Exhibit 4.3
WACHOVIA CREDIT CARD MASTER TRUST
SERIES 1999-1
Class A Floating Rate Asset Backed Certificates,
Series 1999-1
UNDERWRITING AGREEMENT
March 17, 1999
Credit Suisse First Boston Corporation,
Wachovia Capital Markets, Inc.
As Representatives of the
Several Underwriters
c/o Credit Suisse First Boston Corporation
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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 Credit Suisse First Boston Corporation
and Wachovia Capital Markets, Inc. as representatives of the several
underwriters (the "Representatives") of $775,000,000 principal amount of
Class A Floating Rate Asset Backed Certificates, Series 1999-1 (the "Class
A Certificates") of Wachovia Credit Card Master Trust (the "Trust"). The
Class A Certificates will be issued pursuant to (a) a Pooling and Servicing
Agreement between the Bank, as Transferor and as Servicer, and The Bank of
New York (Delaware), as Trustee, dated as of October 26, 1995 (the "P&S
Agreement") and (b) the Series 1999-1 Supplement to the P&S Agreement, to
be dated as of March 24, 1999 (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 March 24, 1999 (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. 33-99442),
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 Class A 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 fourth quarter of 1998 and Form 10-K for
1998. 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 Class A 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 Class A 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 Class A Certificates, the principal
amounts of Class A Certificates, set forth opposite the names of the
Underwriters in Schedule A hereto.
The Transferor will deliver against payment of the purchase price
the Class A Certificates in the form of one or more permanent global
securities in definitive form (the "Global Certificates") deposited with
the Trustee as custodian for The Depository Trust Company ("DTC") and
registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent global securities will be held only in book-entry form through
DTC, except in the limited circumstances described in the Prospectus.
Payment for the Class A Certificates shall be made by the Underwriters in
Federal (same day) funds by wire transfer to an account previously
designated to Credit Suisse First Boston by the Transferor at 10:00 a.m.
(New York time), on March 24, 1999, 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 Class A 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 Class
A Certificates. The Global Certificates will be made available for
checking at the office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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 Class A 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation I, ▇▇▇▇▇▇,
Peabody & Co., Incorporated and ▇▇▇▇▇▇ 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 "▇▇▇▇▇▇/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 Class A Certificates covered thereby and the terms thereof
not otherwise specified in the Prospectus, the price at which such
Class A 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 Class
A 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 Class A
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, on the business day following the execution and
delivery of this Agreement. 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 Class A 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 Class A 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 Class A 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 Class A
Certificates under the Exchange Act within 120 days after the end of
the fiscal year of the Trust during which the offering of the Class A
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 Class A 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 Class A 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 Class A 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 rating provided with
respect to the Class A 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 Class A Certificates.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Class
A 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
Class A Certificates and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for the Class A 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 Class A Certificates.
(d) The Representatives shall have received from ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇., 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 Class A 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, 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 Class A Certificates to which it is
a party, or (B) the issuance or sale of the Class A 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 Class A 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 Class A 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 best 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 Class A Certificates, (ii) seeking to prevent the
issuance of the Class A Certificates or the consummation of any of
the transactions contemplated by any of the Basic Documents or the
Class A 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 Class A
Certificates or (v) seeking to affect adversely the income tax
attributes of the Trust or the Class A 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
best of 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, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special tax counsel to the Transferor, such
opinion or opinions dated the Closing Date, substantially to the effect
that the Class A 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 Class A Certificates will be characterized as
debt for Federal income tax purposes, the Class A 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, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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 Class A 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, ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
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, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Underwriters, such
opinion or opinion, dated the Closing Date, substantially to the effect
that:
(i) The Class A 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
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) ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & 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, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the
Transferor, such opinion or opinions dated the Closing Date and
satisfactory in form and substance to you and your counsel, 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 ▇▇▇▇▇▇▇, Woods,
Battle & ▇▇▇▇▇▇ 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 ▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇, counsel to the holder of the Collateral Interest (the
"Enhancement Provider") dated the Closing Date, and satisfactory in form
and substance to you and your counsel, to the effect that:
(i) The Enhancement Provider has received a license
from the Superintendent of Banks of the State of New York to maintain
a branch for the conduct of a banking business;
(ii) the Enhancement Provider has the power and
authority under the Banking Law of the State of New York to enter into
the Loan Agreement;
(iii) No authorization, consent or approval of or by
any governmental authority of the United States or the State of New
York is necessary for the execution, delivery and performance by the
Enhancement Provider of the Loan Agreement, except such
authorizations, consents and approvals as are in full force and
effect;
(iv) The Loan 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 against the Enhancement Provider in accordance with its
terms, except as such enforceability may be limited by (i) bankruptcy,
insolvency, reorganization, liquidation or other similar laws
affecting the enforcement of creditors' rights as they may be applied
in the event of the bankruptcy, insolvency, reorganization,
liquidation, or similar event of the Enhancement Provider, (ii) a
moratorium or similar occurrence affecting the Enhancement Provider or
(iii) general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
In rendering such opinion, ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ 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 you and your counsel, which opinion 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 Loan Agreement and the binding
effect of the Loan Agreement, and (iii) the enforceability in Germany
of a judgment obtained under the Loan Agreement in a United States
Federal court or in a court of the State of New York; any such
reliance letter shall include all matters that are contained in the
opinion of foreign counsel delivered to the Transferor pursuant to the
Loan Agreement;
(l) The Representatives shall have received a certificate,
dated the Closing Date and satisfactory in form and substance to you
and your counsel, of the Chairman, President or any Vice President of
the Transferor, in which such officers, to the best of 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 you and your counsel that the Class A Certificates
shall be rated "AAA" by Standard & Poor's Ratings Services, a Division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, "AAA" by Fitch IBCA, Inc. and "Aaa" by
▇▇▇▇▇'▇ 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 ▇▇▇▇▇'▇ Investors Service,
Inc. and Standard & Poor's Ratings Services, a Division of The ▇▇▇▇▇▇-
▇▇▇▇ Companies and Fitch IBCA, 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 Class B 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. Credit Suisse First Boston 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-45 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 Class A 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 Class A
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 Class A Certificates hereunder on
the Closing Date and the aggregate principal amount of Class A Certificates
that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total principal amount of Class A
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 Class A 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 Class A 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 Class A
Certificates with respect to which such default or defaults occur exceeds
10% of the total principal amount of Class A 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 Class A 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 Class A Certificates. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Class A 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
Class A 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 Class A 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 Class A 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 Credit Suisse First Boston
Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention of: Asset
Backed Securities (facsimile no. (▇▇▇)▇▇▇-▇▇▇▇); and if sent to the
Transferor, will be mailed, delivered or telecopied and confirmed to it at
The First National Bank of Atlanta, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Legal Department (facsimile no. (▇▇▇)▇▇▇-▇▇▇▇);
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 Class A 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 Class A 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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
CREDIT SUISSE FIRST BOSTON CORPORATION
Acting on behalf of itself
and Wachovia Capital Markets, Inc.
as the Representatives of
the several Underwriters.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
SCHEDULE A
Principal Amount
of Class A
Underwriter Certificates
----------- -----------------
Credit Suisse First
Boston Corporation $ 348,749,000
Wachovia Capital Markets, Inc. $ 271,250,000
Chase Securities Inc. $ 51,667,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. $ 51,667,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. $ 51,667,000
--------------
Total . . . . . . . . . . . . $ 775,000,000
==============
