Exhibit 10.7.5
Amendment to Affinity Card Agreement
and Facilities Management Agreement
This is an Amendment (this "Amendment"), dated as of November 11, 1998,
to that certain Affinity Card Agreement (the "Affinity Agreement"), dated as of
January 6, 1997, as heretofore amended, by and among Columbus Bank & Trust
Company ("CB&T"), CompuCredit Acquisition Corporation, a Georgia corporation
("CAC-GA") and CompuCredit Corporation, a Georgia corporation ("CompuCredit"),
and to that certain Facilities Management Services Agreement (the "Facilities
Agreement"), dated as of August 1, 1998, by and between CB&T and CompuCredit.
RECITALS
A. Under a proposed transaction among CB&T, CompuCredit Acquisition
Corporation, a Nevada corporation ("CompuCredit Acquisition"), Greenwood Trust
Company ("Seller") and NOVUS Services, Inc. ("Servicer"), CB&T as Purchaser
would acquire certain credit card accounts and related receivables from Seller
and, simultaneously with closing any such acquisition CB&T would transfer the
receivables so acquired to CompuCredit Acquisition. Such agreement as may be
entered into among CB&T, CompuCredit Acquisition and the Seller relating to any
such transaction is referred to herein as the "Sale and Purchase Agreement".
Such agreement as may be entered into among CB&T, CompuCredit Acquisition and
Servicer providing for servicing of the acquired credit card accounts and
related receivables prior to conversion of same to CB&T's system is referred to
herein as the "Interim Servicing Agreement". Such Interim Servicing Agreement,
any assignment and assumption agreement, and any other agreements and
instruments (except for this Amendment) to which CB&T may become a party in
connection with the proposed acquisition of credit card accounts and related
receivables, are hereinafter referred to collectively as the "Related
Agreements".
B. This Amendment sets forth certain agreements between CB&T,
CompuCredit, CAC-GA and CompuCredit Acquisition (i) with respect to the sale of
receivables to CompuCredit Acquisition by CB&T should CB&T close the purchase
from Seller of such receivables and the related credit card accounts, (ii) with
respect to the addition of CompuCredit Acquisition as a party to the Affinity
Agreement and the status under the Affinity Agreement and Facilities Agreement
of such receivables and the related credit card accounts, if so acquired, and
future receivables arising pursuant thereto following such closing, and (iii)
otherwise pertaining to the respective rights and obligations of CB&T,
CompuCredit, CAC-GA and CompuCredit Acquisition.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, CB&T, CompuCredit, CAC-GA and
CompuCredit Acquisition agree as follows:
1. CB&T, CompuCredit, CAC-GA and CompuCredit Acquisition agree that
CompuCredit Acquisition, upon its execution of this Amendment, is added as a
party to the Affinity Agreement, and that CompuCredit, CAC-GA and CompuCredit
Acquisition shall be jointly and severally liable for all obligations of
CompuCredit, CAC-GA or CompuCredit Acquisition, or any two or more of said
corporations, under the Affinity Agreement as herein amended, regardless of
whether such obligations are referred to as the obligations of CompuCredit,
CAC-GA or of CompuCredit Acquisition, or of any two or more of said
corporations.
2. (a) In the event CB&T purchases credit card accounts ("Acquired
Bravo Accounts") and related receivables ("Acquired Bravo Receivables") pursuant
to the Sale and Purchase Agreement and the Assignment and Assumption Agreement
referred to therein, CompuCredit Acquisition hereby irrevocably and
unconditionally agrees that it shall, at the Closing of said purchase and
simultaneously therewith, conclude the purchase from CB&T of 100% of CB&T's
interest in the Acquired Bravo Receivables so acquired from Seller, paying CB&T
as the purchase price therefor, in immediately available funds, an amount equal
to 100% of the purchase price required to be paid by CB&T at such Closing to the
Seller as the purchase price for the Acquired Bravo Receivables, the Acquired
Bravo Accounts and any other assets acquired by CB&T from Seller at Closing.
