Exhibit 1.1 - Form of Underwriting Agreement
TYLER INTERNATIONAL FUNDING, INC.
Transferor
CIRCUIT CITY CREDIT CARD MASTER TRUST
April , 2002
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UNDERWRITING AGREEMENT
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(Standard Terms)
Banc of America Securities LLC,
(as Representative of the several Underwriters
listed in Schedule 1 to the Terms Agreement)
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
1. Introductory. The Circuit City Credit Card Master Trust (the "Trust"),
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issues, from time to time, asset backed securities (the "Certificates") in one
or more series (each, a "Series"). Each Certificate evidences a fractional,
undivided percentage interest in the Trust. The property of the Trust includes
receivables (the "Receivables") generated from time to time in a portfolio of
credit card accounts (the "Accounts"), collections thereon and certain related
property (collectively, the "Trust Property") conveyed to the Trust by Tyler
International Funding, Inc. ("Tyler Funding" or the "Transferor"). The
Certificates to which this agreement applies will be issued pursuant to the
Amended and Restated Master Pooling and Servicing Agreement, dated as of
December 31, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Pooling and Servicing Agreement"), among the Transferor, First North
American National Bank ("FNANB"), as transferor under the Prior Agreement (as
defined in the Pooling and Servicing Agreement) and as servicer (the
"Servicer"), and Bankers Trust Company, as trustee (the "Trustee"), as
supplemented by the supplement relating to each Series (each, a "Supplement").
To the extent not defined herein, capitalized terms used herein shall have the
meanings specified in the Pooling and Servicing Agreement and the applicable
Supplement.
Each offering of the Certificates to which this Agreement applies made
pursuant to the Registration Statement (as herein defined) will be made through
you or through you and other underwriters for whom you are acting as
representative or through an underwriting syndicate managed by you. Whenever the
Transferor determines to make such an offering of Certificates
to which this Agreement shall apply, it will enter into an agreement (the "Terms
Agreement") providing for the sale of such Certificates to, and the purchase and
offering thereof by, (i) you, (ii) you and such other underwriters (such other
underwriters to be approved by the Transferor, which approval shall not be
unreasonably withheld) who execute the Terms Agreement and agree thereby to
become obligated to purchase Certificates from the Transferor or (iii) you and
such other underwriters, if any, selected by you (such other underwriters to be
approved by the Transferor, which approval shall not be unreasonably withheld)
as have authorized you to enter into such Terms Agreement on their behalf (in
each case, the "Underwriters"). (It is understood that the Transferor shall not
be obligated to sell any particular Series or Class of Certificates offered
pursuant to the Registration Statement to you or you and other Underwriters.)
Execution of a Terms Agreement by the Transferor shall be conclusive evidence of
the Transferor's approval of all Underwriters named therein. Such Terms
Agreement shall specify the initial principal amount of Certificates of each
Series and Class of the Certificates to be issued and their terms not otherwise
specified in this Agreement, the price at which such Certificates are to be
purchased by the Underwriters from the Transferor, the aggregate amount of
Certificates to be purchased by you and any other Underwriter that is a party to
such Terms Agreement and the initial public offering price or the method by
which the price at which such Certificates are to be sold will be determined.
The Terms Agreement, which shall be substantially in the form of Exhibit A
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hereto, may take the form of an exchange of any standard form of written
communication between or among the Underwriters and the Transferor. Each such
offering of the certificates for which a Terms Agreement is entered into will be
governed by this Agreement, as supplemented by such Terms Agreement, and this
Agreement and such Terms Agreement shall inure to the benefit of and be binding
upon the Underwriters participating in the offering of such Certificates.
2. Representations and Warranties of the Transferor. The Transferor
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represents and warrants to you as of the date hereof and to the Underwriters
named in the applicable Terms Agreement as of the date of such Terms Agreement,
as follows:
(a) a registration statement on Form S-3 (having the registration
number stated in the applicable Terms Agreement), including a prospectus
and such amendments thereto as may have been required to the date hereof,
relating to the Certificates and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the
"Act"), has been filed with the Securities and Exchange Commission (the
"Commission") (which may have included one or more preliminary prospectuses
and prospectus supplements (each, a "Preliminary Prospectus") meeting the
requirements of Rule 430 of the Act), and such registration statement, as
amended, has become effective; such registration statement, as amended, and
the prospectus relating to the sale of the Certificates offered thereby by
the Transferor constituting a part thereof, as from time to time amended or
supplemented (including any prospectus filed with the Commission pursuant
to Rule 424(b) of the rules and regulations of the Commission (the "Rules
and Regulations") under the Act), are respectively referred to herein as
the "Registration Statement" and the "Prospectus"; provided, however, that
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a supplement to the Prospectus prepared pursuant to Section 5(a) hereof
(each, a "Prospectus Supplement") shall be deemed to have supplemented the
Prospectus only with respect to the offering of the Certificates to which
it relates; and the conditions to the use of a registration statement on
Form S-3 under the Act, as set forth in the General Instructions
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to Form S-3, and the conditions of Rule 415 under the Act, have been
satisfied with respect to the Registration Statement;
(b) as of the date of execution of the related Terms Agreement, the
Registration Statement and the Prospectus, except with respect to any
modification to which you have agreed in writing, shall be in all
substantive respects in the form furnished to you prior to such date or, to
the extent not completed on such date, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus that has previously been furnished to you) as
the Transferor has advised you, prior to such time will be included or made
therein;
(c) on the effective date of the Registration Statement, the
Registration Statement and the Prospectus complied in all material respects
with the applicable requirements of the Act and the Rules and Regulations,
and did not include any untrue statement of a material fact or, in the case
of the Registration Statement, omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading and, in the case of the Prospectus, omit to state any material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and on the date
of each Terms Agreement and on each Delivery Date (as defined in Section 3
hereof), the Registration Statement and the Prospectus will comply in all
