Exhibit 4.1
WACHOVIA CREDIT CARD MASTER TRUST
SERIES 2000-1
Class A Floating Rate Asset Backed Certificates,
Series 2000-1
UNDERWRITING AGREEMENT
July 25, 2000
Lehman Brothers Inc.
Wachovia Securities, Inc.
As Representatives of the
Several Underwriters
c/o Lehman Brothers Inc.
Three World Financial Center
New York, NY 10285
Ladies and Gentlemen:
1. Introductory. The First National Bank of Atlanta, a national
banking association (the "Bank" or the "Transferor"), has duly authorized
the issuance and sale to Lehman Brothers Inc. and Wachovia Securities, Inc.
as representatives of the several underwriters (the "Representatives") of
$637,500,000 principal amount of Class A Floating Rate Asset Backed
Certificates, Series 2000-1 (the "Certificates") of Wachovia Credit Card
Master Trust (the "Trust"). The Certificates will be issued pursuant to (a)
an Amended and Restated Pooling and Servicing Agreement between the Bank,
as Transferor and as Servicer, and The Bank of New York (Delaware), as
Trustee, dated as of June 4, 1999 (the "P&S Agreement") and (b) the Series
2000-1 Supplement to the P&S Agreement, to be dated as of August 1, 2000
(the "Supplement" and, together with the P&S Agreement, the "Pooling and
Servicing Agreement"), between the Bank and the Trustee. The Transferor
will enter into a Loan Agreement among the Bank, as Transferor and
Servicer, the Trustee, as Trustee and as Collateral Agent, and the Agent
and Collateral Investors identified therein, to be dated as of August 1,
2000 (the "Loan Agreement"). Each Certificate represents a specified
percentage undivided interest in the Trust.
This Underwriting Agreement shall hereinafter be referred to as
this "Agreement." This Agreement, the Pooling and Servicing Agreement and
the Loan Agreement shall collectively hereinafter be referred to as the
"Basic Documents." Capitalized terms used but not defined herein have the
meanings assigned in the Pooling and Servicing Agreement. The Transferor
hereby agrees with the several Underwriters named in Schedule A hereto
("Underwriters") as follows:
2. Representations and Warranties of the Transferor. The
Transferor represents and warrants to, and agrees with, the several
Underwriters that:
(a) A registration statement on Form S-3 (No. 333-79453),
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 ("Commission") 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 constituting a part
thereof, as from time to time amended or supplemented (including the
base prospectus and any prospectus supplement 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 shall be deemed
to have supplemented the Prospectus only with respect to the offering
of the Certificates; and the conditions to the use of a registration
statement on Form S-3 under the Act, as set forth in the General
Instructions on Form S-3, and the conditions of Rule 415 under the
Act, have been satisfied with respect to the Registration Statement;
(b) On the effective date of the Registration Statement,
the Registration Statement and the Prospectus conformed in all
respects to the 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 this Agreement, the
Registration Statement and the Prospectus will conform in all respects
to the 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 statements in or omissions from the Registration Statement or
the Prospectus based upon written information furnished to the
Transferor by the Underwriters specifically for use therein, it being
understood and agreed that the only such information is that described
as such in Section 7(b).
(c) The Transferor is a national banking association duly
organized and validly existing in good standing under the laws of the
United States, 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.
(d) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
for the consummation by the Transferor of the transactions
contemplated by this Agreement in connection with the issuance and
sale of the Certificates by the Transferor, except such as have been
obtained and made under the Act, such as may be required under state
securities laws and the filing of any financing statements required
to perfect the Trust's interest in the Receivables or as otherwise
provided in the Basic Documents.
(e) The Transferor is not in violation of its Articles of
Association or Bylaws or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
agreement or instrument to which it is a party or by which it or its
properties are bound which would have a material adverse effect on
the transactions contemplated in the Basic Documents. The execution,
delivery and performance of the Basic Documents and the issuance and
sale of the Certificates and compliance with the terms and provisions
thereof will not result in a material breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the
Transferor or any of its properties, or any material agreement or
instrument to which the Transferor is a party or by which the
Transferor is bound or to which any of the properties of the
Transferor is subject, or the Articles of Association or Bylaws of the
Transferor, and the Transferor has full power and authority to
authorize, issue and sell the Certificates as contemplated by this
Agreement and the Transferor has full power and authority to enter
into the Basic Documents to which it is a party.
(f) As of the Closing Date, the representations and
warranties of the Transferor in the Basic Documents to which it is a
party will be true and correct in all material respects.
(g) This Agreement has been duly authorized, executed and
delivered by the Transferor.
(h) The Transferor has authorized the Trust to issue and
sell the Certificates.
(i) Wachovia Corporation (the "Company") has delivered to
you complete and correct copies of publicly available portions of the
Consolidated Reports of Condition and Income of the Transferor for
the three most recent years for which such reports are available, as
submitted to the Comptroller of the Currency; 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 Company since the last such report;
(j) The Company has delivered to you complete and correct
copies of Form 10-Q for the first quarter of 2000 and Form 10-K for
1999. Except as set forth in or contemplated in a Registration
Statement and the Prospectus, there has been no material adverse
change, nor any development or event involving a prospective material
adverse change, in the condition (financial or otherwise) of either
the Transferor or the Company or the credit card business of the
Company or its Affiliates since the date of the information provided
pursuant to the preceding sentence.
