order,” “investment property,” “securities account,” “securities intermediary,” and “security entitlement.” All capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to them in the Pooling and Servicing Agreement or, if not therein, the Series Supplement. Whenever used in this Indenture, the following words and phrases, unless the context otherwise requires, shall have the following meanings:
“ Act ” has the meaning specified in subsection 11.3(a) .
“ Additional Interest ” means with respect to any Distribution Date, an additional amount of interest payable to the Noteholders, to the extent permitted by applicable law, equal to the product of (i) the Interest Rate, (ii) the aggregate amount of Monthly Interest Shortfall remaining unpaid from prior Distribution Dates and (iii) a fraction the numerator of which is the actual number of days in the related Interest Accrual Period and the denominator of which is 360.
“ Additional Notes ” has the meaning specified in subsection 2.2(b) .
“ Additional Issuance Date ” has the meaning specified in subsection 2.2(b) .
“ Administrator ” means TRC, as administrator pursuant to the Deposit and Administration Agreement, and its successors and assigns.
“ Affiliate ” has the meaning specified in the Pooling and Servicing Agreement.
“ Authenticating Agent ” has the meaning specified in subsection 2.8(a) and shall initially be Wells Fargo, and its successors and assigns in such capacity.
“ Authorized Officer ” means any officer of the Owner Trustee, the Administrator or the Servicer, who is authorized to act on behalf of the Owner Trustee, the Administrator or the Issuer, or the Servicer, respectively, and who is identified as such on the list of authorized officers delivered by each such party on the Closing Date as such list may be modified by notice to the other parties.
“ Available Amount ” means, with respect to each Distribution Date (i) prior to the defeasance of the Notes pursuant to Section 2.9 , an amount equal to the amount to be paid in respect of the Collateral Certificate pursuant to Section 5.1 of the Series Supplement on such date and (ii) on and after the date of defeasance of the Notes pursuant to Section 2.9 , the amount required pursuant to Section 8.4 to be deposited into the Note Distribution Account for such Distribution Date.
“ Basic Documents ” means this Indenture, the Deposit and Administration Agreement, the Trust Agreement, the Note Purchase Agreement, the Pooling and Servicing Agreement and the Series Supplement and other documents and certificates delivered in connection therewith.
“ Business Day ” has the meaning specified in the Series Supplement.
“ Carryover Interest ” means, with respect to any Distribution Date, (a) any Monthly Interest due but not paid to the Noteholders on any previous Distribution Date plus (b) any Additional Interest due with respect to such Distribution Date.
“ Certificate ” means the certificate evidencing the beneficial interest in the Issuer, substantially in the form attached to the Trust Agreement as Exhibit A.
“ Certificateholder ” means TRC.
“ Closing Date ” has the meaning specified in the Series Supplement.
“ Code ” has the meaning specified in the Pooling and Servicing Agreement.
“ Collateral ” has the meaning assigned to such term in the Granting Clause hereof.
“ Collateral Certificate ” has the meaning specified in the Series Supplement.
“ Collateral Certificateholder ” means the Issuer, as the holder of the Collateral Certificate.
“ Commission ” has the meaning specified in the Pooling and Servicing Agreement.
“ Corporate Trust Office ” means the principal corporate trust office of the Indenture Trustee, which as of the date hereof is located at Sixth and Marquette, MAC: N9311-161 Minneapolis, Minnesota 55479, Attention: Corporate Trust Administration, or the corporate trust office of the Owner Trustee, as applicable.
“ Default ” means any occurrence that is, or with notice or the lapse of time or both would become, an Event of Default.
“ Defeasance Covered Amount ” means, with respect to any Interest Accrual Period within the Defeasance Period, the product of (a) the Interest Rate in effect with respect to such Interest Accrual Period, (b) a fraction the numerator of which is the actual number of days in such Interest Accrual Period and the denominator of which is 360, and (c) the Note Principal Balance as of the first day of such Interest Accrual Period.
“ Defeasance Period ” means the period commencing on (and including) the date of the deposit, if any, to be made into the Note Principal Funding Account and the Noteholder Reserve Account pursuant to Section 2.9 and ending on the Series 2008-1 Termination Date.
“ Deposit and Administration Agreement ” means the Deposit and Administration Agreement, dated as of May 19, 2008, between TRC, as Depositor and Administrator, and the Issuer, as the same may be amended, supplemented or otherwise modified from time to time.
“ Depositor ” means TRC in its capacity as Depositor under the Trust Agreement.
“ Distribution Date ” has the meaning specified in the Series Supplement.
“ Early Amortization Commencement Date ” has the meaning specified in the Series Supplement.
“ Early Amortization Event ” means a Series 2008-1 Early Amortization Event, as defined in the Series Supplement, or any of the events specified as such in Section 9.1 of the Pooling and Servicing Agreement.
“ Early Amortization Period ” has the meaning specified in the Series Supplement.
“ Eligible Deposit Account ” has the meaning specified in the Pooling and Servicing Agreement.
“ Eligible Institution ” has the meaning specified in the Pooling and Servicing Agreement.
“ Eligible Investments ” has the meaning specified in the Pooling and Servicing Agreement.
“ Event of Default ” means an event specified in Section 5.1 .
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.
“ Executive Officer ” means, with respect to any corporation or bank, the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer, President, Executive Vice President, any Vice President, the Secretary or the Treasurer of such corporation or bank, and with respect to any partnership, any general partner thereof.
“ Grant ” means mortgage, pledge, bargain, sell, warrant, alienate, remise, release, convey, assign, transfer, create, and grant a lien upon and a security interest in and right of set-off against, deposit, set over and confirm pursuant to this Indenture. A Grant of the Owner Trust Estate or of any other agreement or instrument shall include all rights, powers and options (but none of the obligations) of the Granting party thereunder, including the immediate and continuing right to claim for, collect, receive and give receipt for principal and interest payments and all other moneys payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring Proceedings in the name of the Granting party or otherwise and generally to do and receive anything that the Granting party is or may be entitled to do or receive thereunder or with respect thereto.
“ Holder ” means, unless the context otherwise requires, the Certificateholder or any Noteholder.
“ Indenture Trustee ” means Wells Fargo, in its capacity as indenture trustee pursuant to this Indenture.
“ Independent ” means, when used with respect to any specified Person, that the Person (a) is in fact independent of the Issuer, any other obligor upon the Notes, the Depositor and any Affiliate of any of the foregoing Persons, (b) does not have any direct financial interest or any material indirect financial interest in the Issuer, any such other obligor, the Depositor or any Affiliate of any of the foregoing Persons and (c) is not connected with the Issuer, any such other obligor, the Depositor or any Affiliate of any of the foregoing Persons as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions.
“ Independent Certificate ” means a certificate or opinion to be delivered to the Indenture Trustee under the circumstances described in, and otherwise complying with, the applicable requirements of Section 11.1 , made by an Independent appraiser or other expert appointed by the Issuer and approved by the Indenture Trustee in the exercise of reasonable care, and such opinion or certificate shall state that the signer has read the definition of “Independent” in this Indenture and that the signer is Independent within the meaning thereof.
“ Insolvency Event ” means, for a specified Person, (a) the filing of a decree or order for relief by a court having jurisdiction in the premises in respect of such Person or any substantial part of its property in an involuntary case under any applicable Federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver (including any receiver appointed under the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended), liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or ordering the winding-up or liquidation of such Person’s affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or (b) the commencement by such Person of a voluntary case under any applicable Federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by such Person to the entry of an order for relief in an involuntary case under any such law, or the consent by such Person to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or the
making of such Person of any general assignment for the benefit of creditors, or the failure by such Person generally to pay its debts as such debts become due, or the taking of action by such Person in furtherance of any of the foregoing.