material respects with the applicable requirements of the Act and the Rules
and Regulations, and neither of such documents included or will 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; provided, however, that the foregoing does not apply to
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information contained in or omitted from either of the documents based upon
written information furnished to the Transferor by any Underwriter
specifically for use in connection with the preparation of the Registration
Statement or the Prospectus;
(d) the Transferor is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware, with
full power, authority and legal right to own its properties and conduct its
business as described in the Prospectus, is duly qualified to do business
and is in good standing (or is exempt from such requirements), and has
obtained all necessary licenses and approvals (except with respect to the
state securities or Blue Sky laws of various jurisdictions) in each
jurisdiction in which failure to so qualify or obtain such licenses and
approvals would have a material adverse effect on the interests of
Certificateholders under the Pooling and Servicing Agreement or under any
Supplement;
(e) the Certificates of the related Series, on the date of such Terms
Agreement, will have been duly and validly authorized and, when such
Certificates are duly and validly executed by or on behalf of the
Transferor, authenticated by the Trustee and delivered in accordance with
the Pooling and Servicing Agreement and the applicable Supplement and
delivered and paid for as provided herein, will be validly issued and
outstanding and entitled to the benefits and security afforded by the
Pooling and Servicing Agreement and the applicable Supplement;
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(f) the execution, delivery and performance by the Transferor of this
Agreement, each applicable Terms Agreement, any applicable agreement
relating to an Enhancement (an "Enhancement Agreement"), the Pooling and
Servicing Agreement, each applicable Supplement and the Certificates of a
Series, and the consummation by the Transferor of the transactions provided
for herein and therein, have been, or will have been, duly authorized by
the Transferor by all necessary action on the part of the Transferor; and
neither the execution and delivery by the Transferor of such instruments,
nor the performance by the Transferor of the transactions herein or therein
contemplated, nor the compliance by the Transferor with the provisions
hereof or thereof, will (i) conflict with or result in a breach of any of
the terms and provisions of, or constitute a default under, any of the
provisions of the amended and restated certificate of incorporation or
by-laws of the Transferor, or (ii) conflict with any of the provisions of
any law, government rule, regulation, judgment, decree or order binding on
the Transferor or its properties or (iii) conflict with any of the
provisions of any material indenture, mortgage, contract or other
instrument to which the Transferor is a party or by which it is bound or
(iv) result in the creation or imposition of any lien, charge or
encumbrance upon any of its property pursuant to the terms of any such
indenture, mortgage, contract or other instrument;
(g) when executed and delivered by the parties thereto, the Pooling
and Servicing Agreement, the applicable Supplement and any applicable
Enhancement Agreement will each constitute a legal, valid and binding
agreement of the Transferor, enforceable against the Transferor in
accordance with its terms, except to the extent that the enforceability
thereof may be subject to bankruptcy, insolvency, reorganization,
receivership, conservatorship, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights in general as such laws
would apply in the event of the insolvency, liquidation or reorganization
or other similar occurrence with respect to the Transferor or in the event
of any moratorium or similar occurrence affecting the Transferor and to
general principles of equity;
(h) all approvals, authorizations, consents, orders or other actions
of any person, corporation or other organization, or of any court,
governmental agency or body or official (except with respect to the state
securities or Blue Sky laws of various jurisdictions), required in
connection with the valid and proper authorization, issuance and sale of
the Certificates of a Series pursuant to this Agreement, the applicable
Terms Agreement, the Pooling and Servicing Agreement and the applicable
Supplement, have been or will be taken or obtained on or prior to the
applicable Delivery Date;
(i) this Agreement has been and, as of the date thereof, the
applicable Terms Agreement will have been duly executed and delivered by
the Transferor;
(j) except as set forth in or contemplated in the Registration
Statement and the Prospectus, there has been no material adverse change in
the condition (financial or otherwise) of the Transferor since the date of
the applicable Prospectus Supplement;
(k) any taxes, fees and other governmental charges in connection with
the execution, delivery and performance by the Transferor of this
Agreement, the applicable
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Terms Agreement, the Pooling and Servicing Agreement, the applicable
Supplement, any applicable Enhancement Agreement and the Certificates of
the related Series shall have been paid or will be paid by or on behalf of
the Transferor at or prior to the applicable Delivery Date to the extent
then due; and
(l) the Certificates of the related Series, the Pooling and Servicing
Agreement, the applicable Supplement and any applicable Enhancement
Agreement conform in all material respects to the description thereof in
the Prospectus.
3. Purchase, Sale and Delivery of Certificates. Delivery of and payment for
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the Certificates to which this Agreement applies will be made at the offices of
McGuireWoods LLP, One Xxxxx Center, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000, or such other offices specified in the applicable Terms Agreement, at
such time as shall be specified in the applicable Terms Agreement, or at such
other time thereafter or other place as you and the Transferor shall agree upon,
each such time being therein referred to as a "Delivery Date." Delivery of such
Certificates shall be made by the Transferor to the Underwriters against payment
of the purchase price specified in the applicable Terms Agreement in same day
funds wired to such bank as may be designated by the Transferor, or by such
other manner of payment as may be agreed upon by the Transferor and you. Unless
otherwise provided in the applicable Terms Agreement, payment for the
Certificates shall be made against delivery through the facilities of The
Depository Trust Company ("DTC") of Book-Entry Certificates to you for the
respective accounts of the several Underwriters. Unless otherwise provided in a
Terms Agreement, the Certificates so to be delivered shall be global
certificates registered in the name of Cede & Co., as nominee for DTC. The
number and denomination of definitive certificates so delivered shall be as
specified by DTC. The definitive certificates for the Certificates will be made
available for inspection and packaging by you at the offices of McGuireWoods
LLP, or such other offices specified in the applicable Terms Agreement, not
later than 1:00 P.M., New York City time, on the Business Day prior to the
Delivery Date.