(k) Any taxes, fees and other governmental charges due
and payable from or by the Transferor in connection with the
execution, delivery and performance of the Basic Documents and the
Certificates and any other agreements contemplated therein shall have
been paid or will be paid by the Transferor, at or prior to the
Closing Date to the extent then due.
(l) The Certificates have been duly and validly
authorized by all required action of the Bank, and, when duly and
validly executed by the Bank, authenticated by the Trustee and
delivered in accordance with the Pooling and Servicing Agreement, and
delivered to and paid for by the Underwriters as provided herein,
will be validly issued and outstanding and entitled to the benefits
of the Pooling and Servicing Agreement. As of the Closing Date, the
Certificates will have been duly and validly executed by the Bank,
and will conform in all material respects to the descriptions thereof
contained in the Prospectus.
(m) The Receivables conformed in all material respects
with the description thereof contained in the Prospectus as of the
dates specified therein.
(n) The Trust is not, and will not become as a result of
the issuance and sale of the Certificates, subject to regulation as
an "investment company" within the meaning of the Investment Company
Act of 1940, as amended (the "1940 Act").
3. Purchase, Sale and Delivery of Certificates. On the basis of
the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Transferor agrees
to sell to the Underwriters, and the Underwriters agree, severally and not
jointly, to purchase from the Transferor at a purchase price of 99.725% of
the principal amount of the Certificates, the principal amounts of
Certificates, set forth opposite the names of the applicable Underwriters
in Schedule A hereto.
The Transferor will deliver against payment of the purchase
price the Certificates, each in the form of one or more permanent global
securities in definitive form (the "Global Certificates") deposited with
the Trustee as custodian for The Depository Trust Company ("DTC") and
registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent global securities will be held only in book-entry form through
DTC, except in the limited circumstances described in the Prospectus.
Payment for the Certificates shall be made by the Underwriters in Federal
(same day) funds by wire transfer to an account previously designated to
Lehman Brothers by the Transferor at 10:00 a.m. (New York time), on August
1, 2000, or at such other time not later than seven full business days
thereafter as the Representatives and the Transferor determine, such time
being herein referred to as the "Closing Date," against delivery to the
Trustee as custodian for DTC of the Global Certificates representing all of
the Certificates. For purposes of Rule 15c6-1 under the Securities Exchange
Act of 1934 (the "Exchange Act"), the Closing Date (if later than the
otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of the Certificates. The Global Certificates
will be made available for checking at the office of Skadden, Arps, Slate,
Meagher & Flom LLP at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Certificates for sale to the public (which
may include selected dealers) as set forth in the Prospectus.
(a) Each Underwriter, severally, represents and warrants
to the Bank that (a) it has not and will not use any information that
constitutes "Computational Materials" with respect to the offering of
Certificates unless is has obtained the prior written consent of the
Bank to such usage and (b) it has not and will not use any
information that constitutes "Series Term Sheets," "ABS Term Sheets,"
"Structural Term Sheets" or "Collateral Term Sheets" with respect to
the offering of Certificates. For purposes hereof, "Series Term
Sheet" shall have the meaning given such term in the no-action
letter, dated April 5, 1996, issued by Commission to Greenwood Trust
Company (the "Greenwood Letter") and "Computational Materials" shall
have the meaning given such term in the Greenwood Letter and,
together with the no-action letter, dated May 20, 1994, issued by the
Commission to Kidder, Peabody Acceptance Corporation I, Kidder,
Peabody & Co., Incorporated and Kidder Structured Asset Corporation,
as made applicable to other issuers and underwriters by the
Commission in the response to the request of the Public Securities
Association, dated May 24, 1994 (collectively, the "Kidder/PSA
Letter"), the PSA Letter and the No-Action Letters. For purposes
hereof, "ABS Term Sheets," "Structural Term Sheets" and "Collateral
Term Sheets" shall have the meanings given such terms in the
no-action letter, dated February 17, 1995, issued by the Commission
to the Public Securities Association (the "PSA Letter").
5. Certain Agreements of the Transferor. The Transferor
covenants and agrees with the several Underwriters that:
(a) Immediately following the execution of this
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, the
initial public offering price, the selling concessions and allowances
and such other information as the Transferor deems appropriate. The
Transferor will transmit the Prospectus including such prospectus
supplement to the Commission pursuant to Rule 424(b) by a means
reasonably calculated to result in filing with the Commission pursuant
to Rule 424(b). The Transferor will advise the Representatives
promptly of any such filing pursuant to Rule 424(b).