“ Interest Accrual Period ” has the meaning specified in the Series Supplement.
“ Interest Rate ” means, with respect to any Interest Accrual Period, a per annum rate equal to LIBOR, as determined on the related LIBOR Determination Date, plus (x) for each Interest Accrual Period through and including the earlier of (i) the Interest Accrual Period beginning on April 25, 2013 and (ii) the Interest Accrual Period related to the first Special Payment Date, 0.65% and (y) for each Interest Accrual Period thereafter, 2.28%.
“ Invested Amount ” has the meaning specified in the Series Supplement.
“ Issuer ” means Target Credit Card Owner Trust 2008-1, a Delaware statutory trust created under the Trust Agreement.
“ Issuer Accounts ” means each of the Note Distribution Account, the Note Principal Funding Account and the Noteholder Reserve Account.
“ Issuer Order ” and “ Issuer Request ” means a written order or request signed in the name of the Issuer by any of its Authorized Officers and delivered to the Indenture Trustee and the Paying Agent.
“ Legal Maturity Date ” means the May 25, 2016 Distribution Date.
“ LIBOR ” means, with respect to any Interest Accrual Period, the London Interbank Offered Rate indexed to the offered rates for one-month United States dollar deposits determined by the Indenture Trustee for each Interest Accrual Period in accordance with the provisions of subsection 2.12(a) .
“ LIBOR Determination Date ” means (a) for the first Interest Accrual Period, May 15, 2008 and (b) for each subsequent Interest Accrual Period, the second Business Day prior to the commencement of such subsequent Interest Accrual Period.
“ Lien ” means a security interest, lien, charge, pledge or encumbrance of any kind other than tax liens, mechanics’ liens or any other liens that attach by operation of law.
“ Master Trust ” means the Target Credit Card Master Trust created pursuant to the Pooling and Servicing Agreement.
“ Master Trust Trustee ” means Wells Fargo, as trustee under the Pooling and Servicing Agreement and each successor to Wells Fargo in the same capacity.
“ Monthly Interest ” has the meaning specified in the Series Supplement.
“ Monthly Interest Shortfall ” means, with respect to each Distribution Date, an amount equal to the excess, if any, of (x) the Monthly Interest for the related Interest Accrual
Period over (y) the amount available to be paid to the Noteholders in respect of interest on such Distribution Date.
“ Monthly Period ” has the meaning specified in the Series Supplement.
“ Moody’s ” means Moody’s Investors Service, Inc., and its successors and assigns.
“ Notes ” means the Issuer’s Floating Rate Asset-Backed Notes (including any Additional Notes) issued and delivered pursuant to this Indenture.
“ Note Distribution Account ” means the account designated as such, established and maintained pursuant to Section 8.2 .
“ Note Initial Principal Balance ” means $3,825,000,000.
“ Note Interest Requirement ” means, with respect to any Distribution Date, the sum of (a) the Monthly Interest for such Distribution Date and (b) the amount of any unpaid Carryover Interest.
“ Note Principal Balance ” means, with respect to any date, an amount equal to the excess of (a) (i) the Note Initial Principal Balance, plus (ii) the aggregate principal amount of Additional Notes issued prior to such date minus (iii) the Principal Payment Adjustment for such date or any prior date over (b) an amount equal to the sum of (i) the aggregate amount of any principal payments made to the Noteholders pursuant to subsection 2.6(a) prior to such date, plus (ii) the aggregate principal amount of Notes acquired by the Issuer or the Depositor for cancellation pursuant to Section 2.7 .
“ Note Principal Due Date ” means any of (a) the Legal Maturity Date and (b) the date on which the Owner Trust Estate is liquidated following an Event of Default and acceleration of the Notes.
“ Note Principal Funding Account ” means the account designated as such, established and maintained pursuant to Section 8.2 .
“ Note Purchase Agreement ” means the Note Purchase Agreement, dated as of May 5, 2008, by and among TRC, Target, BOTAC, Inc. and Chase Bank USA, National Association, as the same may be amended, supplemented or otherwise modified from time to time.
“ Note Purchaser ” means BOTAC, Inc., a Nevada corporation, for so long as all Notes are held by one or more of BOTAC, Inc. or an Affiliate that is a wholly-owned direct or indirect subsidiary of Chase Bank USA, National Association or JPMorgan Chase & Co.
“ Note Register ” means the register maintained pursuant to subsection 2.3(a) .
“ Note Registrar ” means the registrar appointed pursuant to subsection 2.3(a) .
“ Noteholder ” means the Person in whose name Notes are registered on the Note Register.
“ Noteholders’ Principal Distributable Amount ” means, with respect to any Distribution Date on and after the earlier to occur of (i) the June 25, 2013 Distribution Date, (ii) the first Special Payment Date and (iii) any Note Principal Due Date, the lesser of (a) the Note Principal Balance on such Distribution Date and (b) the amounts available pursuant to subsection 5.1(b) of the Series Supplement.
“ Noteholder Reserve Account ” means the account designated as such, established and maintained pursuant to Section 8.2 .
“ Officer’s Certificate ” means a certificate signed by the chairman of the board, the president, the treasurer, the controller, any executive or senior vice president or any vice president of the Depositor, the Administrator (on behalf of itself or the Issuer), or the Servicer, as appropriate, meeting the requirements of Section 11.1 .
“ Opinion of Counsel ” means a written opinion of counsel (who may be counsel to the Depositor, the Administrator or the Servicer) reasonably acceptable in form and substance to the Indenture Trustee, meeting the requirements of Section 11.1 (or in the case of an Opinion of Counsel delivered to the Owner Trustee, reasonably acceptable in form and substance to the Owner Trustee).
“ Outstanding ” means, when used with respect to Notes, as of any date of determination, all Notes theretofore authenticated and delivered under this Indenture except:
(a) Notes theretofore cancelled by the Note Registrar or delivered to the Note Registrar for cancellation;
(b) Notes, the payment for which money in the necessary amount has been theretofore deposited with the Indenture Trustee or any Paying Agent in trust for the related Noteholders ( provided that if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor, satisfactory to the Indenture Trustee, has been made); and
(c) Notes in exchange for or in lieu of other Notes which have been authenticated and delivered pursuant to this Indenture unless proof satisfactory to the Indenture Trustee is presented that any such Notes are held by a bona fide purchaser;
provided that, in determining whether the Holders of the requisite Outstanding Amount of Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder or under any other Basic Document, Notes owned by the Issuer, any other obligor upon the Notes, Target National Bank, Target Capital Corporation, TRC or any Affiliate of any of the foregoing Persons shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Indenture Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes that a Responsible Officer of the Indenture Trustee either actually knows to be so owned or has received written notice that such Notes are so owned shall be so disregarded. Notes so owned that have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Indenture Trustee the pledgee’s right so to act with respect to such Notes and the pledgee is not the Issuer, any other obligor upon the Notes, Target National Bank, Target Capital Corporation, TRC or any Affiliate of any of the foregoing Persons.
“ Outstanding Amount ” means, when used with respect to Notes, as of any date of determination, the aggregate Note Principal Balance of all Notes Outstanding as of such date of determination.
“ Owner Trust Estate ” has the meaning specified in the Trust Agreement.
