EXHIBIT 1.3 - CLASS B UNDERWRITING AGREEMENT
EXECUTION COPY
TYLER INTERNATIONAL FUNDING, INC.
Transferor
CIRCUIT CITY CREDIT CARD MASTER TRUST
April 16, 2003
CLASS B UNDERWRITING AGREEMENT
(Standard Terms)
Banc of America Securities LLC,
Hearst Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Wachovia Securities, Inc.
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
(as Representatives of the several Underwriters
listed in Schedule I to the Terms Agreement)
Ladies and Gentlemen:
1. Introductory. The Circuit City Credit Card Master Trust (the
"Trust"), 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 Deutsche Bank Trust Company Americas (formerly
known as 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
representatives or through an underwriting syndicate managed by you. Subject to
the terms and conditions set forth herein, the Underwriters may purchase from
the Trust all or any part of the Certificates to which this Agreement applies.
This Agreement shall not obligate the Underwriters (as defined below) to
purchase any of the Certificates to which this Agreement applies, but shall
govern any purchases of such Certificates on the applicable Delivery Date.
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
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
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:
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(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 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 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 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;
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(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;
(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;
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(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 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 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.
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4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Certificates to which this Agreement applies
subject to this Agreement for sale to the public on a "best efforts" basis as
set forth in the Prospectus.
5. Covenants of the Transferor. The Transferor hereby covenants and
agrees 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
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 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
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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 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;
(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. This
Agreement shall not obligate the several Underwriters named in any Terms
Agreement to purchase and pay for the Certificates to which this Agreement
applies of the related Series subject to this Agreement and such Terms
Agreement, but shall govern any purchases of such Certificates made by such
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Underwriters on the applicable Delivery Date. Notwithstanding the foregoing, it
is understood that the purchase by such Underwriters of such Certificates 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 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;
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(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;
(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 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
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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 2003-[__] 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;
(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;
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(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;
(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
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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 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 2003-[__] 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;
12
(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 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;
13
(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;
(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
14
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 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
15
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
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,
16
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 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 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).
Notwithstanding the provisions of this subsection (d), the Underwriters
shall not be required to contribute any amount in excess of the amount
by which the total underwriting discount as set forth on the cover page
of the Prospectus Supplement exceeds the amount of damages which the
Underwriters have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission with
respect to the Certificates. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
8. 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
17
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 representatives 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 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 representatives 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.
9. 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 Section 8 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 shall remain in effect.
10. 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, Hearst Tower, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx, facsimile number 000-000-0000, to
Wachovia Securities, Inc., One Wachovia Center 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Asset Backed Finance, 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 Second 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.
11. 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.
12. 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.
18
13. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
19
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 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: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
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: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
WACHOVIA SECURITIES, INC.,
as Representative of the
several Underwriters
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President
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 ______________, 20___ (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:
WACHOVIA SECURITIES, INC.,
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