(b) The Transferor will advise the Representatives
promptly of any proposal to amend or supplement the Registration
Statement as filed and will not effect such amendment or
supplementation without the Representatives' consent, which consent
shall not be unreasonably withheld or delayed; and the Transferor
will also advise the Representatives promptly of the effectiveness of
any amendment or supplementation of the Registration Statement and of
the institution by the Commission of any stop order proceedings in
respect of the Registration Statement and the Transferor will use its
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, any event occurs as a result
of which the Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Transferor will promptly notify the Representatives of such event
and will promptly prepare and file with the Commission (subject to
the Representatives' prior review pursuant to paragraph (b) of this
Section 5), at its own expense, an amendment or supplement which will
correct such statement or omission, or an amendment which will effect
such compliance. Neither the Representatives' consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Transferor will cause the
Trust to make generally available to the Certificateholders an
earnings statement of the Trust covering a period of at least 12
months beginning after the effective date of the Registration
Statement which will satisfy the provisions of Section 11(a) of the
Act. For the purpose of the preceding sentence, "Availability Date"
means the 45th day after the end of the Trust's fourth fiscal quarter
following the fiscal quarter that includes such Effective
Date, except that, if such fourth fiscal quarter is the last quarter
of the Trust's fiscal year, "Availability Date" means the 90th day
after the end of such fourth fiscal quarter.
(e) The Transferor will furnish to the Representatives
copies of the Registration Statement (two of which will be signed and
will include all exhibits), each related preliminary prospectus, and,
so long as delivery of a prospectus relating to the Certificates is
required to be delivered under the Act in connection with sales by
any Underwriter or dealer, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and
in such quantities as the Representatives reasonably request. The
Prospectus shall be so furnished on or prior to 10:00 A.M., New York
time, two business days following the execution and delivery of this
Agreement or at such other time as the Representatives and the
Transferor determine. All other such documents shall be so furnished
as soon as available. The Transferor will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Transferor will arrange for the qualification of
the Certificates for sale and the determination of their eligibility
for investment under the laws of such jurisdictions as the
Representatives designate and in the continuation of such
qualifications in effect so long as required for the distribution of
the Certificates; provided, however, that the Transferor will not be
obligated to qualify to do business in any jurisdiction where it is
not so qualified or to take action which would subject the Transferor
to the general or unlimited service of process in any jurisdiction
where it is not now subject to such service of process.
(g) For a period from the date of this Agreement until
the retirement of the Certificates (i) the Bank, as Servicer, will
furnish to the Representatives and, upon request, to each of the
other Underwriters, copies of each certificate and the annual
statements of compliance delivered to the Trustee pursuant to Article
III and Section 5.2 of the Pooling and Servicing Agreement and the
annual independent certified public accountant's servicing reports
furnished to the Trustee pursuant to Article III of the Pooling and
Servicing Agreement, as soon as such statements and reports are
furnished to the Trustee, (ii) any other periodic certificates or
reports as may be delivered to the Trustee or the Certificateholders
under the Pooling and Servicing Agreement and (iii) from time to
time, such other information concerning the Transferor as the
Representatives may reasonably request.
(h) So long as any Certificate is outstanding, the
Transferor will furnish to the Representatives as soon as
practicable, copies of all documents (A) distributed, or caused to be
distributed, by the Transferor to Certificateholders, (B) filed, or
caused to be filed, by the Transferor with the Commission pursuant to
the Exchange Act, any order of the Commission thereunder or pursuant
to a "no-action" letter from the staff of the Commission and (C) from
time to time, such other information in the possession of the
Transferor concerning the Trust as the Representatives may reasonably
request. The Transferor will register the Certificates under the
Exchange Act within 120 days after the end of the fiscal year of the
Trust during which the offering of the Certificates to the public
occurred.
(i) The Transferor will pay all expenses incident to the
performance of its obligations under this Agreement and will
reimburse the Underwriters (if and to the extent incurred by them)
for any filing fees and other expenses (including fees and
disbursements of counsel) incurred by them in connection with
qualification of the Certificates for sale and determination of their
eligibility for investment under the laws of such jurisdictions as
the Representatives designate and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the
rating of the Certificates, for any travel expenses of the
Transferor's officers and employees and any other expenses of the
Transferor in connection with attending or hosting meetings with
prospective purchasers of the Certificates and for expenses incurred
in distributing preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto).
(j) To the extent, if any, that the ratings provided with
respect to the Certificates by the Rating Agencies is conditional
upon the furnishing of documents or the taking of any other action by
the Transferor agreed upon on or prior to the Closing Date, the
Transferor shall furnish such documents and take any such other
action.
(k) The Transferor shall not, until after the Closing
Date, offer, sell or contract to sell, directly or indirectly, or
file with the Commission a registration statement under the Act
relating to, securities substantially similar to the Certificates.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the
Certificates on the Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Transferor herein, to the
accuracy of the statements of officers of the Transferor made pursuant to
the provisions hereof, to the performance by the Transferor of its obligations
hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a letter,
dated the date of delivery thereof, which shall be on or prior to the
date hereof, of Ernst & Young LLP, in form and substance satisfactory
to the Underwriters and counsel for the Underwriters, confirming that
they are independent public accountants within the meaning of the Act
and the applicable published Rules and Regulations thereunder and
stating in effect that (i) they have performed certain specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which
is limited to accounting, financial or statistical information
derived from the general accounting records of the Transferor) set
forth in the Registration Statement and the Prospectus (and any
supplements thereto), agrees with the accounting records of the
Transferor, excluding any questions of legal interpretation, and (ii)
they have performed certain specified procedures with respect to the
accounts.