“ Owner Trustee ” means Wilmington Trust Company, not in its individual capacity but solely as owner trustee under the Trust Agreement, and any successor Owner Trustee thereunder.
“ Paying Agent ” means the Indenture Trustee or any other Person that meets the eligibility standards for the Indenture Trustee specified in Section 6.11 and is authorized by the Indenture Trustee to make the payments to and distributions from the Note Distribution Account as provided in Section 2.10 hereof, including payment of principal of or interest on the Notes on behalf of the Issuer.
“ Person ” has the meaning specified in the Pooling and Servicing Agreement.
“ Pooling and Servicing Agreement ” means the Amended and Restated Pooling and Servicing Agreement, dated as of April 28, 2000, as amended by the Amendment No. 1 thereto, dated as of August 22, 2001, among TRC, the Master Trust Trustee, and the Servicer.
“ Predecessor Note ” means, with respect to any particular Note, every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purpose of this definition, any Note authenticated and delivered under Section 2.4 in lieu of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note.
“ Proceeding ” means any suit in equity, action or law or other judicial or administrative proceeding.
“ Record Date ” has the meaning specified in the Series Supplement.
“ Redemption Date ” means in the case of a redemption of the Notes pursuant to Section 10.1 , the Distribution Date specified by the Administrator pursuant to such Section 10.1 .
“ Redemption Price ” means, with respect to the Notes, the respective Outstanding Amount for such Notes plus accrued and unpaid interest thereon at the applicable Interest Rate on the Distribution Date on which the Transferor exercises its option to repurchase the Collateral Certificate.
“ Reference Banks ” has the meaning specified in the Series Supplement.
“ Responsible Officer ” means any officer within the Corporate Trust Office (or any successor group of the Indenture Trustee) with responsibility for matters covered by this Indenture, including any vice president, assistant vice president, assistant secretary or any other officer or assistant officer of the Indenture Trustee customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom a corporate trust matter relating to this Indenture is referred at the Indenture Trustee’s Corporate Trust Office because of such officer’s knowledge of and familiarity with the particular subject.
“ Revolving Period ” has the meaning specified in the Series Supplement.
“ Reuters Screen LIBOR01 Page ” means the display page so designated on the Reuters Monitor Money Rates (or such other page as may replace that page on that service, or such other service as may be nominated as the information vendor, for the purposes of displaying rates comparable to LIBOR).
“ Securities Intermediary ” has the meaning specified in Section 8.2 .
“ Series Supplement ” means the Series 2008-1 Supplement, dated the date hereof, to the Pooling and Servicing Agreement.
“ Series 2008-1 Termination Date ” has the meaning specified in the Series Supplement.
“ Servicer ” has the meaning specified in the Pooling and Servicing Agreement.
“ Servicer Default ” has the meaning specified in the Pooling and Servicing Agreement.
“ Special Payment Date ” has the meaning specified in the Series Supplement.
“ Standard & Poor’s ” means Standard & Poor’s Ratings Services and its successors and assigns.
“ Target ” has the meaning specified in the Series Supplement.
“ Tax Opinion ” means, with respect to any action taken or proposed to be taken, an Opinion of Counsel to the effect that, for Federal income tax purposes, (i) such action will not adversely affect the tax characterization as debt of the Notes to the extent characterized as debt at the time of their issuance, (ii) following such action neither the Master Trust nor the Issuer will be treated as an association (or publicly traded partnership) taxable as a corporation and (iii) such action will not cause or constitute an event in which gain or loss would be recognized by any Noteholder.
“ Transfer ” means, in respect of any Note, the sale, participation, transfer, assignment, exchange or other pledge or conveyance of such Note in whole or in part.
“ Transfer Agent ” means Wells Fargo, in its capacity as the transfer agent pursuant to subsection 2.3(a) .
“ Transfer Date ” has the meaning specified in the Pooling and Servicing Agreement.
“ Transferor ” has the meaning specified in the Pooling and Servicing Agreement.
“ TRC ” means Target Receivables Corporation, a Minnesota corporation.
“ Trust Agreement ” means the Amended and Restated Trust Agreement, dated as of May 19, 2008, between the Depositor and the Owner Trustee, as the same may be amended, supplemented or otherwise modified from time to time.
“ Trust Indenture Act ” or “ TIA ” means the Trust Indenture Act of 1939 as in force on the date hereof, unless otherwise specifically provided.
“ Wells Fargo ” means Wells Fargo Bank, National Association, a national banking association.
SECTION 1.2 Incorporation by Reference of Trust Indenture Act . Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
“ indenture securities ” means the Notes.
“ indenture security holder ” means a Noteholder.
“ indenture to be qualified ” means this Indenture.
“ indenture trustee ” or “ institutional trustee ” means the Indenture Trustee.
“ obligor ” on the indenture securities means the Issuer and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule have the meaning assigned to them by such definitions.
SECTION 1.3 Usage of Terms . With respect to all terms in this Indenture, the singular includes the plural and the plural the singular; words importing any gender include the other gender; references to “writing” include printing, typing, lithography, and other means of reproducing words in a visible form; references to agreements and other contractual instruments include all subsequent amendments thereto or changes therein entered into in accordance with their respective terms and not prohibited by this Indenture; references to Persons include their permitted successors and assigns; and the term “including” means “including without limitation.” The words “hereof,” “herein,” “hereunder,” and words of similar import when used in this Indenture shall refer to this Indenture as a whole and not to any particular provision of this Indenture. The words “due date” as used herein with respect to interest on and principal of the Notes refer to each Note Principal Due Date, and do not include any Distribution Date following
the Revolving Period unless that date is a Note Principal Due Date. All references herein to Articles, Sections, subsections and Exhibits are references to Articles, Sections, subsections and Exhibits contained in or attached to this Indenture unless otherwise specified, and each such Exhibit is part of the terms of this Indenture.
SECTION 1.4 Calculations of Interest . All calculations of interest made hereunder with respect to the Notes shall be made on the basis of a 360-day year based upon the actual number of days elapsed.
SECTION 2.1 Form . The Notes will be issued in certificated form. The Notes, together with the Indenture Trustee’s or Authenticating Agent’s certificate of authentication, shall be in substantially the form set forth in Exhibit A , with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined to be appropriate by the officers executing such Notes, as evidenced by their execution of the Notes. Any portion of the text of a Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of such Note. Each Note shall be dated the date of its authentication. The Notes shall be issuable as registered notes in minimum denominations of $100,000 and in integral multiples thereof (except, if applicable, for one note representing a residual portion of the Notes which may be issued in a denomination other than an integral multiple of $100,000).
A Note bearing the manual or facsimile signature of individuals who were at any time Authorized Officers of the Issuer shall bind the Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the date of authentication and delivery of such Notes or did not hold such offices at such date. No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Note, a certificate of authentication substantially in the form provided for herein executed by the Indenture Trustee or an Authenticating Agent by the manual or facsimile signature of one of its authorized signatories, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder. The terms of the Notes set forth in Exhibit A are part of the terms of this Indenture.
The Notes shall be word processed, printed, lithographed or engraved or produced by any combination of these methods (with or without steel engraved borders), all as determined by the officers executing such Notes, as evidenced by their execution of such Notes.
SECTION 2.2 Execution, Authentication and Delivery .
(a) The Notes shall be executed on behalf of the Issuer by any of its Authorized Officers. The signature of any such Authorized Officer on the Notes may be manual or facsimile.