4. Offering by Underwriters. It is understood that the several Underwriters
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propose to offer the Certificates subject to this Agreement for sale to the
public as set forth in the Prospectus.
5. Covenants of the Transferor. The Transferor hereby covenants and agrees
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with you and the several Underwriters participating in the applicable offering
of the Certificates that:
(a) immediately following the execution of each Terms Agreement, the
Transferor will prepare a Prospectus Supplement setting forth the amount of
Certificates covered thereby and the terms thereof not otherwise specified
in the Prospectus, the price at which such Certificates are to be purchased
by the Underwriters from the Transferor, either the initial public offering
price or the method by which the price at which such Certificates are to be
sold will be determined, the selling concessions and allowances, if any,
and such other information as the Transferor deems appropriate in
connection with the offering of such Certificates, but the Transferor will
not file any amendments to the Registration Statement as in effect with
respect to the Certificates, or any amendments or supplements to the
Prospectus, unless it shall first have delivered copies of such amendments
or supplements to you, or if you shall have reasonably objected thereto
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promptly after receipt thereof; the Transferor will immediately advise you
and your counsel (i) when notice is received from the Commission that any
post-effective amendment to the Registration Statement has become or will
become effective and (ii) of any order or communication suspending or
preventing, or threatening to suspend or prevent, the offer and sale of the
Certificates or of any proceedings or examinations that may lead to such an
order or communication, whether by or of the Commission or any authority
administering any state securities or Blue Sky laws, as soon as practicable
after the Transferor is advised thereof, and will use every reasonable
effort both to prevent the issuance of any such order or communication and
to obtain as soon as possible its lifting, if issued;
(b) if, at any time when a Prospectus relating to the Certificates is
required to be delivered under the Act, 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 light of the circumstances
under which they were made, not misleading, or if it is necessary at any
time to amend or supplement the Prospectus to comply with the Act or the
Rules and Regulations, the Transferor will promptly prepare and (subject to
review and no reasonable objection by you as described in Section 5(a)
hereof) file with the Commission, at its own expense, an amendment or
supplement that will correct such statement or omission or an amendment
that will effect such compliance and, within two Business Days thereafter,
furnish to you as many copies of the Prospectus as amended or supplemented
as you may reasonably request; provided, however, that your consent to any
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amendment shall not constitute a waiver of any of the conditions of Section
6 hereof;
(c) the Transferor will make generally available to the holders of the
Certificates (the "Certificateholders") of the related Series (the
Certificateholders being the applicable Clearing Agency in the case of
Book-Entry Certificates), in each case as soon as practicable, a statement
which will satisfy the provisions of Section 11(a) of the Act and Rule 158
of the Commission with respect to the related Series of Certificates;
(d) the Transferor will furnish to each Underwriter copies of the
Registration Statement (at least one copy to be delivered to each
Underwriter will be signed and will include all documents and exhibits
thereto or incorporated by reference therein), the Prospectus, and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as you reasonably request;
(e) the Transferor will assist you in arranging for the qualification
of the Certificates for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as you designate and will
continue to assist you in maintaining such qualifications in effect so long
as required for the distribution and will file or cause to be filed such
statements and reports with respect to the distribution as may be required
by the laws of each jurisdiction in which the Certificates have been
qualified as provided above; provided, however, that neither the Transferor
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nor the Trust shall be required to qualify to do business in any
jurisdiction where it is now not qualified or to take any action which
would subject it to general or unlimited service of process in any
jurisdiction in which it is now not subject to service of process;
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(f) to the extent that any rating necessary to satisfy the condition
set forth in Section 6(c) hereof is conditioned upon the furnishing of
documents or the taking of other actions by the Transferor on or after the
Delivery Date, the Transferor shall furnish such documents and take such
other action;
(g) except as otherwise specified in the related Terms Agreement, the
Transferor will pay all expenses incident to the performance of its
obligations under this Agreement and the related Terms Agreement and will
reimburse the Underwriters for any expenses reasonably incurred by them in
connection with qualification of the related Series of Certificates and
determination of their eligibility for investment under the laws of such
jurisdictions as you may designate (including reasonable fees and
disbursements of the Underwriters' counsel) and the printing of memoranda
relating thereto, for any fees charged by investment rating agencies for
the rating of such Certificates and, to the extent previously agreed upon
with you, for expenses incurred in distributing the Prospectus (including
any amendments and supplements thereto) to the Underwriters; and
(h) the Transferor will, for so long as Certificates purchased
pursuant thereto remain outstanding, deliver or cause to be delivered to
you (i) copies of the annual servicer's certificate and the annual
accountants' reports delivered to the Trustee pursuant to the Pooling and
Servicing Agreement promptly after such reports are delivered to the
Trustee, and (ii) a copy of the Statement described in Section 5(c) hereof
promptly after such statements are delivered to Certificateholders.