(b) The Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Transferor or the
Representatives, shall be contemplated by the Commission or by any
authority administering any state securities or blue sky laws.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or otherwise), business, properties or results of
operations of the Transferor, the Company or the Transferor's credit
card business which, in the reasonable judgment of the
Representatives, materially impairs the investment quality of the
Certificates and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Certificates; (ii) any downgrading in the rating of any debt
securities of the Transferor or the Company by any "nationally
recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any
debt securities of the Transferor or the Company (other than an
announcement with positive implications of a possible upgrading, and
no implication of a possible downgrading, of such rating); (iii) any
suspension or limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of the
Transferor or the Company on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by U.S. Federal or New
York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of
war by Congress or any substantial national or international calamity
or emergency if, in the judgement of the Representatives, the effect
of any such outbreak, escalation, declaration, calamity or emergency
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Certificates.
(d) The Representatives shall have received from John H.
Loughridge, Jr., Esq. in-house counsel for the Transferor, such opinion
or opinions dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters,
substantially to the effect that:
(i) The Transferor is a national banking
association duly organized, validly existing and in good standing
under the laws of the United States, and has full corporate power,
authority and legal right to execute, deliver and perform its
obligations under the Basic Documents to which it is a party and, in
all material respects, to own its properties and conduct its business
as such properties are presently owned and as such business is
presently conducted;
(ii) The Transferor is duly qualified to do
business and is in good standing (or is exempt from such
requirements)in any state required in order to conduct its business,
and has obtained all necessary licenses and approvals in each
jurisdiction in which failure to so qualify or to obtain such
licenses and approvals would render any Credit Card Agreement
relating to an Account or any Receivable transferred to the Trust by
the Transferor unenforceable by the Transferor, the Servicer or the
Trustee and would have a material adverse effect on the interests of
the Certificateholders under the Pooling and Servicing Agreement;
(iii) The Certificates have been duly authorized,
executed and delivered by the Transferor and, when duly authenticated
by the Trustee in accordance with the terms of the Pooling and
Servicing Agreement and delivered to and paid for by the Underwriters
in accordance with the terms of this Agreement, will be validly
issued and outstanding and entitled to the benefits provided by the
Pooling and Servicing Agreement;
(iv) Each of the Basic Documents has been duly
authorized, executed and delivered by the Transferor, and constitutes
the legal, valid and binding agreement of the Transferor, enforceable
in accordance with its terms, except (x) to the extent that the
enforceability thereof may be limited by (A) bankruptcy, insolvency,
moratorium, receivership, conservatorship, reorganization, moratorium
or other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors generally and the
rights of creditors as the same may be applied in the event of
bankruptcy, insolvency, receivership, reorganization, moratorium or
other similar event in respect of the Transferor, (B) general
principles of equity (regardless of whether considered and applied in
a proceeding in equity or in law) and (C) with respect to the Pooling
and Servicing Agreement, the qualification that certain of the
remedial provisions of the Pooling and Servicing Agreement may be
unenforceable in whole or in part, but the inclusion of such
provisions does not affect the validity of the Pooling and Servicing
Agreement taken as a whole, and the Pooling and Servicing Agreement,
together with applicable law, contains adequate provisions for the
practical realization of the benefits of the security created
thereby; and (y) such counsel expresses no opinion as to the
enforceability of any rights to contribution or indemnification which
are violative of public policy underlying any law, rule or
regulation;
(v) No consent, approval, authorization or order of
any governmental agency or body is required for (A) the execution,
delivery and performance by the Transferor of its obligations under
any of the Basic Documents or the Certificates to which it is a
party, or (B) the issuance or sale of the Certificates, except such
as have been obtained under the Act and as may be required under
state securities or blue sky laws in connection with the purchase and
distribution of the Certificates by the Underwriters and the filing
of Uniform Commercial Code financing statements with respect to the
Receivables;
(vi) The execution and delivery of the Basic
Documents or the Certificates by the Transferor, or the performance
by the Transferor, of the transactions therein contemplated or the
fulfillment of the terms thereof does not or will not result in any
violation of any statute or regulation or any order or decree of any
court or governmental authority binding upon the Transferor or the
property of the Transferor, or conflict with, or result in a breach
or violation of any term or provision of, or result in a default
under any of the terms and provisions of, the Articles of Association
or By-laws of the Transferor or any material indenture, loan
agreement or other material agreement to which the Transferor is a
party or by which it or its properties are bound;
(vii) There are no proceedings or investigations
pending or, to the knowledge of such counsel, threatened in writing
against the Transferor, before any court, regulatory body,
administrative agency, or other tribunal or governmental
instrumentality (i) asserting the invalidity of any of the Basic
Documents or the Certificates, (ii) seeking to prevent the issuance
of the Certificates or the consummation of any of the transactions
contemplated by any of the Basic Documents or the Certificates, (iii)
seeking any determination or ruling that, in the reasonable judgment
of such counsel, would materially and adversely affect the
performance by the Transferor of its obligations under any of the
Basic Documents, (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of any
of the Basic Documents or the Certificates or (v) seeking to affect
adversely the income tax attributes of the Trust or the Certificates
under the Federal or applicable state income or franchise tax
systems; and
(viii)The Registration Statement was declared
effective under the Act as of the date and time specified in such
opinion and the Prospectus has been filed with the Commission
pursuant to Rule 424(b) on the date specified therein and, to the
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or contemplated
under the Act, and the Registration Statement and the Prospectus, and
each amendment or supplement thereto, as of their respective
effective or issue dates, complied as to form in all material
respects with the requirements of the Act and the Rules and
Regulations; such counsel has no reason to believe that any part of
the Registration Statement or any amendment thereto, as of its
effective date or as of such Closing Date, 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 or any amendment or
supplement thereto, as of its issue date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; it being understood that such counsel does not express
any opinion as to the financial statements or other financial data
contained in the Registration Statements or the Prospectus.