The Indenture Trustee shall, upon written order of the Depositor, authenticate and deliver Notes for original issue in an aggregate principal amount of $3,825,000,000. The aggregate principal amount of Notes outstanding at any time may not exceed $4,200,000,000, except as provided in Section 2.4 .
(b) Upon the order of the Depositor, the Indenture Trustee shall authenticate and deliver additional Notes (“ Additional Notes ”) in connection with an increase in the outstanding principal amount of the Collateral Certificate on any date (each, an “ Additional Issuance Date ”) pursuant to Section 4.8 of the Series Supplement and the purchase of Additional Notes pursuant to the terms of the Note Purchase Agreement. The aggregate principal amount of Additional Notes to be issued on any Additional Issuance Date may not exceed the aggregate principal amount of the corresponding increase in the outstanding principal amount of the Collateral Certificate. Upon issuance, the Additional Notes will be identical in all respects (except that the principal amount of such Additional Notes may be different) to the Notes currently outstanding and the Additional Notes will be equally and ratably entitled to the benefits of this Indenture. From and after each Additional Issuance Date, all applicable calculations and allocations required pursuant to this Indenture shall take into account the Additional Notes issued on such date.
The issuance of Additional Notes may be effected only upon satisfaction of the following conditions:
(i) at least three Business Days prior to the issuance thereof, the Depositor shall have provided written notice of the proposed issuance of Additional Notes to the Indenture Trustee, the Servicer and the Note Purchaser specifying the date and terms of the additional issuance;
(ii) the conditions precedent for increasing the principal amount of the Collateral Certificate pursuant to Section 4.8 of the Series Supplement shall have been satisfied and the principal amount of the Collateral Certificate shall have been increased by an amount equal to the aggregate principal amount of the Additional Notes proposed to be issued; and
(iii) (x) if after giving effect to the purchase of Additional Notes on the Additional Issuance Date, the Note Principal Balance does not exceed the Note Initial Principal Balance, the Depositor shall have delivered to the Indenture Trustee an Officer’s Certificate to the effect that the Depositor reasonably believes that no Event of Default shall have occurred, or been deemed to have occurred, and be continuing as of the Additional Issuance Date and the issuance of Additional Notes shall not result in the occurrence (or deemed occurrence) of an Event of Default; and (y) if after giving effect to the purchase of Additional Notes on the Additional Issuance Date, the Note Principal Balance shall exceed the Note Initial Principal Balance, the Depositor shall have delivered to the Indenture Trustee an Officer’s Certificate to the effect that the Depositor reasonably believes that (I) the issuance of the Additional Notes will not have a material adverse effect on the Outstanding Notes and (II) no Event of Default shall have occurred, or been deemed to have occurred, and be continuing as of the Additional Issuance Date and the issuance of Additional Notes shall not result in the occurrence (or deemed
occurrence) of an Event of Default; provided, however, that, for the purposes of making this determination, a dilution of voting rights will not constitute a material adverse effect on the Outstanding Notes.
SECTION 2.3 Registration of Transfer and Exchange .
(a) The Issuer shall cause to be kept a register (the “ Note Register ”) in which, subject to such reasonable regulations as it may prescribe, the Note Registrar shall provide for the registration of the Notes and the registration of transfers of the Notes. The Indenture Trustee shall initially be “ Note Registrar ” for the purpose of registering Notes and transfers of Notes as herein provided. In the event that, subsequent to the date of issuance of the Notes, the Indenture Trustee notifies the Issuer that it is unable to act as Note Registrar, the Issuer shall appoint another bank or trust company, having an office or agency located in the City of New York or the City of Minneapolis and which agrees to act in accordance with the provisions of this Indenture applicable to it, to act, as successor Note Registrar under this Indenture.
If a Person other than the Indenture Trustee is appointed by the Issuer as the Note Registrar, the Issuer will give the Indenture Trustee prompt written notice of the appointment of such Note Registrar and of the location, and any change in the location, of the Note Register, and the Indenture Trustee shall have the right to inspect the Note Register at all reasonable times and to obtain copies thereof, and the Indenture Trustee shall have the right to conclusively rely upon a certificate executed on behalf of the Note Registrar by an Executive Officer thereof as to the names and addresses of the Noteholders and the principal amounts and number of the Notes.
An institution succeeding to the corporate agency business of the Note Registrar shall continue to be the Note Registrar without the execution or filing of any paper or any further act on the part of the Indenture Trustee or such Note Registrar.
The Note Registrar shall maintain in the City of Minneapolis an office or offices or agency or agencies where Notes may be surrendered for registration of transfer or exchange. The Note Registrar initially designates its corporate trust office located at Sixth and Marquette, MAC N9311-161 Minneapolis, Minnesota 55479, Attention: Corporate Trust Administration as its office for such purposes. The Note Registrar shall give prompt written notice to the Indenture Trustee, the Depositor, the Administrator and the Noteholders (other than the Depositor) of any change in the location of such office or agency.
Upon surrender for registration of transfer of any Note at the office or agency of the Issuer to be maintained as provided in Section 3.2 , if the requirements of Section 8-401(a) of the relevant UCC are met, the Issuer shall execute, the Indenture Trustee shall upon receipt of a written order from the Issuer authenticate and (if the Note Registrar is different from the Indenture Trustee, then the Note Registrar shall) deliver to the Noteholder, in the name of the designated transferee or transferees, one or more new Notes, in any authorized denominations and a like aggregate principal amount.
At the option of the Noteholders, Notes may be exchanged for other Notes in any authorized denominations, of the same class and a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any Notes are so surrendered for exchange, if the requirements of Section 8-401(a) of the relevant UCC are met, the Issuer shall execute and the Indenture Trustee shall authenticate and (if the Note Registrar is different from the Indenture Trustee, then the Note Registrar shall) deliver to the Noteholder, the Notes which the Noteholder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of the Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or exchange shall be (i) duly endorsed by, or be accompanied by a written instrument of Transfer in form satisfactory to the Indenture Trustee duly executed by, the Noteholder or such Noteholder’s attorney duly authorized in writing, with such signature guaranteed by a commercial bank or trust company located, or having a correspondent located, in the City of New York, the City of Minneapolis or the city in which the Corporate Trust Office is located, or by a member firm of a national securities exchange, and (ii) accompanied by such other documents as the Indenture Trustee may require. Each Note surrendered for registration of transfer or exchange shall be cancelled by the Note Registrar and disposed of by the Indenture Trustee or Note Registrar in accordance with its customary practice. The Note Registrar shall notify promptly the Transfer Agent of any Transfer of the Notes pursuant to this Section 2.3 .
No service charge shall be made to a Noteholder for any registration of transfer or exchange of the Notes, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes, other than exchanges of Notes pursuant to Section 9.5 not involving any Transfer.
The preceding provisions of this Section notwithstanding, the Issuer shall not be required to make, and the Note Registrar need not register, Transfers of the Notes selected for redemption or of any Note for a period of 15 days preceding the due date for any payment in full with respect to such Note.
The Issuer hereby appoints the Indenture Trustee as the Transfer Agent and the Indenture Trustee accepts such appointment.
