Exhibit 10.2
EXECUTION COPY
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INDEMNIFICATION AGREEMENT (the "Indemnification Agreement" or the
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"Agreement"), dated January 18, 2001, by and among MBIA INSURANCE CORPORATION
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("MBIA"), CARMAX AUTO SUPERSTORES, INC., as seller (the "Seller"), POOLED AUTO
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SECURITIES SHELF LLC (the "Depositor"), FIRST UNION CORPORATION ("First Union
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Corp.") and FIRST UNION SECURITIES, INC. ("First Union Securities").
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The Depositor is the originator of the CarMax Auto Owner Trust 2001-1
(the "Trust") consisting of a pool of motor vehicle installment sales contracts
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and certain other assets and rights as described in that certain Amended and
Restated Trust Agreement dated as of January 1, 2001 (the "Trust Agreement")
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among the Depositor and Wilmington Trust Company, as owner trustee (the "Owner
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Trustee").
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The Depositor has agreed to sell to the underwriters (the
"Underwriters") listed in Schedule A to the Underwriting Agreement, dated as of
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January 18, 2001 (the "Underwriting Agreement"), between the Depositor and First
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Union Securities, as representative of the several Underwriters (the
"Representative"), the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes
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and the Class A-4 Notes (collectively the "Notes") and certain certificates
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evidencing undivided fractional interests in the Trust (the "Certificates") (the
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Notes and the Certificates, collectively the "Securities"). The Securities are
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secured by the assets of the Trust.
In anticipation of the public offering and sale of the Securities, the
Depositor as registrant on behalf of the Trust, filed with the Securities and
Exchange Commission (the "Commission") a registration statement No. 333-45546
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and certain amendments thereto on Form S-3 for the registration under the
Securities Act of 1933, as amended (the "Act") of the Securities. The
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registration statement, including exhibits and all amendments thereto, in the
form in which it became effective under the Act on December 20, 2000 (the
"Effective Date"), is referred to herein as the "Registration Statement". The
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prospectus supplement dated January 18, 2001 (the "Prospectus Supplement"),
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supplementing the Prospectus dated January 18, 2001 (the "Prospectus"), in the
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form in which it was filed with the Commission pursuant to Rule 424(b), together
with the Registration Statement are referred to herein as the "Offering
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Documents".
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First Union Corp. is the indirect beneficial owner of the Depositor
and direct beneficial owner of First Union Securities.
MBIA is authorized to transact a financial guaranty insurance business
in the State of New York and has agreed to issue to the Indenture Trustee a
financial guaranty insurance policy (the "Policy") for the benefit of the
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holders of the Securities.
MBIA provided certain information and financial statements to the
Depositor for inclusion in or incorporation by reference into the Prospectus
Supplement. Such information and financial statements are presented under the
caption "Description of the Insurer" in the Prospectus Supplement or
incorporated by reference therein. Such information, to the extent included in
the Prospectus Supplement or incorporated by reference therein, is referred to
herein as the "MBIA Information". MBIA reviewed the Prospectus Supplement and
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approved the presentation of the MBIA Information therein.
Capitalized terms used herein but not otherwise defined shall have the
meanings assigned thereto in the Prospectus Supplement.
For good and valuable consideration, receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. MBIA Agreements and Representations. MBIA agrees and represents
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as follows:
(a) MBIA is a duly incorporated and validly existing New York
domiciled stock insurance company which is licensed, under the laws of the
State of New York, to write financial guarantee insurance and is in good
standing, qualified or licensed to do business in all other jurisdictions
in which such good standing, qualification or licensing is necessary,
except for any state where failure to be so qualified, licensed or in good
standing would not materially and adversely affect MBIA's ability to
perform its obligations under the Policy.
(b) MBIA has the corporate power and authority to issue the
Policy and execute and deliver this Agreement and the Insurance Agreement
and to perform all its obligations hereunder and thereunder.
(c) The issuance of the Policy and the execution, delivery and
performance of this Agreement and the Insurance Agreement have been duly
authorized by all necessary action (corporate and other). No further
approvals or filings of any kind (other than filing of the Policy with the
Superintendent of Insurance of the New York State Insurance Department
within 30 days following the issuance of the Policy), including, without
limitation, any further approvals of or further filing with any
governmental agency or other governmental authority, or any approval of
MBIA's board of directors or stockholders, are necessary for the Policy to
constitute the legal, valid and binding obligation of MBIA.