(e) The Representatives shall have received from Skadden,
Arps, Slate, Meagher & Flom LLP, special tax counsel to the
Transferor, such opinion or opinions dated the Closing Date,
substantially to the effect that the Certificates will be treated as
indebtedness for Federal income tax purposes, the Trust will not be
classified as an association taxable as a corporation, the
Certificates will be characterized as debt for Federal income tax
purposes, the Certificates will be characterized as debt for Delaware
income tax purposes, and to the effect that, to the extent that the
Trust will not be subject to tax at the entity level for Federal
income tax purposes, the Trust will not be subject to tax at the
entity level for Delaware income tax purposes.
(f) The Representatives shall have received from Skadden,
Arps, Slate, Meagher & Flom LLP, special counsel to the Transferor,
such opinion or opinions dated the Closing Date, substantially to the
effect that:
(i) Each of the Basic Documents constitutes the
valid and binding obligation of the Transferor, enforceable against
the Transferor in accordance with its terms, except (x) to the extent
that the enforceability thereof may be limited by (a) bankruptcy,
insolvency, receivership, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights
generally and the rights of creditors of national banking
associations as the same may be applied in the event of the
bankruptcy, insolvency, receivership, reorganization, moratorium or
other similar event in respect of the Transferor, (b) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and (c) the
qualification that certain of the remedial provisions of the Pooling
and Servicing Agreement may be unenforceable in whole or in part, but
the inclusion of such provisions does not affect the validity of the
Pooling and Servicing Agreement taken as a whole, and the Pooling and
Servicing Agreement, together with applicable law, contain adequate
provisions for the practical realization of the benefits of the
security created thereby and (y) such counsel expresses no opinion as
to the enforceability of any rights to contribution or
indemnification which are violative of public policy underlying any
law, rule or regulation;
(ii) The Certificates, when executed and
authenticated in accordance with the terms of the Pooling and
Servicing Agreement and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be duly and validly issued and
outstanding and will be entitled to the benefits of the Pooling and
Servicing Agreement;
(iii) This Agreement has been duly authorized, executed
and delivered by the Transferor;
(iv) Neither the execution, delivery or performance
by the Transferor of the Basic Documents or this Agreement, nor the
compliance by the Transferor with the terms and provisions thereof or
hereof, will contravene any provision of any applicable law;
(v) Based on such counsel's review of applicable
laws, no governmental approval, which has not been obtained or taken
and is not in full force and effect, is required to authorize or is
required in connection with the execution, delivery or performance of
the Basic Documents by the Transferor; and
(vi) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended, and the Trust is not required to be registered under the
1940 Act.
In rendering such opinion, Skadden, Arps, Slate, Meagher
& Flom LLP may rely as to the organization of the Transferor and
certain other matters upon the opinion referred to in (d) above.
(g) The Representatives shall have received from Skadden,
Arps, Slate, Meagher & Flom LLP, special counsel for the
Underwriters, such opinion or opinions, dated the Closing Date,
substantially to the effect that:
(i) The Certificates conform in all material respects
to the descriptions thereof contained in the Prospectus;
(ii) The statements under the heading "Certain
Legal Aspects of the Receivables" and "Employee Benefit Plan
Considerations" in the Prospectus and "ERISA Considerations" in the
Prospectus Supplement to the extent that they constitute matters of
law or legal conclusions with respect thereto, have been reviewed by
such counsel and are correct in all material respects;
(iii) Each of the Registration Statement, as of its
effective date, and the Prospectus, as of its date, appeared on its
face to be appropriately responsive in all material respects to the
requirements of the Act and the General Rules and Regulations under
the Act, except that in each case such counsel expresses no opinion
as to the financial data included therein or excluded therefrom or
the exhibits to the Registration Statement, and such counsel does not
assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement and the
Prospectus.
(h) The Representatives shall have received from (i)
Richards, Layton & Finger, special counsel to the Transferor, such
opinion or opinions dated the Closing Date and satisfactory in form
and substance to the Underwriters and counsel for the Underwriters,
substantially to the effect that the Pooling and Servicing Agreement
creates a first priority perfected security interest under Article 9
of the Delaware Uniform Commercial Code ("Delaware UCC") in favor of
the Trustee in the Receivables and (ii) Skadden, Arps, Slate, Meagher
& Flom LLP, special counsel to the Transferor, such opinion or
opinions dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, with
respect to the effects of the receivership of the Transferor on the
Trust's interest in the Receivables.