6. Conditions to the Obligations of the Underwriters. The obligations of
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the several Underwriters named in any Terms Agreement to purchase and pay for
the Certificates of the related Series subject to this Agreement and such Terms
Agreement will be subject to the accuracy of the representations and warranties
on the part of the Transferor herein as of the date hereof, the date of the
applicable Terms Agreement and the applicable Delivery Date, to the accuracy of
the statements of the Transferor made pursuant to the provisions thereof, to the
performance by the Transferor in all material respects of its obligations
hereunder and to the following additional conditions precedent:
(a) you shall have received a letter from KPMG LLP, or such other
independent public accountants specified in the applicable Terms Agreement,
dated the date of the applicable Terms Agreement, and, if requested by you,
a letter from such accountants, dated the Delivery Date, each in the forms
heretofore agreed to;
(b) all actions required to be taken and all filings required to be
made by the Transferor under the Act prior to the Delivery Date for the
Certificates of such Series shall have been duly taken or made; and prior
to the applicable Delivery Date, no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the
Transferor, threatened by the Commission;
(c) unless otherwise specified in the applicable Terms Agreement, the
Certificates subject to this Agreement and offered by means of the
Registration Statement shall be rated at the time of issuance in the
highest rating category by the nationally
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recognized statistical rating organization[s] specified in the applicable
Terms Agreement and shall not have been placed on any credit watch with a
negative implication for downgrade;
(d) you shall have received an opinion of McGuireWoods LLP (or such
other counsel as shall be specified in the applicable Terms Agreement),
counsel to the Transferor, dated the applicable Delivery Date,
substantially to the effect that:
(i) the Transferor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
with full power and authority to own its assets and operate its
business as described in the Prospectus, and had at all relevant times
and now has, the power, authority and legal right to acquire and own
the Receivables transferred or proposed to be transferred to the Trust
as described in the Prospectus;
(ii) the Transferor has full power and authority to sign the
Registration Statement and to execute and deliver this Agreement, the
applicable Terms Agreement, any applicable Enhancement Agreement, the
Pooling and Servicing Agreement and the applicable Supplement and to
consummate the transactions contemplated herein and therein;
(iii) the agreements referred to in clause (ii) above have been
authorized by all necessary action on the part of the Transferor and
have been duly executed and delivered by the Transferor;
(iv) the Certificates have been duly authorized by all necessary
action of the Transferor;
(v) this Agreement, the applicable Terms Agreement, any
applicable Enhancement Agreement, the Pooling and Servicing Agreement
and the applicable Supplement each constitutes the legal, valid and
binding agreement of the Transferor, enforceable against the
Transferor in accordance with its terms, subject, as to enforcement,
to (A) the effect of bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, conservatorship, receivership, or other
similar laws of general applicability relating to or affecting
creditors' rights generally, (B) the application of general principles
of equity (regardless of whether enforceability is considered in a
proceeding in equity or at law) and (C) the enforceability under
certain circumstances of provisions indemnifying a party against
liability where such indemnification is contrary to public policy;
(vi) no consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated herein, in the
applicable Terms Agreement, the Pooling and Servicing Agreement, the
applicable Supplement or any applicable Enhancement Agreement, except
such as have been obtained or made and such as may be required under
state securities or Blue Sky laws;
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(vii) the execution, delivery and performance by the Transferor
of its obligations under this Agreement, the applicable Terms
Agreement, the Pooling and Servicing Agreement, the applicable
Supplement or any applicable Enhancement Agreement, the transfer of
the Receivables to the Trust, the issuance and sale of the
Certificates, and the consummation of any other of the transactions
contemplated herein, in the applicable Terms Agreement, the Pooling
and Servicing Agreement, the applicable Supplement or any applicable
Enhancement Agreement, will not conflict with, result in a breach of
or violation of any of the terms of, or constitute a default under,
the amended and restated certificate of incorporation or by-laws of
the Transferor, each as amended, the terms of any material indenture
or other material agreement or instrument known to such counsel to
which the Transferor is a party or by which it or its properties are
bound or any rule, order known to such counsel, statute or regulation,
of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Transferor; provided, however, that
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such counsel need express no opinion as to state securities or Blue
Sky laws;
(viii) except as otherwise disclosed in the Prospectus or the
Registration Statement, to the best of such counsel's knowledge (after
reasonable investigation), there are no actions, proceedings or
investigations pending or threatened before any court, administrative
agency or other tribunal (A) asserting the invalidity of this
Agreement, the applicable Terms Agreement, the Pooling and Servicing
Agreement, the applicable Supplement, any applicable Enhancement
Agreement or the Certificates; (B) seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions
contemplated by this Agreement, the applicable Terms Agreement, the
Pooling and Servicing Agreement, the applicable Supplement, any
applicable Enhancement Agreement or the Certificates, which if
adversely determined would materially and adversely affect the
performance by the Transferor of its obligations under, or the
validity or enforceability of, this Agreement, the applicable Terms
Agreement, the Pooling and Servicing Agreement, the applicable
Supplement, any applicable Enhancement Agreement or the Certificates,
or (C) seeking adversely to affect the federal income tax attributes
of the Certificates as described in the Prospectus under the headings
"Series 2002-[___] Summary - Tax Status of the Offered Certificates
and the Trust" and "Material Federal Income Tax Consequences";
(ix) the Registration Statement has become effective under the
Act and the Prospectus has been filed with the Commission pursuant to
Rule 424(b) promulgated under the Act; to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened under the Act; and the
Registration Statement and the Prospectus (other than the financial,
numerical and statistical information contained therein as to which
such counsel need express no opinion) as of their respective effective
date or date of issuance complied as to form in all material respects
with the requirements of the Act and the rules and regulations
promulgated thereunder;
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(x) this Agreement, the applicable Terms Agreement, the Pooling
and Servicing Agreement, the applicable Supplement, any applicable
Enhancement Agreement and the Certificates conform in all material
respects to the descriptions thereof contained in the Registration
Statement and the Prospectus; and
(xi) the Pooling and Servicing Agreement and the applicable
Supplement will not be required to be qualified under the Trust
Indenture Act of 1939, as amended, and the Trust is not now, and
immediately following the sale of the Certificates pursuant hereto
will not be, required to be registered under the 1940 Act.