(b) At CB&T's option, CompuCredit Acquisition's payment of the
purchase price as described in Section 2(a) above shall either be by wire
transfer to CB&T's account or wire transfer directly to the account of Seller in
payment of the purchase price due from CB&T to Seller in connection with the
Closing of the Sale and Purchase Agreement.
(c) The Acquired Bravo Accounts, and any other assets acquired
by CB&T pursuant to the Sale and Purchase Agreement (except the Acquired Bravo
Receivables), shall remain the property of CB&T. The Acquired Bravo Accounts,
the Acquired Bravo Receivables, and receivables arising on or after the Closing
Date pursuant to the Acquired Bravo Accounts, shall,
(i) commencing as of the Closing Date, be subject to the
terms of the Affinity Agreement, and
(ii) commencing as of the "Conversion Date" (as defined in
the Sale and Purchase Agreement), be subject to the
Facilities Agreement, to the extent hereinafter
specified in this Amendment.
3. At the Closing, upon consummation of the purchase by CB&T from
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Seller and the payment by CompuCredit Acquisition of the purchase price due CB&T
with respect to the sale of Acquired Bravo Receivables by CB&T to CompuCredit
Acquisition, CB&T and CompuCredit Acquisition shall execute and deliver an
assignment and assumption and any other instruments as may be requested by CB&T,
each in form and substance satisfactory to CB&T, reflecting such sale to
CompuCredit Acquisition, of all of CB&T's interest in the Acquired Bravo
Receivables, and the assumption by CompuCredit Acquisition of all of CB&T's
obligations under the Purchase and Sale Agreement and the Related Agreements.
Upon completion of the post-Closing settlement between CB&T
and Seller (including, without limitation, any repurchase of Accounts pursuant
to Section 7.1 of the Sale and Purchase Agreement) adjusting the Purchase Price
under the Sale and Purchase Agreement, a like adjustment shall be made in the
purchase price paid by CompuCredit Acquisition to CB&T hereunder for the
Acquired Bravo Receivables and CompuCredit Acquisition or CB&T, as the case may
be, shall remit the amount of the adjustment to the other.
4. CB&T hereby covenants and agrees with CompuCredit, CAC-GA and
CompuCredit Acquisition as follows:
(a) CB&T shall provide an opinion of counsel dated as of
the Closing of the Sale and Purchase Agreement and
relating to same, and an opinion of counsel dated as of
the same date and relating to the Interim Servicing
Agreement, both in substantially the form attached
hereto as EXHIBIT A.
(b) CB&T shall provide an opinion of counsel dated as of
the Closing Date and addressed to CompuCredit
Acquisition, and to such other parties as CompuCredit
Acquisition may reasonably request or as may reasonably
be required to facilitate the closing of CompuCredit
Acquisition's securitization transaction (the
"Securitization") relating to CompuCredit Acquisition's
interest in the Acquired Bravo Receivables and other
Credit Card Receivables arising pursuant to the
Acquired Bravo Accounts and sold from time to time by
CB&T to CompuCredit Acquisition; such opinion to be in
form and substance mutually agreed upon between CB&T
and CompuCredit Acquisition and relating to
(i) CB&T's due organization and good standing as
a Georgia state-chartered bank, and
(ii) CB&T's corporate power and authority to enter
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into and perform its obligations under the
Receivables Purchase Agreement (as
hereinafter defined), and
(iii) the due authorization, execution and delivery
by CB&T of the Receivables Purchase
Agreement, and
(iv) CB&T's corporate power and authority to enter
into and perform its obligations under the
Subservicer Letter Agreement (as hereinafter
defined); and
(v) the due authorization, execution and delivery
by CB&T of the Subservicer Letter Agreement;
and
specifying, to such counsel's knowledge, whether
(vi) no consent, approval, authorization or order
of any governmental agency or body was or is
required for the execution and delivery by
CB&T of the Receivables Purchase Agreement or
the performance by CB&T of its obligations
thereunder, except such as have been obtained
and the filing of Uniform Commercial Code
financing statements relating to the
Purchased Assets (as such term is defined in
the Receivables Purchase Agreement); and
(vii) neither the execution and delivery of the
Receivables Purchase Agreement by CB&T nor
the performance by CB&T of the transactions
therein contemplated, nor the fulfillment of
the terms thereof by CB&T did or will (A)
result in any violation of any statute or
regulation or any order or decree of any
court or governmental authority binding upon
CB&T or its property, or (B) conflict with,
or result in a breach or violation of any
term or provision, or result in a default
under any of the terms and provisions, of
CB&T's articles of incorporation or by-laws
or any material indenture, loan agreement or
other material agreement known to such
counsel to which CB&T is a party or by which
CB&T is bound; and
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(viii) there are no legal governmental proceedings
pending (or, if to such counsel's knowledge
any are pending, listing same) to which CB&T
is a party or subject which, individually or
in the aggregate would have a material
adverse effect on the ability of CB&T to
perform its obligations under the Receivables
Purchase Agreement, or which assert the
invalidity thereof, or which seek to prevent
any of the transactions contemplated thereby.