(i) The Representatives shall have received from McGuire,
Woods, Battle & Boothe LLP, counsel to the Trustee, such opinion or
opinions dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters,
substantially to the effect that:
(i) The Trustee is a banking corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware and has the corporate power and authority to
execute, deliver and perform its obligations under the Pooling and
Servicing Agreement.
(ii) The Supplement has been duly authorized,
executed and delivered by the Trustee. The Pooling and Servicing
Agreement constitutes the legal, valid and binding agreement of the
Trustee, enforceable against the Trustee in accordance with its
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights of creditors generally (as such laws would apply
in the event of the insolvency, receivership, conservatorship or
reorganization of, or other similar occurrence with respect to, the
Trustee) and except that the enforceability of the Pooling and
Servicing Agreement may be subject to the application of general
principles of equity (regardless of whether considered or applied in
a proceeding in equity or at law).
(iii) The execution and delivery by the Trustee of
the Supplement and the performance by the Trustee of its obligations
under the Pooling and Servicing Agreement 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 Delaware governing the
banking or trust activities of the Trustee or (B) the amended and
restated articles of association or bylaws of the Trustee.
(iv) The execution and delivery by the Trustee of
the Supplement and the performance by the Trustee of its obligations
under the Pooling and Servicing Agreement do not require any
approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State
of Delaware having jurisdiction over the banking or trust activities
of the Trustee, except such as have been obtained, taken or made.
(v) The Certificates have been duly authenticated
by the Trustee pursuant to the Agency Agreement and in accordance
with the Pooling and Servicing Agreement.
(j) The Representatives shall have received an opinion of
Sullivan & Worcester LLP, counsel to the holder of the Collateral
Interest (the "Enhancement Provider") dated the Closing Date, and
satisfactory in form and substance to the Underwriters and counsel
for the Underwriters, to the effect that:
(i) The Enhancement Provider is duly licensed by the
Superintendent of Banks of the State of New York;
(ii) The Enhancement Provider has the power and
authority as a New York Branch to execute and deliver the Loan
Agreement and to perform its obligations as the Agent thereunder;
(iii) The Enhancement Provider is authorized to
transact business as a New York Branch in the State of New York;
(iv) The Loan Agreement has been duly executed and
delivered by two authorized officers of the Enhancement Provider and
constitutes the legal, valid and binding obligation of the
Enhancement Provider, enforceable against the Enhancement Provider in
accordance with its terms, except as such enforceability may be
limited by (a) applicable bankruptcy, insolvency, fraudulent
conveyance, receivership, conservatorship, reorganization,
liquidation, moratorium, readjustment of debt or other similar laws
affecting the enforcement of creditors' rights generally (including
the effect of the commencement of an ancillary case relating to the
Enhancement Provider under Section 304 of the Bankruptcy Code (Title
11, U.S.C.) and by courts in the United States of America giving
effect to foreign laws or foreign governmental action affecting
creditors' rights against the Enhancement Provider), (b) the
application of general principles of equity, regardless of whether
considered in a proceeding at law or in equity, and (c) the
unenforceability under certain circumstances of provisions
indemnifying a party against liability where such indemnification is
contrary to public policy.
In rendering such opinion, Sullivan & Worcester LLP may rely as
to matters of German law upon the opinion referred to in (k) below.
(k) The Representatives shall have received an opinion of
counsel or reliance letter, if applicable, of German counsel to the
Enhancement Provider, dated the Closing Date, and satisfactory in
form and substance to the Underwriters and counsel for the
Underwriters, to the effect that:
(i) The Enhancement Provider is a bank duly
organized and validly existing under the law of Germany and has the
corporate power and authority to execute and deliver the Loan
Agreement and perform its obligations under the Loan Agreement;
(ii) The Enhancement Provider has the power and
capacity to establish branches and agencies outside Germany
including, without limitation, in the State of New York;
(iii) The Enhancement Provider has full corporate
power and authority under German law to execute and deliver the Loan
Agreement and to perform its obligations under the Loan Agreement
through its New York Branch;
(iv) Relying on the Enhancement Provider's list of
specimen signatures, the Loan Agreement has been duly executed and
delivered for and on behalf of the Enhancement Provider and
constitutes its legal, valid and binding obligation enforceable
against it in accordance with its terms;
(v) Neither the execution and delivery of the Loan
Agreement nor the performance of the Loan Agreement by the
Enhancement Provider will violate any applicable provision of the
German law, or any order, judgment or decree of any court to which
the Enhancement Provider is subject in Germany and of which we are
aware, or conflict with, or result in a breach of, any provision of
the Enhancement Provider's Articles of Association;
(vi) No authorization, consent or approval of any
court or governmental authority of Germany or any political
subdivision thereof is required for the execution or delivery of the
Loan Agreement or the performance of the Loan Agreement by the
Enhancement Provider;
(vii) Any final judgment against the Enhancement
Provider based on the Loan Agreement for a definite sum of money
obtained in or from any state or federal court in the State of New
York as competent jurisdiction would be recognized and declared
enforceable against the Enhancement Provider by the competent courts
of Germany without re-examination or re-litigation of the matters
adjudicated, unless (i) the courts of the jurisdiction in which the
relevant court is located are not competent according to German law;
(ii) where the judgment was given in default of appearance and the
defendant invokes such default and the defendant was not served with
the document which instituted the proceedings properly or had
insufficient time to enable him to arrange for his defense; (iii) the
judgment is irreconcilable with a judgment given in Germany or a
previous, recognizable foreign judgment or the proceedings leading to
such judgment are irreconcilable with proceedings that became pending
previously; (iv) such recognition entails results which are obviously
irreconcilable with fundamental principles of German law, including,
among others, the basic rights provided by the German Constitution;
or (v) reciprocity is not guaranteed;
(viii)The choice of the law of the State of New
York as the law governing the Loan Agreement is valid under German
law and a court in Germany would uphold such choice of law in a suit
or other proceeding with respect to the Loan Agreement brought in a
court of Germany; and
(ix) With the exception of obligations given
priority by mandatory provisions of law, the obligations of the
Enhancement Provider under the Loan Agreement rank pari passu with
its other unsecured and unsubordinated liabilities within the scope
and meaning of German insolvency laws.