(b) The Notes may be Transferred, unless such Transfer would violate any of the restrictions set forth in this subsection 2.3(b) . No Transfer may be made unless such Transfer is made (x) either (i) pursuant to an effective registration under the Securities Act of 1933, as amended (the “ Securities Act ”) and applicable state securities or “Blue Sky” laws or (ii) in a transaction exempt from the registration requirements of the Securities Act and applicable state securities or “Blue Sky” laws and (y) to (1) a person who the transferor reasonably believes is a Qualified Institutional Buyer (a “ QIB ”) within the meaning thereof in Rule 144A under the Securities Act that is aware that the resale or other transfer is being made in reliance on Rule 144A or (2) a person who is an accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act. The Notes may not be Transferred to (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA), including governmental plans and church plans, (b) any
“plan” (as defined in Section 4975(e)(1) of the Code) including individual retirement accounts and Keogh plans, or (c) any other entity whose underlying assets include “plan assets” (within the meaning of Department of Labor Regulation Section 2510.3-101, 29 C.F.R. § 2510.3-101 or otherwise under ERISA) by reason of a plan’s investment in the entity, including, without limitation, an insurance company general account.
Each potential transferee shall be required to represent that it is not a retail competitor of Target. Prior to any Transfer, the Noteholder must obtain the prior written consent of the Transferor (which consent shall not be unreasonably withheld, it being understood that it would be reasonable for the Transferor to withhold consent if a proposed Transfer would cause the Issuer or the Master Trust to be treated as an association (or publicly traded partnership) taxable as a corporation), except that such consent shall not be required if the Transfer is to JPMorgan Chase & Co. or a wholly-owned subsidiary of JPMorgan Chase & Co. Each Transfer shall be subject to the prior delivery to the Indenture Trustee of (1) an Opinion of Counsel to the effect that, for U.S. federal income tax purposes, (i) such action will not adversely affect the tax characterization as debt of the Notes or the Investor Certificates of any outstanding Series or Class that were characterized as debt at the time of their issuance and (ii) following such action neither the Owner Trust nor the Master Trust will be treated as an association (or publicly traded partnership) taxable as a corporation and (2) a transferee representation letter substantially in the form of Exhibit B hereto.
Without limiting the generality of the foregoing, the parties hereto acknowledge and agree that no pledge of the Notes to a Federal Reserve Bank shall require either the consent of the Transferor or the delivery of an Opinion of Counsel. The Notes shall bear legends to the effect set forth in Exhibit A .
None of the Transferor, the Transfer Agent and Note Registrar, the Owner Trustee or the Indenture Trustee is obligated to register the Note under the Securities Act or any other securities or “Blue Sky” law or to take any other action not otherwise required under this Indenture, the Series Supplement or the Pooling and Servicing Agreement to permit the transfer of the Note without registration or as described above.
SECTION 2.4 Mutilated, Destroyed, Lost or Stolen Notes . If (i) any mutilated Note is surrendered to the Note Registrar, or the Note Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Note, and (ii) there is delivered to the Note Registrar and the Indenture Trustee such security or indemnity as may be required by them to hold the Issuer, the Note Registrar and the Indenture Trustee harmless, then, in the absence of notice to the Issuer, the Note Registrar or the Indenture Trustee that such Note has been acquired by a bona fide purchaser, and provided that the requirements of Section 8-405 of the relevant UCC are met, the Issuer shall execute and the Indenture Trustee or an Authenticating Agent shall authenticate and (if the Note Registrar is different from the Indenture Trustee, the Note Registrar shall) deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement Note of like tenor and denomination; provided that if any such destroyed, lost or stolen Note, but not a mutilated Note, shall have become or within seven days shall be due and payable, or shall have been called for redemption, instead of issuing a replacement Note, the Issuer may pay such destroyed, lost or stolen Note when so due or payable or upon the Redemption Date without surrender thereof.
Upon the issuance of any replacement Note under this Section, the Issuer may require the payment by the related Noteholder of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the fees and expenses of the Indenture Trustee, its agents and counsel) connected therewith.
Every replacement Note issued pursuant to this Section 2.4 in replacement of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuer, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.5 Persons Deemed Owner . Prior to due presentment for registration of Transfer of any Note, the Issuer, the Indenture Trustee, the Note Registrar and any agent of the Issuer, the Indenture Trustee or the Note Registrar may treat the Person in whose name such Note is registered (as of the day of determination) as the owner of such Note for the purpose of receiving payments of principal of and interest, if any, on such Note and for all other purposes whatsoever, whether or not such Note shall be overdue, and neither the Issuer, the Indenture Trustee or the Note Registrar nor any agent of the Issuer, the Indenture Trustee or the Note Registrar shall be bound by notice to the contrary.
SECTION 2.6 Payment of Principal and Interest . (a) On each Distribution Date, the Paying Agent, acting in accordance with written instructions from the Administrator, shall deposit, or shall direct the Master Trust Trustee to deposit, in the Note Distribution Account the Available Amount for such Distribution Date and the Paying Agent shall make the following distributions to the extent of the Available Amount for such Distribution Date, in the following order of priority:
(i) to the Noteholders in respect of interest, the Note Interest Requirement for such Distribution Date;
(ii) to the Noteholders in respect of principal, the Noteholders’ Principal Distributable Amount for such Distribution Date; and
(iii) to the Certificateholder, on behalf of the Issuer, the remaining Available Amount for such Distribution Date, if any;
provided , however , that the aggregate amounts payable under clause (i) on any Distribution Date shall not exceed the aggregate amounts distributable to the Collateral Certificateholder pursuant to subsection 5.1(a) of the Series Supplement in respect of interest for such Distribution Date; and, provided , further , that (A) so long as the Indenture Trustee and the Master Trust Trustee are the same Person, the distributions described above may be made directly by the Master Trust Trustee in lieu of being deposited into the Note Distribution Account and, if so made, such distributions shall be
deemed to be made by the Paying Agent from the Note Distribution Account and (B) amounts distributed directly to the Depositor, as Certificateholder, pursuant to subsection 5.1(e) of the Series Supplement shall be deemed to have been deposited by the Master Trust Trustee into the Note Distribution Account and distributed by the Paying Agent to the Depositor in its respective capacities as provided above.
(b) All principal and interest in respect of the Notes shall be due and payable to the extent not previously paid on the Legal Maturity Date.
(c) Any installment of principal or interest, if any, payable on any Note which is punctually paid or duly provided for by the Issuer on the applicable Distribution Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered on the preceding Record Date, by check mailed first-class, postage prepaid or by wire transfer in immediately available funds to the account designated by such nominee, except for the final installment of principal payable with respect to such Note and except for the Redemption Price for any Note called for redemption pursuant to Section 10.1 , which shall be payable as provided in subsection 2.6(d) below. The funds represented by any such checks returned undelivered shall be held in accordance with Section 3.3 .
(d) All principal and interest payments on the Notes shall be made pro rata to the Noteholders entitled thereto. The Paying Agent shall notify the Person in whose name a Note is registered at the close of business on the Record Date immediately preceding the Distribution Date on which the Issuer expects that the final installment of principal of and interest on such Note will be paid. Such notice shall be mailed as provided in Section 10.2 not later than three Business Days after such Record Date if the Notes are outstanding and shall specify that such final installment will be payable only upon presentation and surrender of such Note and shall specify the place where such Note may be presented and surrendered for payment of such installment.
SECTION 2.7 Cancellation . All Notes surrendered for payment, registration of transfer, exchange or redemption shall, if surrendered to any Person other than the Note Registrar, be delivered to the Note Registrar and shall be promptly cancelled by the Note Registrar. The Issuer or the Depositor may at any time deliver to the Note Registrar for cancellation any Notes previously authenticated and delivered hereunder which the Issuer or the Depositor may have acquired in any manner whatsoever, including pursuant to subsection 17(a) of the Note Purchase Agreement, and all Notes so delivered shall be promptly cancelled by the Note Registrar. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Notes may be held or disposed of by the Note Registrar in accordance with its standard retention or disposal policy as in effect at the time unless the Issuer shall direct that they be destroyed or returned to it; provided that such direction is timely and the Notes have not been previously disposed of by the Note Registrar.