(c) Notwithstanding anything else to the contrary, CB&T
hereby consents to the transfer and assignment, prior
to the "Conversion Date" as defined in the Sale and
Purchase Agreement, of all of its interest in the
Acquired Bravo Assets and its rights and obligations
under the Sale and Purchase Agreement and Interim
Servicing Agreement to any third party designated by
CompuCredit or CompuCredit Acquisition; provided,
however, that such assignment shall not affect the
rights of CB&T for any indemnification, or the rights
of CB&T under those sections of the Sale and Purchase
Agreement and Interim Servicing Agreement captioned "No
Proceedings or Claims". It is further agreed that,
notwithstanding any inconsistent provisions in the
sections of the Sale and Purchase Agreement and Interim
Servicing Agreement captioned "Consent of Purchaser",
CB&T's consent shall be limited to that set forth
herein.
(d) CB&T agrees, in connection with the Securitization,
(i) to execute and deliver a receivables purchase
agreement ("Receivables Purchase Agreement"),
and
(ii) to execute and deliver a subservicer letter
agreement ("Subservicer Letter Agreement"),
in each case in substantially the form as the
comparable document executed by CB&T on April 17,
1998, but both revised to reflect in any
representations or warranties of CB&T any changed
circumstances the failure to reflect which would
make such representation or warranty untrue as of
the date of execution of such Receivables Purchase
Agreement.
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(e) Upon the reasonable request of CompuCredit or
CompuCredit Acquisition, CB&T agrees to cooperate with
and assist CompuCredit and CompuCredit Acquisition in
consummating the Securitization, such cooperation and
assistance to be provided at the expense of CompuCredit
and CompuCredit Acquisition.
5. Commencing following the Closing of the purchase by CompuCredit
Acquisition from CB&T of the Acquired Bravo Receivables,
(a) "Credit Card Receivables" as defined in the Affinity
Agreement shall include all amounts owing to CB&T on
the Acquired Bravo Accounts including, without
limitation, principal balances from outstanding
purchases and cash advances, accrued finance charges,
late charges, returned check charges and any other
charges and fees, whether or not billed, as of the
close of business on a given day, less any payments and
credits received in respect of the Acquired Bravo
Accounts prior to the close of business on such day,
(b) each of the Acquired Bravo Accounts shall be considered
a "Credit Card Account" or "Account" pursuant to the
Affinity Agreement,
(c) each credit card associated with the Acquired Bravo
Accounts shall be considered a "Credit Card" or "Card"
pursuant to the Affinity Agreement,
(d) each individual in whose name an Acquired Bravo Account
is established shall be considered a "Cardholder" under
the Affinity Agreement,
(e) each agreement between CB&T and a Cardholder for the
extension of credit in connection with an Acquired
Bravo Account shall be considered a "Cardholder
Agreement" under the Affinity Agreement,
(f) the net outstanding book principal balances of new
purchases and cash advances made on the Acquired Bravo
Accounts on and after the Closing Date shall be
considered "Program Receivables" pursuant to the
Affinity Agreement,
(g) on and after the "Conversion Date" (as defined in the
Sale and Purchase Agreement) each of the Acquired Bravo
Accounts shall be considered an "Account" pursuant to
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the Facilities Agreement, and
(h) on and after the "Conversion Date" (as defined in the
Sale and Purchase Agreement) each credit card
associated with the Acquired Bravo Accounts shall be
considered a "CompuCredit Card" pursuant to the
Facilities Agreement,
and, as such, each of the foregoing shall be subject to the various agreements
of the parties applicable thereto pursuant to those terms and conditions of the
Affinity Agreement and Facilities Agreement as are not inconsistent with the
terms of this Amendment, but the terms of this Amendment shall control to the
extent of any inconsistency; provided, however, that any receivables arising in
the Acquired Bravo Assets will be purchased by CompuCredit Acquisition.