Such counsel also shall state that, subject to its customary practices and
limitations relating to the scope of such counsel's participation in the
preparation of the Registration Statement and the Prospectus and its
investigation or verification of information contained therein, it has no
reason to believe that at its effective date the Registration Statement
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus on the applicable
Delivery Date includes any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading (in
each case, other than financial, numerical and statistical information
contained therein as to which such counsel need express no opinion); in
rendering such opinion, such counsel may rely as to matters of fact, to the
extent deemed proper and as stated therein, on certificates of responsible
officers of the Transferor, the Servicer and public officials;
(e) you shall have received an opinion of McGuireWoods LLP (or such
other counsel as shall be specified in the applicable Terms Agreement),
counsel to FNANB, dated the applicable Delivery Date, substantially to the
effect that:
(i) FNANB is a national banking association duly organized,
validly existing and in good standing under the laws of the United
States, with full power and authority to own its assets and operate
its business as described in the Prospectus, and had at all relevant
times and now has, the power, authority and legal right to own the
Receivables, sell the Receivables to the Transferor pursuant to the
Receivables Purchase Agreement, dated as of December 31, 2001 (as
amended, supplemented or otherwise modified from time to time, the
"Purchase Agreement"), between FNANB, as seller, and the Transferor,
as purchaser, and service the Receivables pursuant to the Pooling and
Servicing Agreement;
(ii) FNANB has full power and authority to execute and deliver
the Purchase Agreement, the Pooling and Servicing Agreement and the
applicable Supplement and to consummate the transactions contemplated
therein;
(iii) the agreements referred to in clause (ii) above have been
authorized by all necessary action on the part of FNANB and have been
duly executed and delivered by FNANB;
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(iv) the Purchase Agreement, the Pooling and Servicing Agreement
and the applicable Supplement each constitutes the legal, valid and
binding agreement of FNANB, enforceable against FNANB in accordance
with its terms, subject, as to enforcement, to (A) the effect of
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium, conservatorship, receivership, or other similar laws of
general applicability relating to or affecting creditors' rights
generally or the rights of creditors of national banking associations,
(B) the application of general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at
law) and (C) the enforceability under certain circumstances of
provisions indemnifying a party against liability where such
indemnification is contrary to public policy;
(v) no consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required under
the Federal banking laws for the consummation of the transactions
contemplated in the Purchase Agreement, the Pooling and Servicing
Agreement or the applicable Supplement, except such as have been
obtained or made;
(vi) the execution, delivery and performance by FNANB of its
obligations under the Purchase Agreement, the Pooling and Servicing
Agreement and the applicable Supplement, the sale of the Receivables
to the Transferor, the servicing of the Receivables, and the
consummation of any other of the transactions contemplated in the
Purchase Agreement, the Pooling and Servicing Agreement or the
applicable Supplement, will not conflict with, result in a breach of
or violation of any of the terms of, or constitute a default under,
the articles of association or by-laws of FNANB, each as amended, the
terms of any material indenture or other material agreement or
instrument known to such counsel to which FNANB is a party or by which
it or its properties are bound or any rule, order known to such
counsel, statute or regulation, to the extent the foregoing relate to
the Federal banking law, of any court, regulatory body, administrative
agency or governmental body having jurisdiction over FNANB;
(vii) except as otherwise disclosed in the Prospectus or the
Registration Statement, to the best of such counsel's knowledge (after
reasonable investigation), there are no actions, proceedings or
investigations pending or threatened before any court, administrative
agency or other tribunal (A) asserting the invalidity of the Purchase
Agreement, the Pooling and Servicing Agreement, or the applicable
Supplement; or (B) seeking to prevent the consummation of any of the
transactions contemplated by the Purchase Agreement, the Pooling and
Servicing Agreement or the applicable Supplement, which if adversely
determined would materially and adversely affect the performance by
FNANB of its obligations under, or the validity or enforceability of,
the Purchase Agreement, the Pooling and Servicing Agreement or the
applicable Supplement;
(f) you shall have received an opinion of McGuireWoods LLP (or such
other counsel as shall be specified in the applicable Terms Agreement),
special counsel for the
11
Transferor, dated the Delivery Date, in form and substance satisfactory to
you and your counsel, substantially to the effect that:
(i) the statements in the Prospectus under the heading "Material
Federal Income Tax Consequences" and the summary thereof under the
heading "Series 2002-[____] Summary - Tax Status of the Offered
Certificates and the Trust," to the extent they constitute matters of
Federal law or legal conclusions with respect thereto, have been
reviewed by such counsel and are correct in all material respects; and
(ii) the statements in the Prospectus under the headings "Legal
Matters Relating to the Receivables" and "ERISA Considerations," to
the extent they constitute matters of Federal law or legal conclusions
with respect thereto, have been reviewed by such counsel and are
correct in all material respects;
(g) you shall have received an opinion or opinions of McGuireWoods LLP
(or such other counsel as shall be specified in the applicable Terms
Agreement), special counsel for the Transferor and FNANB, dated the
Delivery Date, in form and substance satisfactory to you and your counsel,
with respect to certain matters relating to the transfers of the
Receivables from FNANB to the Transferor and from the Transferor to the
Trust, with respect to the perfection of the Transferor's and the Trust's
respective interests in the Receivables and certain other matters relating
to the effect of bankruptcy or receivership of the Transferor or FNANB on
such interests in the Receivables and with respect to other related matters
in a form previously approved by you and your counsel; in addition, you
