Exhibit 10.7.2
Amendment to Affinity Card Agreement
This is an Amendment (this "Amendment"), dated as of March 26, 1998, to
that certain Affinity Card Agreement (the "Affinity Agreement"), dated as of
January 6, 1997, by and between Columbus Bank & Trust Company ("CB&T") and
CompuCredit Corporation ("CompuCredit"), a corporation organized under the
laws of the State of Georgia as the successor to CompuCredit L.P., as
heretofore amended.
RECITALS
A. Under a proposed transaction among CB&T, CompuCredit Acquisition
Corporation ("CompuCredit Acquisition"), MountainWest Financial Corporation
("MWFC"), Mountain Receivables Corporation ("MRC") and NationsBank of
Delaware N.A. ("NB"), CB&T as Purchaser would acquire certain credit card
accounts and related receivables from MWFC, MRC and NB (MWFC, MRC and NB are
sometimes referred to herein collectively as "Sellers") and, simultaneously
with closing any such acquisition CB&T would transfer the receivable so
acquired to CompuCredit Acquisition. Such agreement as may be entered into
among CB&T, CompuCredit Acquisition and the Sellers relating to any such
transaction is referred to herein as the "Sale and Purchase Agreement". Any
interim servicing agreement providing for servicing of the acquired credit
card accounts and related receivables prior to conversion of same to CB&T's
system, 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 and CompuCredit Acquisition (i) with respect to the sale of
receivables to CompuCredit Acquisition by CB&T should CB&T close the purchase
from Sellers 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 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 and CompuCredit Acquisition.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, CB&T, CompuCredit and CompuCredit
Acquisition agree as follows:
1. CB&T, CompuCredit 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 and CompuCredit
Acquisition shall be jointly and severally liable for all obligations of
either CompuCredit or CompuCredit Acquisition, or both, under the Affinity
Agreement as herein
amended, regardless of whether such obligations are referred to as the
obligations of CompuCredit or of CompuCredit Acquisition or of both.
2. (a) In the event CB&T purchases credit card accounts ("Acquired
Accounts") and related receivables ("Acquired 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 Receivables so acquired from Sellers, 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 Sellers as the purchase price for the Acquired Receivables,
the Acquired Accounts and any other assets acquired by CB&T from Sellers 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 by by wire
transfer to CB&T's account or wire transfer directly to the accounts of
Sellers in payment of the portion of the purchase price due from CB&T to each
Seller in connection with the Closing of the Sale and Purchase Agreement.
(c) The Acquired Accounts, and any other assets acquired by CB&T
pursuant to the Sale and Purchase Agreement (except the Acquired
Receivables), shall remain the property of CB&T. The Acquired Accounts, the
Acquired Receivables, and receivables arising on or after the Closing date
pursuant to the Acquired Accounts, shall, commencing as of the Closing Date,
be subject to the terms of the Affinity Agreement to the extent hereinafter
specified in this Amendment.
3. At the Closing, upon consummation of the purchase by CB&T from
Sellers and the payment by CompuCredit Acquisition of the purchase price due
CB&T with respect to the sale of Acquired Receivables by CB&T to CompuCredit
Acquisition, CB&T and CompuCredit Acquisition shall execute and deliver an
assignment 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 Receivables.
Upon completion of the post-Closing settlement between CB&T and
Sellers (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 Receivables and CompuCredit Acquisition or CB&T, as the case may
be, shall remit the amount of the adjustment to the other.
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4. CB&T hereby covenants and agrees with CompuCredit and CompuCredit
Acquisition as follows:
(a) CB&T shall provide an opinion of counsel dated as of the date of
the Sale and Purchase Agreement and relating to same, and an
opinion of counsel dated as of the date of the Interim Servicing
Agreement and relating to same, 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
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
Receivables and other Credit Card Receivables arising pursuant
to the Acquired 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 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
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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 known to such counsel to which CB&T is a
party or by which CB&T is bound; and
(viii) there are no legal governmental proceedings pending (or,
if to such counsels'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 of all of its interest in
the Acquired Assets and its rights and obligations under the Sale
and Purchase Agreement and this 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.