(d) The Policy, when issued and, assuming due authorization,
execution and delivery of this Agreement by the parties hereto (other than
MBIA), this Agreement and the Insurance Agreement, will constitute the
legal, valid and binding obligations of MBIA, enforceable in accordance
with their respective terms, subject, as to the enforcement of remedies, to
(a) applicable bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting the enforceability of creditors' rights generally
and to general principles of equity, in the event of such an occurrence
with respect to MBIA; (b) the qualification that the remedy of specific
performance may be subject to equitable defenses and to the discretion of
the court before which any proceedings with respect thereto may be brought;
and (c) the enforceability of rights to indemnification under this
Agreement which may be subject to limitations of public policy under
applicable securities laws.
(e) The MBIA Information in the Prospectus Supplement on the
date thereof did not, and on January 25, 2001 (the "Closing Date"), will
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not, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to
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make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(f) The Policy and any amendments thereto shall be filed with
the Superintendent of the New York State Insurance Department within 30
days of their use, if not previously so filed.
(g) There are no actions, suits, proceedings or investigations
pending or, to the best of MBIA's knowledge, threatened against it at law
or in equity or before or by any court, governmental agency, board or
commission or any arbitrator which, if decided adversely, would materially
and adversely affect its condition (financial or otherwise) or operations
of it or would materially and adversely affect its ability to perform its
obligations under this Agreement, the Policy or the Insurance Agreement.
(h) The consolidated financial statements of MBIA, a wholly
owned subsidiary of MBIA Inc., and its subsidiaries as of December 31, 1999
and December 31, 1998 and for each of the three years in the period ended
December 31, 1999 incorporated by reference in the Prospectus Supplement
(the "MBIA Audited Financial Statements"), present fairly in all material
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respects the financial condition of MBIA and its subsidiaries as of such
date and for the period covered by such statements in accordance with
generally accepted accounting principals consistently applied. The
consolidated financial statements of MBIA and its subsidiaries as of
September 30, 2000 and for the nine month periods ending September 30, 2000
and September 30, 1999 incorporated by reference in the Prospectus
Supplement (the "MBIA Unaudited Financial Statements" and, collectively
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with the MBIA Audited Financial Statements, the "MBIA Financial
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Statements") present fairly in all material respects the financial
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condition of MBIA and its subsidiaries as of such date and for the period
covered by such statements in accordance with generally accepted accounting
principles applied in a manner consistent with the accounting principles
used in preparing the MBIA Audited Financial Statements, and, since
September 30, 2000, there has been no material change in such financial
condition of MBIA which would materially and adversely affect the ability
of MBIA to perform its obligations under the Policy.
2. Underwriters' Agreement and Representations.
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(a) Each of the Underwriters agrees and represents, with respect
to the offering of the Securities, that no Underwriter will use any
offering materials other than the Prospectus, or any supplement thereto,
including without limitation the Prospectus Supplement unless such revised
offering materials include such information relating to MBIA as is
reasonably required under the Act and the rules and regulations promulgated
by the Commission thereunder, which information has been furnished by MBIA
for inclusion therein and has been approved by MBIA in writing, such
approval not to be unreasonably withheld.
(b) Each of the Underwriters agrees and represents that the
statements in the Prospectus and Prospectus Supplement were made in
reliance upon and in conformity with the Underwriting Information (as
defined in Section 5(c) below), it being
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acknowledged that the Underwriting Information on the date of the
Prospectus Supplement did not, and on the Closing Date, will not, contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
3. Depositor's Representations and Warranties. The Depositor
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represents and warrants the following:
(a) The Registration Statement has been filed with, and has been
declared effective by, the Commission and the Prospectus and the Prospectus
Supplement have been filed with the Commission.
(b) Except for the MBIA Information, the Underwriting
Information (as defined in Section 5(c) below) and the Seller Information
(as defined in Section 5(b) below), (i) the Registration Statement on the
Effective Date, did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and (ii) neither the Prospectus
nor the Prospectus Supplement on the date thereof did, and on the Closing
Date neither the Prospectus nor the Prospectus Supplement will, contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) As of the Closing Date, the Depositor's representations and
warranties contained in the Trust Agreement and the Sale and Servicing
Agreement are true and correct in all material respects.