6. Notwithstanding any provision of the Affinity Agreement or of the
Facilities Agreement or of the Sale and Purchase Agreement or any Related
Agreement to the contrary, except as expressly stated below in Section 8:
(a) the Credit Card Receivables consisting of the Acquired
Bravo Receivables sold by CB&T to CompuCredit Acquisition at the Closing shall
be sold without recourse to CB&T; and
(b) Program Receivables and any other Credit Card Receivables
arising pursuant to the Acquired Bravo Accounts and sold from time to time by
CB&T to CompuCredit Acquisition or to any third party designated by CompuCredit
or CompuCredit Acquisition, shall be so sold without recourse to CB&T; and
(c) Any Acquired Bravo Accounts as may be sold by CB&T to
CompuCredit Acquisition or to any third party designated by CompuCredit or
CompuCredit Acquisition, shall be so sold without recourse to CB&T; and
(d) CB&T makes no representation or warranty and shall have no
obligation to CompuCredit, CAC-GA or CompuCredit Acquisition (including but not
limited to any obligation to indemnify or hold harmless CompuCredit, CAC-GA or
CompuCredit Acquisition or any other person), (i) with respect to any matter or
condition (regardless of when asserted or discovered) wholly or partly relating
to, or having its origins in, the period prior to the Closing of the Sale and
Purchase Agreement, or (ii) with respect to any other matter to which the
indemnification obligations of CompuCredit, CAC-GA and CompuCredit Acquisition
under Section 7 below are applicable.
7. Notwithstanding any provision of the Affinity Agreement or of
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the Facilities Agreement or of the Sale and Purchase Agreement or any Related
Agreement to the contrary, CompuCredit, CAC-GA and CompuCredit Acquisition
hereby jointly and severally agree to indemnify and hold harmless, CB&T and its
parent and affiliated corporations, and each of their directors, officers,
employees, agents and affiliates and permitted assigns (the "Indemnified CB&T
Parties"), from and against any and all existing and future claims, demands,
fines, taxes, penalties, damages, liabilities, losses (which shall include, but
not be limited to, all "Losses" as that term is defined in the existing
indemnification provisions of the Affinity Agreement), costs, and expenses of
any kind whatsoever (including but not limited to reasonable attorneys' and
accountants' fees), arising out of or relating to the Sale and Purchase
Agreement or any Related Agreements or any of the transactions contemplated
therein or herein or any of the Acquired Bravo Accounts or Acquired Bravo
Receivables or any other receivables related to the Acquired Bravo Accounts, and
including, without limiting the generality of the foregoing:
(a) taxes of any kind (including but not limited to "Taxes" as
defined in the Sale and Purchase Agreement), whether accruing under the terms of
the Sale and Purchase Agreement or any Related Agreements, or as a result of any
of the transactions contemplated therein or herein;
(b) any obligations of CB&T paid or incurred pursuant to the
Sale and Purchase Agreement or any of the Related Agreements, and any claims,
defenses or offsets of any kind asserted by the Seller or Servicer, or by any
other person, under or in connection with the Sale and Purchase Agreement, or
under or in connection with any Related Agreements, and including without
limitation claims asserted under or in respect of any provisions pursuant to
which CB&T assumes any liabilities or makes any representations or warranties or
agrees to provide indemnification or otherwise undertakes any obligation;
(c) claims, defenses or offsets of any kind asserted by or on
behalf of any cardholders or guarantors under any of the Acquired Bravo
Accounts;
(d) claims or demands of regulatory or administrative agencies
with respect to the Sale and Purchase Agreement or any Related Agreements or the
transactions contemplated therein or herein (except to the extent CB&T shall
have breached any of its representations set forth in Section 8 hereof and the
claim or demand of the regulatory or administrative agency directly results from
the state of affairs to which such breach relates), or with respect to any of
the Acquired Bravo Accounts;
(e) any losses on any of the Acquired Bravo Accounts or
8
Acquired Bravo Receivables or any other receivables related to the Acquired
Bravo Accounts, including but not limited to credit losses and fraud losses; and
(f) conversion costs and expenses, and any other costs and
expenses incurred under or in connection with the negotiation, execution,
delivery and performance of the Sale and Purchase Agreement and any Related
Agreements;
provided, however, that none of CompuCredit, CAC-GA or CompuCredit Acquisition
shall have any obligation to indemnify any CB&T Indemnified Party for a loss
amount claimed under this Section 7 if CB&T shall have breached any of its
representations set forth in Section 8 of this Amendment and the loss in
question directly results from the state of affairs to which such breach
relates.