(l) The Representatives shall have received a
certificate, dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, of
the Chairman, President or any Vice President of the Transferor, in
which such officers, to their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Transferor in this Agreement are true and correct, that the
Transferor has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date, that the representations and warranties of
the Transferor in the Basic Documents are true and correct as of the
dates specified therein, that no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission, that, subsequent to the date of the Prospectus,
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or otherwise), business, properties or results
of operations of the Transferor or its credit card business except as
set forth in or contemplated by the Prospectus or as described in
such certificate and that nothing has come to the attention of the
Transferor that would lead the Transferor to believe that the
Registration Statement or the Prospectus contains any untrue
statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(m) The Representatives shall have received evidence
satisfactory to the Underwriters and counsel for the Underwriters
that the Certificates shall be rated "AAA" by Standard & Poor's
Ratings Services, a Division of The McGraw-Hill Companies, "AAA" by
Fitch, Inc. and "Aaa" by Moody's Investors Service, Inc.
(n) The Representatives shall have received a letter,
dated such Closing Date and satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than five days prior to such Closing Date for the purposes of this
subsection (n).
(o) The Representatives shall have received evidence
satisfactory to the Underwriters and counsel for the Underwriters
that, on or before the Closing Date, UCC-1 financing statements have
been filed pursuant to the laws of the State of Delaware (and such
other states as may be necessary or desirable pursuant to applicable
state law) reflecting the interest of the Trust in the Receivables
and the proceeds thereof.
(p) The Representatives shall also receive from each
counsel rendering an opinion not otherwise addressed to the
Representatives a letter dated the Closing Date and satisfactory in
form and substance to the Underwriters and counsel for the
Underwriters, stating that the Representatives may rely on the
opinions of such counsel as delivered to Moody's Investors Service,
Inc. and Standard & Poor's Ratings Services, a Division of The
McGraw-Hill Companies and Fitch, Inc. in connection with the rating of
the Certificates.
(q) All proceedings in connection with the transactions
contemplated by this Agreement and the other Basic Documents and all
documents incident hereto and thereto shall be reasonably
satisfactory in form and substance to the Underwriters and counsel
for the Underwriters, and the Underwriters and counsel for the
Underwriters shall have received such information, certificates and
documents as the Underwriters and counsel for the Underwriters may
reasonably request.
(r) The Representatives shall have received evidence
satisfactory to the Underwriters and counsel for the Underwriters
that the Certificates will be duly and validly issued and outstanding
and will be entitled to the benefits of the Pooling and Servicing
Agreement.
The Transferor will furnish you with such conformed copies of
such opinions, certificates, letters and documents as you reasonably
request. Lehman Brothers may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder.
7. Indemnification and Contribution.
(a) The Transferor will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of
or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading and will
reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided,
however, that 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 an untrue statement or alleged
untrue statement in or omission or alleged omission from any of
such documents in reliance upon and in conformity with written
information furnished to the Transferor by any Underwriter
through the Representatives specifically for use therein, it
being understood and agreed that the only such information
furnished by any Underwriter consists of the information
described as such in subsection (b) below.
(b) Each Underwriter will severally and not jointly
indemnify and hold harmless the Transferor against any losses,
claims, damages or liabilities to which the Transferor may become
subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the
omission or the alleged omission to state therein in a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Transferor by
such Underwriter through the Representatives or otherwise
specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Transferor or the Company in
connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the following information in the Prospectus
Supplement furnished on behalf of each Underwriter: the first
sentence of "Structural Summary - ERISA Considerations," the third
sentence of the third paragraph of "ERISA Considerations," the
concession and reallowance figures appearing in "Underwriting" and
the last paragraph on page S-47 of "Underwriting."
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise
than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that
it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party
will not be liable to such indemnified party under this Section for
any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on
any claims that are the subject matter of such action.