4. Seller's Representations and Warranties. The Seller represents
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and warrants the following:
(a) With respect to the Seller Information, as defined in
Section 5(b) below, neither the Prospectus nor the Prospectus Supplement on
the date thereof did, and on the Closing Date neither the Prospectus nor
the Prospectus Supplement will, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(b) As of the Closing Date, the Seller's representations and
warranties contained in the Sale and Servicing Agreement are true and
correct in all material respects.
5. Indemnification and Contribution.
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(a) MBIA agrees to indemnify and hold harmless each of the
Seller, the Depositor, First Union Corp. and each Underwriter against any
and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), any other Federal or
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state statutory law or regulation, at common law or otherwise, as incurred,
insofar as such losses, claims, damages or liabilities (or actions in
respect
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thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the MBIA Information
included in or incorporated by reference in the Prospectus Supplement, or,
to the extent approved by MBIA in writing, in any amendment or supplement
to the Prospectus or the Prospectus Supplement, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which MBIA may otherwise
have.
(b) The Seller agrees to indemnify and hold harmless MBIA
against any and all losses, claims, damages or liabilities, joint or
several, to which it may become subject under the Act, the Exchange Act,
any other Federal or state statutory law or regulation, at common law or
otherwise, as incurred, 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 a material fact
contained in the Prospectus Supplement under the headings "Summary-Seller
and Servicer", "Risk Factors-Geographic Concentration May Result in More
Risk to You", "The Receivables Pool" and "The Seller" and the information
set forth in the Prospectus under the heading "Material Legal Issues
Relating to the Receivables" (collectively, the "Seller Information"),
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included in the Prospectus, or in any amendment thereof or supplement
thereto or in the Prospectus Supplement, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state in the Seller Information a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action. This indemnity
agreement will be in addition to any liability which the Seller may
otherwise have.
(c) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless MBIA against any and all losses, claims,
damages or liabilities, joint or several, to which it may become subject
under the Act, the Exchange Act, any other Federal or state statutory law
or regulation, at common law or otherwise, as incurred, 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 a material fact contained in the second, fourth, fifth and
eleventh paragraphs under the heading "Underwriting" (the "Underwriting
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Information"), included in the Prospectus Supplement, or in any amendment
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or supplement to the Prospectus Supplement, or arise out of or are based
upon the omission or alleged omission to state in the Underwriting
Information a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
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liability or action. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(d) As an inducement to MBIA to issue the Policy and to enter
into and facilitate the transactions contemplated hereby, First Union Corp.
agrees to indemnify and hold harmless MBIA against any and all losses,
claims, damages or liabilities, joint or several, to which it may become
subject under the Act, the Exchange Act, any other Federal or state
statutory law or regulation, at common law or otherwise, as incurred,
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 a material fact contained in the Registration
Statement, or in any amendment thereof or supplement thereto, or in the
Prospectus, or in any amendment thereof or supplement thereto or in the
Prospectus Supplement, or in any amendment thereof or supplement thereto,
or arise out of or are based upon, in the case of the Registration
Statement, 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 in the case of the Prospectus or the Prospectus
Supplement, the omission or alleged omission to state therein a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that First Union Corp. 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 the MBIA Information, the Underwriting Information or the
Seller Information. This indemnity agreement will be in addition to any
liability which First Union Corp. may otherwise have.
(e) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 5, notify the indemnifying party in
writing 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 except to the extent the indemnifying party is
prejudiced thereby. 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, at its own
expense, 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 reasonably satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified
party to assume the defense of any such action, the indemnifying party will
not be liable to such indemnified party under this Section 5 for any legal
or other expenses subsequently reasonably incurred by such indemnified
party in connection with the defense of any such action other than
reasonable costs of investigation unless, (i) the defendants in any such
action include both the indemnified party and the indemnifying party, and
the indemnified party shall have reasonably concluded that there may be
legal defenses available to it that are different from or additional to
those available to the indemnifying party, or one or more
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indemnified parties, in which event the indemnified party shall have the
right to select separate counsel (in addition to any local counsel) to
assert such legal defenses and to otherwise participate in the defense of
such action on behalf and under the control of the indemnified party, (ii)
the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of commencement of the action, or
(iii) the indemnifying party has authorized the employment of counsel for
the indemnified party at the expense of the indemnifying party; then, in
any such event, the indemnifying party shall be liable to such indemnified
party under this Section 5 for any legal and other expenses subsequently
incurred by such indemnified party in connection with the defense of any
such action including the 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
proceeding 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 claims that are the subject matter
of such proceeding or threatened proceeding.