SECTION 2.8 Authenticating Agent . (a) The Indenture Trustee may appoint one or more authenticating agents (each, an “ Authenticating Agent ”) with respect to the Notes which shall be authorized to act on behalf of the Indenture Trustee in authenticating the Notes in connection with the issuance, delivery, registration of transfer, exchange or repayment of the
Notes. The Indenture Trustee is hereby appointed as initial Authenticating Agent for the authentication of the Notes upon any registration of transfer or exchange of such Notes. Whenever reference is made in this Indenture to the authentication of the Notes by the Indenture Trustee or the Indenture Trustee’s certificate of authentication, such reference shall be deemed to include authentication on behalf of the Indenture Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Indenture Trustee by an Authenticating Agent.
(b) Any institution succeeding to the corporate agency business of an Authenticating Agent shall continue to be an Authenticating Agent without the execution or filing of any paper or any further act on the part of the Indenture Trustee or such Authenticating Agent.
(c) An Authenticating Agent may at any time resign by giving written notice of resignation to the Indenture Trustee and the Issuer. The Indenture Trustee may at any time terminate the agency of an Authenticating Agent by giving notice of termination to such Authenticating Agent and to the Issuer. Upon receiving such a notice of resignation or upon such a termination, or in case at any time an Authenticating Agent shall cease to be acceptable to the Indenture Trustee or the Issuer, the Indenture Trustee promptly may appoint a successor Authenticating Agent with the consent of the Issuer. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless acceptable to the Issuer.
(d) The Administrator shall pay the Authenticating Agent from time to time reasonable compensation for its services under this Section 2.8 .
(e) The provisions of Sections 6.1 , 6.2 , 6.3 , 6.4 , 6.7 and 6.9 shall be applicable, mutatis mutandis , to any Authenticating Agent.
(f) Pursuant to an appointment made under this Section 2.8 , the Notes may have endorsed thereon, in lieu of the Indenture Trustee’s certificate of authentication, an alternate certificate of authentication in substantially the following form:
This is one of the Notes referred to in the within mentioned Indenture.
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee
SECTION 2.9 Defeasance . On any date on which the following conditions have been satisfied, the Notes will no longer be entitled to the security interest of the Indenture Trustee in the Issuer’s right, title and interest in and to the Collateral Certificate (including amounts distributable by the Master Trust Trustee in respect thereof) and the Collateral Certificate shall be released from the Lien of this Indenture: (i) the Issuer has deposited (x) into the Note Principal Funding Account an amount equal to the Note Principal Balance, (y) into the Noteholder Reserve Account an amount equal to the Note Interest Requirement for the first Distribution Date in the Defeasance Period and (z) if such deposit occurs prior to an Early Amortization Commencement Date, into the Noteholder Reserve Account an amount equal to the Defeasance Covered Amount, as estimated by the Administrator, for each Interest Accrual Period in the Defeasance Period (other than the Interest Accrual Period related to the first Distribution Date therein); (ii) the Issuer has delivered to the Indenture Trustee an opinion of counsel to the effect that such deposit and termination of obligations as described above will not result in the Issuer being required to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and an opinion of counsel to the effect that following such deposit none of the Issuer, the Noteholder Reserve Account or the Note Principal Funding Account will be deemed to be an association (or a publicly traded partnership) taxable as a corporation; (iii) the Issuer has delivered to the Indenture Trustee a certificate (which may be a certificate from an officer of the Depositor) stating that the Issuer (or the Depositor) reasonably believes that such deposit and the release of the lien of the Indenture Trustee on the Collateral Certificate will not cause an Event of Default or a Default to occur and (iv) the Note Purchaser has consented to such defeasance pursuant to subsection 8(e) of the Note Purchase Agreement; provided , that in any case, the Noteholders shall not retain any rights under either of the Pooling and Servicing Agreement or the Series Supplement if the Notes are defeased pursuant to this Section 2.9 , subject to Section 12.4 of the Pooling and Servicing Agreement; provided, further , that in any case, the Noteholders shall not retain any rights under the Note Purchase Agreement if the Notes are defeased pursuant to this Section 2.9 , except as set forth in subsection 8(e) of the Note Purchase Agreement.
SECTION 2.10 Appointment of Paying Agent . (a) The Indenture Trustee may appoint a Paying Agent with respect to the Notes. The Indenture Trustee is hereby appointed as the initial Paying Agent. The Paying Agent shall have the revocable power to withdraw funds from the Note Distribution Account and make distributions to the Noteholders and the Certificateholders, pursuant to Section 2.6 . The Indenture Trustee may revoke such power and remove the Paying Agent if the Indenture Trustee determines in its sole discretion that the Paying Agent shall have failed to perform its obligations under this Indenture in any material respect or for other good cause. The Indenture Trustee may resign as Paying Agent upon 30 days’ prior written notice to the Depositor. In the event that the Indenture Trustee shall no longer be the Paying Agent, the Indenture Trustee shall appoint a successor to act as Paying Agent (which shall be a bank or trust company and may be a successor Indenture Trustee) with the consent of the Depositor, which consent shall not be unreasonably withheld. If at any time
the Indenture Trustee shall be acting as the Paying Agent, the provisions of Sections 6.1 , 6.3 and 6.4 shall apply, mutatis mutandis , to the Indenture Trustee in its role as Paying Agent.
The Indenture Trustee will cause each Paying Agent, other than itself, to execute and deliver to the Indenture Trustee an instrument in which such Paying Agent shall agree with the Indenture Trustee (and if the Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with respect to the Notes in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the Issuer (or any other obligor upon the Notes) of which it has actual knowledge in the making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default, upon the written request of the Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the Indenture Trustee all sums held by it in trust for the payment of the Notes if at any time it ceases to meet the standards required to be met by the Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to the withholding from any payments made by it on any Notes of any applicable withholding taxes imposed thereon and with respect to any applicable reporting requirements in connection therewith.
(b) An institution succeeding to the corporate agency business of the Paying Agent shall continue to be the Paying Agent without the execution or filing of any paper or any further act on the part of the Indenture Trustee or such Paying Agent.
SECTION 2.11 CUSIP Numbers . The Issuer in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if so, the Indenture Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Noteholders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Indenture Trustee of any change in the “CUSIP” numbers.
SECTION 2.12 Determination of LIBOR .
(a) On each LIBOR Determination Date, the Indenture Trustee shall determine LIBOR on the basis of the rate for deposits in United States dollars for a one-month
period which appears on Reuters Screen LIBOR01 Page or on such comparable system as is customarily used to quote LIBOR as of 11:00 a.m., London time, on such date. If such rate does not appear on Reuters Screen LIBOR01 Page or on such comparable system as is customarily used to quote LIBOR, the rate for that LIBOR Determination Date shall be determined on the basis of the rates at which deposits in United States dollars are offered by the Reference Banks at approximately 11:00 a.m., London time, on that day to prime banks in the London interbank market for a one-month period. The Indenture Trustee shall request the principal London office of each of the Reference Banks to provide a quotation of its rate. If at least two such quotations are provided, the rate for that LIBOR Determination Date will be the arithmetic mean of the quotations. If fewer than two quotations are provided as requested, the rate for that LIBOR Determination Date will be the arithmetic mean of the rates quoted by major banks in New York City, selected by the Servicer, at approximately 11:00 a.m., New York City time, on that day for loans in United States dollars to leading European banks for a one-month period.