The indemnification provided for in this Section 7 shall be in addition
to, and not in limitation of, any indemnification obligations of CompuCredit,
CAC-GA or CompuCredit Acquisition under the existing provisions of the Affinity
Agreement or the Facilities Agreement. Further, CB&T, at its option, may elect
to have the section of the Affinity Agreement entitled "Procedures for
Indemnification" apply to any and all matters for which indemnification is
provided pursuant to this Section 7.
CompuCredit, CAC-GA and CompuCredit Acquisition shall provide copies of
their financial statements to CB&T on a quarterly basis.
8. CB&T represents to CompuCredit, CAC-GA and CompuCredit Acquisition
that, as of the time of execution and delivery by CB&T of the Sale and Purchase
Agreement:
(a) CB&T is a state-chartered bank, validly existing and in
good standing under the laws of the State of Georgia.
(b) CB&T has all necessary corporate power and authority to
enter into the Sale and Purchase Agreement, and the
Assignment and Assumption Agreement and Interim
Servicing Agreement referred to therein, and to perform
all of the obligations to be performed by it under said
Agreements. The Sale and Purchase Agreement, Assignment
and Assumption Agreement and Interim Servicing
Agreement and the consummation by CB&T of the
transactions contemplated thereby have been duly and
validly authorized by all necessary corporate action of
CB&T. The Sale and Purchase Agreement has been duly
executed and delivered by CB&T. The Sale and Purchase
Agreement,
9
Assignment and Assumption Agreement and Interim
Servicing Agreement, once duly executed and delivered
by all parties thereto, shall constitute the valid
and binding obligations of CB&T, enforceable against
CB&T in accordance with their respective terms
(except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium,
receivership, conservatorship, the rights and
obligations of receivers and conservators of insured
depository institutions under 12 U.S.C.ss.1821(d) and
(e) and other laws relating to or affecting
creditors' rights generally and by general equity
principles).
(c) To CB&T's knowledge, neither the execution and delivery
of the Sale and Purchase Agreement, and the Assignment
and Assumption Agreement and Interim Servicing
Agreement referred to therein, by CB&T nor the
consummation of the transactions contemplated thereby
by CB&T will (i) conflict with, result in the breach
of, constitute a default under, or accelerate the
performance required by, the terms of any order, law,
regulation, contract, instrument or commitment to which
CB&T is a party or by which CB&T is bound, (ii) violate
the organizational document of CB&T, (iii) require any
consent, approval, authorization or filing (other than
UCC filings) under any law, regulation, judgment,
order, writ, decree, permit or license to which CB&T is
a party or by which CB&T is bound, or (iv) require the
consent or approval of any other party to any contract,
instrument or commitment to which CB&T is a party or by
which CB&T is bound, other than the approvals of
regulatory authorities, if any, which have been
obtained or will be obtained prior to or on the Closing
Date of the Sale and Purchase Agreement. To CB&T's
knowledge, CB&T is not subject to any agreement or
understanding with any regulatory authority which would
prevent the consummation by CB&T of the transactions
contemplated by the Sale and Purchase Agreement and the
Assignment and Assumption Agreement and Interim
Servicing Agreement referred to therein.