(f) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a), (b), (c) or (d) 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), (b), (c) or (d) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Seller, the
Depositor (in the case of First Union Corp. as indemnifying party), the
Underwriters and MBIA from the offering and sale of the Securities or (ii)
if the allocation provided in 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 Seller, the Depositor (in the case of First Union Corp. as
indemnifying party), the Underwriters and MBIA in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, or actions in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Seller, the
Depositor (in the case of First Union Corp. as indemnifying party), the
Underwriters and MBIA shall be deemed to be in the same proportion as (i)
an amount equal to (x) the aggregate proceeds to the Depositor from the
sale of the Securities, plus accrued interest and before deducting
expenses, minus (y) the sum of the purchase price paid by the Depositor to
the Seller pursuant to Section 2.02 of the Receivables Purchase Agreement
(the "Purchase Price") (in the case of First Union Corp. as indemnifying
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party) bears to (ii) the total premiums received by MBIA, (iii) the
Purchase Price received by the Seller and (iv) the total underwriting
discounts to such Underwriter as specified on the cover of the Prospectus
Supplement in connection with the offering and sale of the Securities, as
the case may be. 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 Seller, the Depositor (in the case of First
Union Corp. as indemnifying party), MBIA, or each of the Underwriters 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
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a result of the losses, claims, damages, or liabilities referred to in the
first sentence of this subsection (f) 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 (f). Notwithstanding the provisions of this
subsection (f), no Underwriter shall be required to contribute to MBIA
hereunder any amount in excess of the amount of the underwriting discount
received by it under the Underwriting Agreement. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(g) The obligations of First Union Corp. under this Section 5
shall extend, upon the same terms and conditions, to each person, if any,
who controls MBIA within the meaning of the Act; and the obligations of the
Underwriters under this Section shall extend, upon the same terms and
conditions, to each person, if any, who controls MBIA within the meaning of
the Act; and the obligations of MBIA under this Section shall extend, upon
the same terms and conditions, to each director of the Underwriters, the
Seller and of the Depositor, to each officer of the Underwriters, the
Seller and the Depositor who has signed the Registration Statement and to
each person, if any, who controls the Seller, the Depositor or any
Underwriter within the meaning of the Act.
6. Representations and Indemnities to Survive. The agreements,
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representations, warranties, indemnities and other statements of the parties
hereto 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 other parties hereto or any of the officers,
directors or controlling persons referred to in Section 5 hereof, and will
survive delivery of and payment for the Securities. The provisions of Section 5
hereof shall survive the termination or cancellation of this Agreement.
7. Notices. All communications hereunder shall be in writing and
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addressed to the following or to such other address or facsimile as set forth in
a written notice delivered by a party to each other party.
If to the Depositor:
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Pooled Auto Securities Shelf LLC
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
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Xxxxx Xxxxxxx, Esq.
First Union Corporation
Legal Department
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000 0/xx/ Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Seller:
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CarMax Auto Superstores, Inc.
0000 Xxx Xxxx
Xxxx Xxxxx, Xxxxxxxx 00000
Attention: Treasury Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to First Union Corp.:
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First Union Corporation
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Underwriters:
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First Union Securities, Inc.
Xxx Xxxxx Xxxxx Xxxxxx, XX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to MBIA:
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MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Insured Portfolio Management
Structured Finance
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
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Xxxx Xxxxxxx
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
8. Miscellaneous. This Agreement is to be governed by, and construed
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in accordance with, the laws of the State of New York. It shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns and the officers and directors and controlling persons
referred to in Section 5 hereof, and no other person shall have any right or
obligation hereunder. This Agreement supersedes all prior agreements and
understandings relating to the subject matter hereof. 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. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
9. Counterparts. This Agreement may be executed in counterparts by
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the parties hereto, and each such counterpart shall be considered an original
and all such counterparts shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Indemnification
Agreement, all as of the day and year first above mentioned.
MBIA INSURANCE CORPORATION
By: /s/ Xxx X. Xxxxx
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Xxx X. Xxxxx
Assistant Secretary
CARMAX AUTO SUPERSTORES, INC.,
as Seller
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
Treasurer
POOLED AUTO SECURITIES SHELF LLC
as Depositor
By: /s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
Vice President
FIRST UNION CORPORATION
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Senior Vice President
FIRST UNION SECURITIES, INC.
as Representative for the Underwriters
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
Vice President
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