(d) CB&T agrees, in connection with the Securitization,
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(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 August 29, 1997, but both revised (i) to omit
any representation or warranty of the kind captioned "Compliance"
in the August 29, 1997 document, 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, (ii) to make clear
that the term "such property as used in Section 4.02(a)(iv) of the
Receivables Purchase Agreement refers only to CB&T's right, title
and interest in the indicated items, (iii) to specify that the
representations concerning freedom of any Transferred Interest or
Receivable from any Lien shall refer only to Liens created by CB&T,
(iv) to reflect in any other 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, and (v) in such other
respects as CB&T and CompuCredit Acquisition may mutually agree for
the purpose of facilitating the Securitization.
(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 Receivables,
(a) "Credit Card Receivables" as defined in the Affinity Agreement
shall include all amounts owning to CB&T on the Acquired 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,
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as of the close of business on a given day, less any payments
and credits received in respect of the Acquired Accounts prior
to the close of business on such day,
(b) each of the Acquired Accounts shall be considered a "Credit
Card Account" or "Account" pursuant to the Affinity Agreement,
(c) each credit card associated with the Acquired Accounts shall be
considered a "Credit Card" or "Card" pursuant to the Affinity
Agreement,
(d) each individual in whose name an Acquired 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 Account shall be
considered a "Cardholder Agreement" under the Affinity Agreement,
and
(f) the net outstanding book principal balances of new purchases and
cash advances made on the Acquired Accounts on and after the
Closing Date shall be considered "Program Receivables" pursuant
to the Affinity 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 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 Assets will be purchased by CompuCredit Acquisition.
6. Notwithstanding any provision of the Affinity 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
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 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 Accounts as may be sold by CB&T to CompuCredit
Acquisition or to any third party designated by
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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 or CompuCredit Acquisition (including but not
limited to any obligation to indemnify or hold harmless CompuCredit 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 and CompuCredit
Acquisition under Section 7 below are applicable.
7. Notwithstanding any provision of the Affinity Agreement or of
the Sale and Purchase Agreement or any Related Agreement to the contrary,
CompuCredit 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 Accounts or Acquired Receivables or any other receivables related to
the Acquired 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 any of the Sellers, 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
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Acquired 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 Accounts;
(e) any losses on any of the Acquired Accounts or Acquired
Receivables or any other receivables related to the Acquired 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 neither CompuCredit nor 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 6 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 or CompuCredit Acquisition under the existing provisions of the
Affinity 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 and CompuCredit Acquisition shall provide copies of
their financial statements to CB&T on a quarterly basis.
8. CB&T represents to CompuCredit 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
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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, 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.
Section 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
9
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 Sellers
under the Sale and Purchase 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 Accounts or Acquired 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 MasterCard 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 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 Assets or any receivables arising on or after the Closing
date pursuant to the Acquired Accounts, the conversion of Acquired Accounts
to CB&T's system, and the expiration or termination of the Affinity Agreement.
10. In the event of any inconsistency between any provisions of this
Amendment and any provisions of:
(a) the existing Affinity Agreement, or
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(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 or
CompuCredit Acquisition may now or hereafter 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 shall continue
in effect in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date set forth above.
COLUMBUS BANK AND TRUST COMPANY COMPUCREDIT CORPORATION
By: /s/ X. Xxxxxx Xxxxxxxxxxx By: /s/ Xxxxx X. Xxxxxx
----------------------------- ---------------------------
X. Xxxxxx Xxxxxxxxxxx Xxxxx X. Xxxxxx
Vice President Chief Financial Officer
COMPUCREDIT ACQUISITION CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx
Chief Financial Officer
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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 MountainWest
Financial Corporation ("MWFC"), Mountain Receivables Corporation, NationsBank
of Delaware N.A., 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 State of Georgia and the Federal laws of the United States of
America.
Based on the foregoing, I am of the opinion that:
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(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 State 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 of 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 interest rate upon delinquency in payment or the occurrence of any
event of default.
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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 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