(d) CB&T has not agreed to pay any fee or commission to any
agent, broker, finder, or other person for or on
account of services rendered as a broker or finder in
connection with the Sale and Purchase Agreement or the
transactions contemplated thereby which would give rise
to any valid claim against the Seller under the Sale
and Purchase
10
Agreement for any brokerage commission or finder's fee
or like payment.
(e) To CB&T's knowledge, there is no federal or state
statute, rule or regulation, or order or rule of any
federal or state regulatory agency, which would prevent
CB&T from purchasing the Acquired Bravo Accounts or
Acquired Bravo Receivables or other assets to be
acquired by CB&T pursuant to the Sale and Purchase
Agreement.
(f) CB&T is qualified to participate in, and is a member in
good standing of, the Visa credit card programs.
As used in the foregoing representations, CB&T's knowledge refers to the actual
knowledge of any of CB&T's officers; accordingly, for all purposes of this
Amendment representations made above "To CB&T's knowledge" shall be deemed to
have been breached only if the matters so represented are not true within the
actual knowledge of said officers at the time as of which such representations
are made as hereinabove set forth.
9. The provisions of this Amendment shall survive the execution,
delivery and termination or expiration of the Sale and Purchase Agreement and
any Related Agreements, the Closing of the Sale and Purchase Agreement, the sale
by CB&T of the Acquired Bravo Receivables to CompuCredit Acquisition, the
execution, delivery, and termination or expiration of the Receivables Purchase
Agreement and Subservicer Letter Agreement and any related transactions, the
execution, delivery and termination or expiration of any other transactions
relating to the securitization or other disposition of any of the Acquired Bravo
Assets or any receivables arising on or after the Closing date pursuant to the
Acquired Bravo Accounts, the conversion of Acquired Bravo Accounts to CB&T's
system, the expiration or termination of the Affinity Agreement, and the
expiration or termination of the Facilities Agreement.
10. In the event of any inconsistency between any provisions of this
Amendment and any provisions of:
(a) the existing Affinity Agreement or the existing
Facilities Agreement, or
(b) the Sale and Purchase Agreement, or
(c) any of the Related Agreements, or
(d) any other agreements to which CB&T and/or CompuCredit,
CAC-GA or CompuCredit Acquisition may now or hereafter
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be a party to the extent such agreements affect any
matters which are the subject of Sections 6, 7 and 9 of
this Amendment,
the provisions of this Amendment shall control to the extent of such
inconsistency.
11. The invalidity or unenforceability of any provision of this
Amendment shall not affect the validity or enforceability of any other
provision.
12. Except as herein amended, the Affinity Agreement and Facilities
Agreement shall continue in effect in accordance with their respective terms.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date set forth above.
CB&T: CompuCredit:
COLUMBUS BANK AND TRUST COMPANY COMPUCREDIT CORPORATION
By: By: /s/ Xxxxx X. Xxxxxx
---------------------------- ------------------------
CAC-GA:
COMPUCREDIT ACQUISITION CORPORATION
By: /s/ Xxxxx X. Xxxxxx
----------------------------
CompuCredit Acquisition:
COMPUCREDIT ACQUISITION CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date set forth above.
CB&T: CompuCredit:
COLUMBUS BANK AND TRUST COMPANY COMPUCREDIT CORPORATION
By: /s/ X. Xxxxxx Xxxxxxxxxxx By:
---------------------------- ------------------------
CAC-GA:
COMPUCREDIT ACQUISITION CORPORATION
By:
----------------------------
CompuCredit Acquisition:
COMPUCREDIT ACQUISITION CORPORATION
By:
-----------------------------
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EXHIBIT A
CompuCredit Acquisition Corporation
----------------
----------------
Ladies and Gentlemen:
I am Deputy General Counsel of Synovus Financial Corp., the parent
company of Columbus Bank and Trust Company, a state bank chartered under the
laws of the State of Georgia ("CB&T"). This opinion is being provided to you in
connection with the Sale and Purchase Agreement ("Sale and Purchase Agreement"),
dated as of ___________, 1998 by and among Greenwood Trust Company, CompuCredit
Acquisition Corporation ("CAC"), and CB&T.