shall have received a reliance letter with respect to any opinion that the
Transferor is required to deliver to the Rating Agency;
(h) you shall have received from Mayer, Brown, Xxxx & Maw (or such
other counsel as may be named in the applicable Terms Agreement), special
counsel to the Underwriters, such opinion or opinions, dated the Delivery
Date, in form and substance satisfactory to you, with respect to the
organization of the Transferor, the validity of the Certificates, the
Registration Statement, the Prospectus and other related matters as you may
require, and the Transferor shall have furnished to such counsel such
documents as they may reasonably request for the purpose of enabling them
to pass on such matters;
(i) you shall have received, with respect to the Transferor, a
certificate, dated the Delivery Date, of a Vice President or more senior
officer of the Transferor in which such officer, to the best of his or her
knowledge after reasonable investigation, shall state that (A) the
representations and warranties of the Transferor in this Agreement are true
and correct in all material respects on and as of the Delivery Date, (B)
the Transferor has complied in all material respects with all agreements
and satisfied all conditions on its part to be performed or satisfied
hereunder and under the applicable Terms Agreement at or prior to the
Delivery Date, (C) the Registration Statement has become effective, no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
threatened by the Commission and (D) subsequent to the date of the
applicable Prospectus Supplement, there has been no material adverse change
in the condition (financial or otherwise) of the Transferor
12
except as set forth in or contemplated in the Registration Statement and
the Prospectus or as described in such certificate;
(j) you shall have received an opinion of White & Case, (or such other
counsel as may be named in the applicable Terms Agreement), counsel to the
Trustee, dated the Delivery Date, in form and substance satisfactory to you
and your counsel, to the effect that:
(i) the Trustee has been duly incorporated and is validly
existing as a banking organization under the laws of the State of New
York and has the power and authority to enter into and to perform all
actions required of it under the Pooling and Servicing Agreement, and
the applicable Supplement and any applicable Enhancement Agreement;
(ii) each of the Pooling and Servicing Agreement, the applicable
Supplement and any applicable Enhancement Agreement has been duly
authorized, executed and delivered by the Trustee and constitutes a
legal, valid and binding obligation of the Trustee, enforceable
against the Trustee in accordance with its terms, except as such
enforceability may be limited by (A) bankruptcy, insolvency,
liquidation, reorganization, moratorium, conservatorship receivership
or other similar laws now or hereafter in effect relating to the
enforcement of creditors' rights in general, as such laws would apply
in the event of a bankruptcy, insolvency, liquidation, reorganization,
moratorium, conservatorship, receivership or similar occurrence
affecting the Trustee, and (B) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) as well as concepts of reasonableness,
good faith and fair dealing;
(iii) the Certificates have been duly authenticated and delivered
by the Trustee;
(iv) the execution and delivery of the Pooling and Servicing
Agreement, the applicable Supplement and any applicable Enhancement
Agreement by the Trustee and the performance by the Trustee of their
respective terms do not conflict with or result in a violation of (A)
any law or regulation of the United States of America or the State of
New York governing the banking or trust powers of the Trustee, or (B)
the certificate of incorporation or articles of association or by-laws
of the Trustee; and
(v) no approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or
the State of New York having jurisdiction over the banking or trust
powers of the Trustee is required in connection with the execution and
delivery by the Trustee of the Pooling and Servicing Agreement, the
applicable Supplement and any applicable Enhancement Agreement or the
performance by the Trustee thereunder;
13
(k) you shall receive an opinion or opinions of counsel to the
Enhancement Provider, if any, dated the Delivery Date, and satisfactory in
form and substance to you and your counsel, to the effect that:
(i) the Enhancement Provider is duly organized and validly
existing under the laws of the jurisdiction of its incorporation, is
duly qualified and/or licensed to do business in all jurisdictions
where the nature of its operations as contemplated in the applicable
Enhancement Agreement requires such qualification, and has the power
and authority (corporate and other) to enter into the applicable
Enhancement Agreement and to perform its obligations thereunder; and
(ii) each applicable Enhancement Agreement has been duly
authorized, executed and delivered by the Enhancement Provider, and
constitutes the legal, valid and binding obligation of the Enhancement
Provider, enforceable in accordance with its terms, except to the
extent that the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, conservatorship, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
as such laws would apply in the event of the insolvency, liquidation
or reorganization or other similar occurrence with respect to the
Enhancement Provider or in the event of any moratorium or similar
occurrence affecting the Enhancement Provider.
(l) you shall have received reliance letters, if applicable, with
respect to any opinions delivered to the Transferor by foreign counsel of
each provider of Enhancement (the "Enhancement Provider") for the
applicable Series under an Enhancement Agreement, if any, which opinions
shall include matters relating to (i) the due organization of the
Enhancement Provider, (ii) the authorization, execution, delivery and
performance by the Enhancement Provider of the Enhancement Agreement and
the binding effect of the Enhancement Agreement, and (iii) the
enforceability in the foreign jurisdiction in which such Enhancement
Provider is located of a judgment obtained under the Enhancement Agreement
in a United States federal court or in a court of the State of New York;
such reliance letters shall include all matters that are contained in the
opinions of foreign counsel;
(m) you shall have received the duly executed agreement of Circuit
City Stores, Inc., a Virginia corporation ("Circuit City"), in form and
substance satisfactory to you, regarding Circuit City's undertaking to
provide you with indemnification under this Agreement, as described in
Sections 7(a), (c) and (d).
The Transferor will furnish to you conformed copies of such opinions,
certificates, letters and documents as you reasonably request.