Notwithstanding the foregoing, LIBOR for the initial Interest Accrual Period will be 2.49750%.
(b) The Indenture Trustee shall provide the Interest Rate applicable to the then current and immediately preceding Interest Accrual Periods to any Noteholder requesting such information by telephoning the Indenture Trustee at its telephone number which is currently (612) 667-8058.
(c) On each LIBOR Determination Date prior to 12:00 noon New York City time, the Indenture Trustee shall send to the Issuer, the Servicer and the Master Trust Trustee by electronic mail or facsimile notification of LIBOR for the following Interest Accrual Period.
SECTION 3.1 Payment of Principal and Interest . The Issuer will duly and punctually pay the principal of and interest on the Notes in accordance with the respective terms of the Notes and this Indenture. Without limiting the foregoing, the Issuer will cause to be distributed all amounts on deposit in the Note Distribution Account on a Distribution Date deposited therein pursuant to Section 2.6 and the Series Supplement (i) for the benefit of the Notes, to the Noteholders and (ii) to the extent so specified, to the Certificateholder. Amounts properly withheld under the Code by any Person from a payment to any Noteholder of principal and/or interest shall be considered as having been paid by the Issuer to such Noteholder for all purposes of this Indenture.
SECTION 3.2 Maintenance of Office or Agency . The Issuer will maintain in the City of Minneapolis an office or agency where Notes may be surrendered for registration of transfer or exchange. The Issuer hereby initially appoints the Note Registrar to serve as its agent for the foregoing purposes. The Issuer will give prompt written notice to the Indenture Trustee of the location, and of any change in the location, of any such office or agency. If at any time the
Issuer shall fail to maintain any such office or agency or shall fail to furnish the Indenture Trustee with the address thereof, such surrenders, notices and demands may be made or served at the Corporate Trust Office, and the Issuer hereby appoints the Indenture Trustee as its agent to receive all such surrenders, notices and demands.
SECTION 3.3 Money for Payments To Be Held in Trust . As provided in Section 8.2 , all payments of amounts due and payable with respect to any Notes that are to be made from amounts withdrawn from the Note Distribution Account shall be made on behalf of the Issuer by the Indenture Trustee or by a Paying Agent, and no amounts so withdrawn from the Note Distribution Account or payments on the Notes shall be paid over to the Issuer except as provided in this Section 3.3 .
On or before each Distribution Date and Redemption Date, subject to the proviso to subsection 2.6(a) , the Master Trust Trustee or the Paying Agent shall deposit or cause to be deposited in the Note Distribution Account the Available Amount, such sum to be held in trust for the benefit of the Persons entitled thereto and (unless the Paying Agent is the Indenture Trustee) shall promptly notify the Indenture Trustee of its action or failure so to act.
The Issuer may, at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, direct any Paying Agent to pay to the Indenture Trustee all sums held in trust by such Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts as those upon which the sums were held by such Paying Agent; and upon such a payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to the escheat of funds, any money held by the Indenture Trustee or any Paying Agent in trust for the payment of any amount due with respect to any Note and remaining unclaimed for two years after such amount has become due and payable shall be discharged from such trust and be paid to the Issuer on its request; and the related Noteholder shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof (but only to the extent of the amounts so paid to the Issuer), and all liability of the Indenture Trustee or such Paying Agent with respect to such trust money shall thereupon cease; provided that the Indenture Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense of the Issuer cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Issuer. The Indenture Trustee shall also adopt and employ, at the expense of the Issuer, any other reasonable means of notification of such repayment (including, but not limited to, mailing notice of such repayment to the Noteholders whose Notes have been called but have not been surrendered for redemption or whose right to or interest in moneys due and payable but not claimed is determinable from the records of the Indenture Trustee or of any Paying Agent, at the last address of record for each such Noteholder).
SECTION 3.4 Existence . Except as otherwise permitted by the provisions of Section 3.10, the Issuer will keep in full effect its existence, rights and franchises as a statutory
trust under the laws of the State of Delaware (unless it becomes, or any successor to the Issuer hereunder is or becomes, organized under the laws of any other state or of the United States of America, in which case the Issuer will keep in full effect its existence, rights and franchises under the laws of such other jurisdiction) and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Indenture, the Notes, the Collateral and each other instrument and agreement included in the Owner Trust Estate.
SECTION 3.5 Protection of Owner Trust Estate . The Issuer will from time to time prepare (or shall cause to be prepared), execute and deliver all such supplements and amendments hereto and all such financing statements, continuation statements, instruments of further assurance and other instruments, and will take such other action necessary or advisable to:
(a) maintain or preserve the lien and security interest (and the priority thereof) of this Indenture or carry out more effectively the purposes hereof;
(b) perfect, publish notice of or protect the validity of any Grant made or to be made by this Indenture;
(c) enforce the rights of the Indenture Trustee and the Noteholders in any of the Collateral; or
(d) preserve and defend title to the Owner Trust Estate and the rights of the Indenture Trustee and the Noteholders in such Owner Trust Estate against the claims of all persons and parties.
The Issuer hereby designates the Indenture Trustee its agent and attorney-in-fact to execute any financing statement, continuation statement or other instrument required to be filed by the Indenture Trustee pursuant to this Section.
SECTION 3.6 Opinions as to Owner Trust Estate . (a) On the Closing Date, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording and filing of this Indenture, any indentures supplemental hereto, and any other requisite documents, and with respect to the execution and filing of any financing statements and continuation statements, as are necessary to perfect and make effective the lien and security interest of this Indenture and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to make such lien and security interest effective.
(b) On or before March 31 of each calendar year, commencing with March 31, 2009, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Indenture, any indentures supplemental hereto and any other requisite documents and with respect to the execution and filing of any financing statements and continuation statements as are necessary to maintain the perfection of the lien and security interest created by this Indenture and reciting the details of such action or stating that in the opinion of such counsel no such action is necessary to maintain the perfection of such lien
and security interest. Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Indenture, any indentures supplemental hereto and any other requisite documents and the execution and filing of any financing statements and continuation statements that will, in the opinion of such counsel, be required to maintain the perfection of the lien and security interest of this Indenture until March 31 in the following calendar year.
SECTION 3.7 Performance of Obligations; Servicing of Collateral Certificate . (a) The Issuer will not take any action and will use its best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s material covenants or obligations under any instrument or agreement included in the Owner Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as ordered by any bankruptcy or other court or as expressly provided in this Indenture, any other Basic Documents or such other instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in performing its duties under this Indenture, and any performance of such duties by a Person identified to the Indenture Trustee in an Officer’s Certificate of the Issuer shall be deemed to be action taken by the Issuer. Initially, the Issuer has contracted with the Administrator to assist the Issuer in performing its duties under this Indenture.
(c) The Issuer will punctually perform and observe all of its obligations and agreements contained in this Indenture, in the other Basic Documents and in the instruments and agreements included in the Owner Trust Estate, including but not limited to preparing (or causing to be prepared) and filing (or causing to be filed) all UCC financing statements and continuation statements required to be filed by the terms of this Indenture and the Deposit and Administration Agreement in accordance with and within the time periods provided for herein and therein.