As the basis for rendering the following opinions, I, or attorneys
under my supervision, have examined, or caused to be examined, a copy of the
Sale and Purchase Agreement and originals or copies certified or otherwise
identified to my satisfaction of such certificates, records, other agreements
and instruments and documents as I, or such attorneys, have deemed necessary or
advisable. In such examination, the genuineness of all signatures (other than
those of CB&T), the authenticity of all documents submitted as originals and the
conformity to the originals of all documents submitted as copies have been
assumed. Also, as to matters of fact expressed herein, I have relied upon
statements, representations or certificates of the responsible officers of CB&T
and public officers.
I have assumed that all parties to the Sale and Purchase Agreement
other than CB&T have the power and authority to enter into and perform their
obligations under the Sale and Purchase Agreement, respectively, and that the
Sale and Purchase Agreement was duly authorized, executed and delivered by, and
constitutes the legal, valid and binding obligation of each of the parties
thereto, other than CB&T, enforceable against such parties in accordance with
its terms.
In this opinion, the phrase "to my knowledge" refers to my actual
knowledge or to the actual knowledge of an attorney under my supervision in
connection with our review of the Sale and Purchase Agreement and the
information, inquiries and investigations described in the preceding paragraphs.
In giving the opinions set forth below, you should note that I am a
member of the bar of the State of Georgia and I express no opinion other than
under the laws of the Sate of Georgia and the Federal laws of the United States
of America.
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Based on the foregoing, I am of the opinion that:
(i) CB&T is a Georgia state-chartered bank in good standing, duly
organized and validly existing under the laws of the State of Georgia;
(ii) CB&T had and has full corporate power and authority to enter into
and perform its obligations under the Sale and Purchase Agreement;
(iii) the Sale and Purchase Agreement has been duly authorized,
executed and delivered by CB&T;
(iv) to my knowledge, no consent, approval, authorization or order of
any governmental agency or body was or is required for the execution and
delivery by CB&T of the Sale and Purchase Agreement or the performance by CB&T
of its obligations thereunder, except such as have been obtained and the filing
of Uniform Commercial Code financing statements;
(v) to my knowledge, neither the execution and delivery of the Sale and
Purchase Agreement by CB&T nor the performance by CB&T of the transactions
therein contemplated, nor the fulfillment of the terms thereof by CB&T did or
will (A) result in any violation of any statute or regulation or any order or
decree of any court or governmental authority binding upon CB&T or its property,
or (B) conflict with, or result in a breach or violation of any term or
provision, or result in a default under any of the terms and provisions, of
CB&T's articles of incorporation or by-laws or any material indenture, loan
agreement or other material agreement known to me to which CB&T is a party or by
which CB&T is bound;
(vi) to my knowledge, there are no legal or governmental proceedings
pending to which CB&T is a party or subject which, individually or in the
aggregate, would have a material adverse effect on the ability of CB&T to
perform its obligations under the Sale and Purchase Agreement, or which assert
the invalidity thereof, or which seek to prevent any of the transactions
contemplated thereby.
My opinions are subject to: (a) limitations imposed by bankruptcy,
insolvency, reorganization, arrangement, fraudulent conveyance, moratorium, or
other laws relating to or affecting the rights of creditors generally, (b)
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or in law; (c) the unenforceability of
rights to indemnification and contribution which may be limited by applicable
law or equitable principles or as otherwise may be unenforceable as against
public policy; and (d) the unenforceability under certain circumstances of
provisions imposing penalties, forfeitures, late payment charges or an increase
in
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interest rate upon delinquency in payment or the occurrence of any event of
default.
This opinion is solely for your benefit and may not be relied upon or
used by, circulated, quoted or referred to, nor may copies hereof be delivered
to, any other person without my prior written approval. I disclaim any
obligation to update this opinion letter for events occurring or coming to our
attention after the date hereof.
Very truly yours,
Xxxxxxxx Xxxxxx