7. Indemnification.
---------------
(a) The Transferor will indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
the Act or the
14
Securities Exchange Act of 1934, as amended (the "Exchange Act") and the
respective officers, directors and employees of such person, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriters or such controlling person may become subject under the Act,
the Exchange 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 the Registration Statement, the Prospectus or any amendment or
supplement thereto, 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 and each such officer, director, employee
or controlling person for any legal or other expenses reasonably incurred
by such Underwriter and each such officer, director, employee or
controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action, subject to the following proviso,
as such expenses are incurred; provided, however, that (i) the Transferor
-------- -------
will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement in or omission or alleged
omission made in any such documents in reliance upon and in conformity with
written information furnished to the Transferor by an Underwriter
specifically for use therein and (ii) such indemnity with respect to any
untrue statement or alleged untrue statement or omission or alleged
omission in any Preliminary Prospectus shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
Certificates which are the subject thereof, if such person was not given or
sent a copy of the Prospectus including the related Prospectus Supplement
excluding documents incorporated therein by reference, at or prior to the
confirmation of the sale of such Certificates to such person in any case
where such delivery is required by the Act and the untrue statement or
alleged untrue statement or omission or alleged omission of a material fact
contained in any Preliminary Prospectus and forming the basis for the
related cause of action was corrected in the Prospectus or the related
Prospectus Supplement. This indemnity agreement will be in addition to any
liability which the Transferor may otherwise have.
(b) Each Underwriter severally, and not jointly, will indemnify and
hold harmless the Transferor, each of its directors, each of its officers
who have signed the Registration Statement and each person, if any, who
controls the Transferor within the meaning of the Act or the Exchange Act
and the respective officers, directors and employees of each such person
against any losses, claims, damages or liabilities to which the Transferor
or any such director, officer or controlling person may become subject,
under the Act, the Exchange 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 the Registration Statement, the Prospectus, or
any amendment or supplement thereto, 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, 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 by such Underwriter specifically
for use
15
therein, and will reimburse any legal or other expenses reasonably incurred
by the Transferor or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred. This indemnity agreement
will be in addition to any liability that such Underwriter may otherwise
have.
(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 this Section, notify the indemnifying party of the commencement
thereof; but the omission and/or delay so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than in this Section unless such omission caused actual
prejudice to the party not notified; in case any such action is brought
against any indemnified party, and it notified the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein, and, to the extent that it may elect by written notice
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified 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 defense thereof other than reasonable costs of
investigation. If the defendants in any action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties that are different from or additional to
those available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. No indemnifying party may
avoid its duty to indemnify under this Section 7 if such indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement or compromise of, or consent to the entry of any judgment
in, 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 all
claims that are the subject matter of such action. An indemnifying party
shall not be liable for any settlement of any claim effected without its
written consent.
(d) If recovery is not available under the foregoing indemnification
provisions of this Section for any reason other than as specified therein,
the parties entitled to indemnification by the terms thereof shall be
entitled to contribution to liabilities and expenses, except to the extent
that contribution is not permitted under Section 11(f) of the Act. In
determining the amount of contribution to which the respective parties are
entitled, there shall be considered (i) the relative benefit received by
the Transferor on the one hand and the Underwriters on the other hand from
the offering of the Certificates or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, the relative benefits
referred to in clause (i) above but also the relative fault of the
Transferor on the one hand and the Underwriters on the other hand in
connection with the statement
16
or omission that resulted in such liabilities and expenses as well as any
other relevant equitable considerations. The relative benefits received by
the Transferor on the one hand and the Underwriters on the other hand shall
be deemed to be in the same proportion as the total net proceeds of the
offering of the Certificates (before deducting expenses) received by the
Transferor bear to the total underwriting discounts and commissions
received by the Underwriters in connection with the offering of the
Certificates. The relative fault of the parties shall be determined by
reference to, among other things, the parties' relative knowledge and
access to information concerning the matter with respect to which the claim
was asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate under the
circumstances. The Transferor and the Underwriters agree that it would not
be equitable if the amount of such contribution were determined by pro rata
or per capita allocation (even if the Underwriters were treated as one
entity for such purpose).
8. Default of Underwriters. If any Underwriter or Underwriters
-----------------------
participating in an offering of Certificates default in their obligations to
purchase Certificates hereunder and under the Terms Agreement and the aggregate
principal amount of such Certificates which such defaulting Underwriter or
Underwriters agreed, but failed, to purchase does not exceed 10% of the total
principal amount of the Certificates set forth in such Terms Agreement, you may
make arrangement satisfactory to the Transferor for the purchase of such
Certificates by other persons, including any of the Underwriters participating
in such offering, but if no such arrangements are made within a period of 36
hours after the applicable Delivery Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective total commitments
hereunder and under such Terms Agreement, to purchase the Certificates which
such defaulting Underwriters agreed but failed to purchase. If any Underwriter
or Underwriters so default and the aggregate principal amount of Certificates
with respect to which such default or defaults occur is more than 10% of the
total principal amount of the Certificates set forth in such Terms Agreement and
arrangements satisfactory to you 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, except as provided in Section 10.
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. Termination of the Obligations of the Underwriters. The obligations of
--------------------------------------------------
the Underwriters to purchase the Certificates on the Delivery Date shall be
terminable by the Underwriters by written notice delivered to the Transferor if
at any time on or prior to the Delivery Date (i) trading in securities generally
on the New York Stock Exchange shall have been suspended or materially limited,
or there shall have been any setting of minimum prices for trading on such
exchange or any suspension of trading of the securities of Circuit City on any
exchange or in the over-the-counter market, (ii) a general moratorium on
commercial banking activities in New York or Georgia shall have been declared by
any of Federal, New York or Georgia authorities, (iii) there shall have occurred
any material outbreak or escalation of hostilities or other calamity or crisis,
the effect of which on the financial markets of the United States is such as to
make it, in your reasonable judgment as representative of the Underwriters,
impracticable to market the Certificates or to settle transactions in the
Certificates on the terms and in the manner contemplated in the Prospectus, (iv)
the rating of another Series of Certificates
17
shall have been reduced or withdrawn or (v) any change or any development
involving a prospective change, materially and adversely affecting (A) the Trust
Property taken as whole or (B) the business or properties of the Transferor or
Circuit City occurs, which, in your reasonable judgment as representative of the
Underwriters, in the case of either (A) or (B), makes it impracticable to market
the Certificates on the terms and in the manner contemplated in the Prospectus.