(d) If the Issuer shall have knowledge of the occurrence of a Servicer Default under the Pooling and Servicing Agreement, the Issuer shall promptly notify the Indenture Trustee in accordance with Section 11.4 , and shall specify in such notice the action, if any, the Issuer is taking in respect of such default. If a Servicer Default shall arise from the failure of the Servicer to perform any of its duties or obligations under the Pooling and Servicing Agreement with respect to the Collateral Certificate, the Issuer shall take all reasonable steps available to it to remedy such failure.
SECTION 3.8 Negative Covenants . So long as any Notes are Outstanding, the Issuer shall not:
(a) except as expressly permitted by this Indenture or the other Basic Documents, sell, transfer, exchange or otherwise dispose of any of the properties or assets of the Issuer, including those included in the Owner Trust Estate, unless directed to do so by the Indenture Trustee;
(b) claim any credit on, or make any deduction from the principal or interest payable in respect of, the Notes (other than amounts properly withheld from such
payments under the Code) or assert any claim against any present or former Noteholder by reason of the payment of the taxes levied or assessed upon any part of the Owner Trust Estate; or
(c) (i) permit the validity or effectiveness of this Indenture to be impaired, or permit the lien of this Indenture to be amended, hypothecated, subordinated, terminated or discharged, or permit any Person to be released from any covenants or obligations with respect to the Notes under this Indenture except as may be expressly permitted hereby, (ii) permit any lien, charge, excise, claim, security interest, mortgage or other encumbrance (other than the lien of this Indenture) to be created on or extend to or otherwise arise upon or burden the Owner Trust Estate or any part thereof or any interest therein or the proceeds thereof (other than tax liens, mechanics’ liens and other liens that arise by operation of law) or (iii) permit the lien of this Indenture not to constitute a valid first priority (other than with respect to any such tax, mechanics’ or other lien) security interest in the Owner Trust Estate.
SECTION 3.9 Annual Statement as to Compliance . The Issuer will deliver to the Indenture Trustee on or before March 31 of each year, commencing March 31, 2009 and otherwise in compliance with the requirements of TIA Section 314(a)(4), an Officer’s Certificate stating, as to the Authorized Officer signing such Officer’s Certificate, that:
(a) a review of the activities of the Issuer during such year and of performance under this Indenture has been made under such Authorized Officer’s supervision; and
(b) to the best of such Authorized Officer’s knowledge, based on such review, the Issuer has complied with all conditions and covenants in all material respects under this Indenture throughout such year, or, if there has been a default in the compliance of any such condition or covenant, specifying each such default known to such Authorized Officer and the nature and status thereof.
SECTION 3.10 The Issuer May Consolidate, Etc. Only on Certain Terms .
(a) The Issuer shall not consolidate or merge with or into any other Person, unless all the Noteholders have provided their prior written consent and:
(i) the Person (if other than the Issuer) formed by or surviving such consolidation or merger shall be a Person organized and existing under the laws of the United States of America or any state thereof and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Indenture Trustee, in form satisfactory to the Indenture Trustee, the due and punctual payment of the principal of and interest on all the Notes and the performance or observance of every agreement and covenant of this Indenture on the part of the Issuer to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(iii) the Issuer shall have received an Opinion of Counsel (and shall have delivered copies thereof to the Indenture Trustee) to the effect that such
transaction will not have any material adverse tax consequence to the Issuer or any Noteholder;
(iv) such entity is not subject to regulation as an “investment company” within the meaning of the Investment Company Act of 1940, as amended;
(v) any action as is necessary to maintain the lien and security interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation or merger and such supplemental indenture comply with this subsection 3.10(a) and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act).
(b) Except as otherwise expressly permitted by this Indenture or the other Basic Documents, the Issuer shall not convey or transfer all or substantially all of its properties or assets, including those included in the Owner Trust Estate, to any Person, unless all the Noteholders have provided their prior written consent and:
(i) the Person that acquires by conveyance or transfer the properties and assets of the Issuer the conveyance or transfer of which is hereby restricted shall (A) be a United States citizen or a Person organized and existing under the laws of the United States of America or any state thereof, (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Indenture Trustee, in form satisfactory to the Indenture Trustee, the due and punctual payment of the principal of and interest on all the Notes and the performance or observance of every agreement and covenant of this Indenture on the part of the Issuer to be performed or observed, all as provided herein, (C) expressly agree by means of such supplemental indenture that all right, title and interest so conveyed or transferred shall be subject and subordinate to the rights of the Noteholders, and (D) unless otherwise provided in such supplemental indenture, expressly agree to indemnify, defend and hold harmless the Issuer against and from any loss, liability or expense arising under or related to this Indenture and the Notes;
(ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(iii) the Issuer shall have received an Opinion of Counsel (and shall have delivered copies thereof to the Indenture Trustee) to the effect that such transaction will not have any material adverse tax consequence to the Issuer, any Noteholder;
(iv) any action as is necessary to maintain the lien and security interest created by this Indenture shall have been taken; and
(v) the Issuer shall have delivered to the Indenture Trustee an Officers’ Certificate and an Opinion of Counsel each stating that such conveyance or transfer and such supplemental indenture comply with this subsection 3.10(b) and that all
conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act).
SECTION 3.11 Successor or Transferee .
(a) Upon any consolidation or merger of the Issuer in accordance with subsection 3.10(a) , the Person formed by or surviving such consolidation or merger (if other than the Issuer) shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture with the same effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of the Issuer in accordance with subsection 3.10(b) , Target Credit Card Owner Trust 2008-1 will be released from every covenant and agreement of this Indenture to be observed or performed on the part of the Issuer with respect to the Notes immediately upon the delivery of written notice to the Indenture Trustee from the Person acquiring such assets and properties stating that Target Credit Card Owner Trust 2008-1 is to be so released.
SECTION 3.12 No Other Business . The Issuer shall not engage in any business other than financing, purchasing, owning, selling and managing the Collateral Certificate in the manner contemplated by this Indenture and the other Basic Documents, issuing the Notes, making payments thereon, and such other activities that are necessary, suitable or desirable to accomplish the foregoing or are incidental to the purposes as set forth in Section 2.3 of the Trust Agreement.
SECTION 3.13 No Borrowing . The Issuer shall not issue, incur, assume, guarantee or otherwise become liable, directly or indirectly, for any indebtedness except for money borrowed in respect of the Notes or in accordance with the Basic Documents.
SECTION 3.14 Administrator’s Obligations . The Issuer shall use its best efforts to cause the Administrator to comply with the Deposit and Administration Agreement.
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities . Except as contemplated by the Deposit and Administration Agreement or this Indenture, the Issuer shall not make any loan or advance or credit to, or guarantee (directly or indirectly or by an instrument having the effect of assuming another’s payment or performance on any obligation or capability of so doing or otherwise), endorse or otherwise become contingently liable, directly or indirectly, in connection with the obligations, stocks or dividends of, or own, purchase, repurchase or acquire (or agree contingently to do so) any stock, obligations, assets or securities of, or any other interest in, or make any capital contribution to, any other Person.
SECTION 3.16 Capital Expenditures . The Issuer shall not make any expenditure (by long-term or operating lease or otherwise) for capital assets (either realty or personalty) other than the purchase of the Collateral Certificate and related property pursuant to the Deposit and Administration Agreement.
SECTION 3.17 Restricted Payments . The Issuer shall not, directly or indirectly, (a) pay any dividend or make any distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, to the Owner Trustee or any owner of a beneficial interest in the Issuer or otherwise with respect to any ownership or equity interest or security in or of the Issuer, (b) redeem, purchase, retire, | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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