(d) If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as
a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate
to reflect the relative benefits received by the Transferor on the
one hand and the Underwriters on the other from the offering of the
Certificates or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Transferor on the
one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Transferor on
the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Transferor bear to the
total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Transferor or
its affiliates on the one hand or by the Underwriters on the other
and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which
is the subject of this subsection (d). Notwithstanding the provisions
of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total
price at which the Certificates underwritten by it and distributed to
the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) or the Act)
shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations
in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Transferor under this Section
shall be in addition to any liability which the Transferor may
otherwise have and shall extend, upon the same terms and conditions,
to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under
this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Transferor, to
each officer of the Transferor who has signed a Registration
Statement and to each person, if any, who controls the Transferor
within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Certificates hereunder on the
Closing Date and the aggregate principal amount of Certificates that such
defaulting Underwriter or Underwriters agreed but failed to purchase does
not exceed 10% of the total principal amount of Certificates that the
Underwriters are obligated to purchase on such Closing Date, the
Representatives may make arrangements satisfactory to the Transferor for
the purchase of such Certificates by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date,
the nondefaulting Underwriters shall be obligated severally, in proportion
to their respective commitments hereunder, to purchase the Certificates
that such defaulting Underwriters agreed but failed to purchase on such
Closing Date. If any Underwriter or Underwriters so default and the
aggregate principal amount of Certificates with respect to which such
default or defaults occur exceeds 10% of the total principal amount of
Certificates that the Underwriters are obligated to purchase on such
Closing Date and arrangements satisfactory to the Representatives and the
Transferor for the purchase of such Certificates by other persons are not
made within 36 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter or the
Transferor or the Company, except as provided in Section 9. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Transferor and of their respective officers and of the
several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any
Underwriter or the Transferor or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery
of and payment for the Certificates. If this Agreement is terminated
pursuant to Section 8 or if for any reason the purchase of the Certificates
by the Underwriters is not consummated, the Transferor shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Transferor and the
Underwriters pursuant to Section 7 shall remain in effect, and if any
Certificates have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Certificates by the Underwriters
is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the occurrence of
any event specified in clause (iii), (iv) or (v) of Section 6(c), the
Transferor will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them
in connection with the offering of the Certificates.
10. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telecopied
and confirmed to the Representatives at Lehman Brothers, 3 World Financial
Center, New York, NY 10285, Attention of: Syndicate Managers (facsimile no.
(212) 526-7010); and if sent to the Transferor, will be mailed, delivered
or telecopied and confirmed to it at The First National Bank of Atlanta,
100 North Main Street, Winston-Salem, North Carolina 27150, Attn: Legal
Department (facsimile no. (336)732-6630); provided, however, that any
notice to an Underwriter pursuant to Section 7 will be mailed, delivered or
telecopied and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7,
and no other person will have any right or obligation hereunder.
12. Representations of Underwriters. The Representatives will
act for the several Underwriters in connection with this financing, and any
action under this Agreement taken by the Representatives will be binding
upon all the Underwriters. Each of the Underwriters represents and warrants
to, and agrees with, the Bank that (w) it has only issued or passed on and
shall only issue or pass on in the United Kingdom any document received by
it in connection with the issue of the Certificates to a person who is of a
kind described in Article 11(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1996 (as amended) or who is
a person to whom the document may otherwise lawfully be issued or passed
on, (x) it has complied and shall comply with all applicable provisions of
the Financial Services Act 1986 and other applicable laws and regulations
with respect to anything done by it in relation to the Certificates in,
from or otherwise involving the United Kingdom and (y) if that Underwriter
is an authorized person under the Financial Services Act 1986, it has only
promoted and shall only promote (as that term is defined in Regulation 1.02
of the Financial Services (Promotion of Unregulated Schemes) Regulations
1991) to any person in the United Kingdom the scheme described in the
Prospectus if that person is of a kind described either in Section 76(2) of
the Financial Services Act 1986 or in Regulation 1.04 of the Financial
Services (Promotion of Unregulated Schemes) Regulations 1991.
13. Severability of Provisions. Any covenant, provision,
agreement or term of the Agreement that is prohibited or is held to be void
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof.
14. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the
matters and transactions contemplated hereby and supersedes all prior
agreements and understandings whatsoever relating to such matters and
transactions.
15. Amendment. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against whom enforcement of the change,
waiver, discharge or termination is sought.
16. Headings. The headings in the Agreement are for the
purposes of reference only and shall not limit or otherwise affect the
meaning hereof.
17. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original but all
such counterparts shall together constitute one and the same Agreement.
18. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
The Transferor hereby submits to the nonexclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The City of
New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Transferor
one of the counterparts hereof, whereupon it will become a binding
agreement between the Transferor and the several Underwriters in accordance
with its terms.
Very truly yours,
THE FIRST NATIONAL BANK OF
ATLANTA
By: /s/ Suzanne Bachman
Name: Suzanne Bachman
Title: Vice President
LEHMAN BROTHERS INC.
Acting on behalf of itself
and Wachovia Securities, Inc.
as the Representatives of
the several Underwriters.
By /s/ Nelson Soares
Name: Nelson Soares
Title:Managing Director
SCHEDULE A
Principal Amount
of Class A
Underwriter Certificates
----------- --------------
Lehman Brothers Inc. $106,250,000
Wachovia Securities, Inc. $106,250,000
Deutsche Bank Securities, $106,250,000
Inc.
Merrill Lynch, Pierce, $106,250,000
Fenner & Smith
Incorporated
Morgan Stanley & Co. $106,250,000
Incorporated
Salomon Smith Barney $106,250,000
Inc.
Total............... $637,500,000
============