10. Survival of Certain Representations and Obligations. The respective
---------------------------------------------------
indemnities, agreements, representations, warranties and other statements by the
Transferor or its 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 the Underwriters, the Transferor or any of their respective officers or
directors or any controlling person, and will survive delivery of and payment
for the Certificates.
If this Agreement is terminated pursuant to Sections 8 and 9 or if for any
reason the purchase of the Certificates by the Underwriters is not consummated,
the Transferor shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5(g), and the obligations of the Transferor
and the Underwriters pursuant to Section 7 or 8 shall remain in effect.
11. Notices. All communications hereunder will be in writing and, if sent
-------
to an Underwriter, will be mailed, delivered or telecopied to Banc of America
Securities LLC, Bank of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxxx, facsimile number
000-000-0000 and to any other Underwriter at such address, if any, as is
specified in writing to the Transferor for notices hereunder, or if sent to the
Transferor, will be mailed, delivered or telecopied to Third Floor, Suite 287, 0
Xxxx Xxxxxx, Xxxxxxxx XX 00 Xxxxxxx, Xxxxxxxxx: Treasurer, facsimile number
(000) 000-0000, or such other address specified in the applicable Terms
Agreement; provided, however, that any notice to an Underwriter pursuant to
-------- -------
Section 7 will be mailed, delivered or telecopied to such Underwriter at the
address furnished by it.
12. Successors. This Agreement will inure to the benefit of and be binding
----------
upon the parties hereto and their respective successors and the officers,
directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
13. Representations of Underwriters. You will act for the several
-------------------------------
Underwriters in connection with this financing, and any action under this
Agreement and any Terms Agreement taken by you will be binding upon all the
Underwriters identified in such Terms Agreement.
14. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
--------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon it will become a
binding agreement among the Transferor and the several Underwriters in
accordance with its terms. Alternatively, the
18
execution of this Agreement by the Transferor and its acceptance by or on behalf
of the Underwriters may be evidenced by an exchange of telecopied or other
written communications.
Very truly yours,
TYLER INTERNATIONAL FUNDING, INC.,
as Transferor
By:
----------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
BANC OF AMERICA SECURITIES LLC,
as Representative of the
several Underwriters
By:
----------------------------
Name:
Title:
19
EXHIBIT A
---------
TYLER INTERNATIONAL FUNDING, INC.
CIRCUIT CITY CREDIT CARD MASTER TRUST
ASSET BACKED CERTIFICATES
TERMS AGREEMENT
Dated: , 20
------------ --
To: Tyler International Funding, Inc., as Transferor under
the Amended and Restated Master Pooling and Servicing
Agreement dated as of December 31, 2001.
Re: Underwriting Agreement dated April , 2002 (the "Agreement")
---
Title: Asset Backed Certificates, Series [State by Class if more
----- --------
than one Class].
Registration No.: .
---------------- ------------------------------
Initial Principal Amount, Series and Class Designation Schedule: [insert
---------------------------------------------------------------
relevant description of Series and Classes of Certificates].
Certificate Rating: [" " by Xxxxx'x Investors Service, Inc.][" " by Standard &
------------------
Poor's Corporation] [" " by [other Rating Agency]] [State by Class if more than
one Class].
Certificate Rate: [_____ % per annum][Floating rate--describe][State by Class
----------------
if more than one Class].
Terms of Sale: [The purchase price for the Certificates to the Underwriter[s]
-------------
will be ___% of the aggregate principal amount of the Certificates as of
____________, 20__, plus accrued interest at the Certificate Rate from
____________, 20__, together with estimated expenses of approximately
$____________.] [The Underwriters will offer the Certificates to the public from
time to time, in negotiated transactions or otherwise, at varying prices to be
determined at the time of sale.]
Distribution Dates: .
------------------ ------------------------------
A-1
Delivery Date and Location: : A.M., New York Time, on , 20 ,
-------------------------- --- --- ------------ --
or at such other time not later than seven full business days thereafter as may
be agreed upon, at the offices of [McGuireWoods LLP, One Xxxxx Center, 000
Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000] [other offices].
Notwithstanding anything in the Agreement or in this Terms Agreement to the
contrary, the Agreement and this Terms Agreement constitute the entire agreement
and understanding among the parties hereto with respect to the purchase and sale
of the above-referenced Certificates. This Terms Agreement may be amended only
by written agreement of the parties thereto.
The Underwriters [named in Schedule 1 hereto agree, severally and not
----------
jointly], subject to the terms and provisions of the Agreement, which is
incorporated by reference herein and made a part hereof, to purchase the Initial
Principal Amount of Certificates [set forth opposite their names in Schedule 1].
----------
Very truly yours,
BANC OF AMERICA SECURITIES LLC,
as Underwriter
By:
----------------------------------
Name:
Title
Accepted:
TYLER INTERNATIONAL
FUNDING, INC.,
as Transferor
By:
-------------------------
Name:
Title:
A-2
SCHEDULE 1
$ Principal Amount of [Class ______] Asset Backed Certificates,
Series
-------
Principal Amount
----------------
[Name of Underwriters]
$
--------------------
$
====================
$ Principal Amount of [Class ______] Asset Backed Certificates,
Series
-------
Principal Amount
----------------
[Name of Underwriters]
$
--------------------
$
====================
A-3
