EXHIBIT 10.2
EXECUTION COPY
INDEMNIFICATION AGREEMENT
among
FINANCIAL SECURITY ASSURANCE INC.,
AFS FUNDING TRUST
and
WACHOVIA CAPITAL MARKETS, LLC
Dated as of July 11, 2006
$204,000,000 Class A-1 5.5048% Asset Backed Notes, Series 2006-A-F
$394,000,000 Class A-2 5.61% Asset Backed Notes, Series 2006-A-F
$412,000,000 Class A-3 5.56% Asset Backed Notes, Series 2006-A-F
$340,000,000 Class A-4 5.64% Asset Backed Notes, Series 2006-A-F
TABLE OF CONTENTS
PAGE
----
Section 1. Definitions............................................... 1
Section 2. Representations, Warranties and Agreements of Financial
Security.................................................. 3
Section 3. Representations, Warranties and Agreements of the
Underwriters.............................................. 5
Section 4. Indemnification........................................... 6
Section 5. Indemnification Procedures................................ 7
Section 6. Contribution.............................................. 8
Section 7. Miscellaneous............................................. 9
EXHIBIT A -- Opinion of Counsel
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT dated as of July 11, 2006, among FINANCIAL
SECURITY ASSURANCE INC. ("Financial Security"), AFS FUNDING TRUST, (the
"Seller") and WACHOVIA CAPITAL MARKETS, LLC, as the Representative (as defined
below):
Section 1. Definitions. For purposes of this Agreement, the following terms
shall have the meanings provided below:
"Agreement" means this Indemnification Agreement, as amended from time to
time.
"Closing Date" means July 20, 2006.
"Federal Securities Laws" means the Securities Act, the Securities Exchange
Act of 1934, the Trust Indenture Act of 1939, the Investment Company Act of
1940, the Investment Advisers Act of 1940 and the Public Utility Holding Company
Act of 1935, each as amended from time to time, and the rules and regulations in
effect from time to time under such Acts.
"Final Prospectus Supplement" means the final Prospectus Supplement dated
July 11, 2006 relating to the Securities.
"Financial Security Agreements" means this Agreement, the Spread Account
Agreement and the Insurance Agreement.
"Financial Security Information" has the meaning provided in Section 2(g)
hereof.
"Financial Security Party" means any of Financial Security, its parent,
subsidiaries and affiliates, and any shareholder, director, officer, employee,
agent or "controlling person" (as such term is used in the Securities Act) of
any of the foregoing.
"Indemnified Party" means any party entitled to any indemnification
pursuant to Section 4 hereof.
"Indemnifying Party" means any party required to provide indemnification
pursuant to Section 4 hereof.
"Insurance Agreement" means the Insurance and Indemnity Agreement, dated as
of July 12, 2006 among Financial Security, the Trust, AmeriCredit Financial
Services, Inc., AmeriCredit Corp. and AFS Funding Trust.
"Losses" means (a) any actual out-of-pocket damages incurred by the party
entitled to indemnification or contribution hereunder, (b) any actual
out-of-pocket costs or expenses incurred by such party, including reasonable
fees or expenses of its counsel and other expenses incurred in connection with
investigating or defending any claim, action or other proceeding which entitle
such party to be indemnified hereunder (subject to the limitations set forth in
Section 5 hereof), to the extent not paid, satisfied or reimbursed from funds
provided by any other Person other than an affiliate of such party (provided
that the foregoing shall not create or
imply any obligation to pursue recourse against any such other Person), plus (c)
interest on the amount paid by the party entitled to indemnification or
contribution from the date of such payment to the date of payment by the party
who is obligated to indemnify or contribute hereunder at the statutory rate
applicable to judgments for breach of contract.
"Offering Document" means the Prospectus, the Prospectus Supplement and any
other material or documents delivered by the Underwriters or any Underwriter
Party to any Person in connection with the offer or sale of the Securities.
"Person" means any individual, partnership, joint venture, corporation,
trust, unincorporated organization or other organization or entity (whether
governmental or private).
"Policy" means the financial guaranty insurance policy delivered by
Financial Security with respect to the Securities.
"Preliminary Prospectus Supplement" means, collectively, the preliminary
Prospectus Supplement subject to completion dated July 10, 2006 relating to the
Securities and the Supplement thereto subject to completion also dated July 10,
2006.
"Prospectus" means, collectively, the Prospectus dated April 28, 2006
relating to the Securities and the Prospectus Supplement.
"Prospectus Supplement" means, collectively, the Preliminary Prospectus
Supplement and the Final Prospectus Supplement.
"Representative" means Wachovia Capital Markets, LLC, as representative of
the Underwriters.
"Securities" means the Trust's $204,000,000 Class A-1 5.5048% Asset Backed
Notes, $394,000,000 Class A-2 5.61% Asset Backed Notes, $412,000,000 Class A-3
5.56% Asset Backed Notes and $340,000,000 Class A-4 5.64% Asset Backed Notes
issued pursuant to the Series 2006-A-F Indenture.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Seller Party" means any of the Seller, its parent, subsidiaries and
affiliates and any employee, agent or "controlling person" (as such term is used
in the Securities Act) of any of the foregoing.
"Spread Account Agreement" means the Spread Account Agreement dated as of
July 12, 2006, among Financial Security, the Trust, the Collateral Agent and the
Trustee, as the same may be amended, supplemented or otherwise modified in
accordance with the terms thereof.
"Time of Sale" means 12:00 noon (New York time) on July 11, 2006.
"Trust" means AmeriCredit Automobile Receivables Trust 2006-A-F.
"Underwriter Information" has the meaning provided in Section 3(c) hereof.
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"Underwriter Party" means any of the Underwriters, its respective parent,
subsidiaries and affiliates and any shareholder, director, officer, employee,
agent or "controlling person" (as such item is used in the Securities Act) of
any of the foregoing.
"Underwriters" means Barclays Capital Inc., Wachovia Capital Markets, LLC,
BMO Capital Markets Corp., Deutsche Bank Securities Inc., X.X. Xxxxxx Securities
Inc. and UBS Securities LLC, as underwriters.
"Underwriting Agreement" means the Underwriting Agreement, dated as of July
11, 2006 among the Seller, AmeriCredit Financial Services, Inc. and the
Representative.
Section 2. Representations, Warranties and Agreements of Financial
Security. Financial Security represents, warrants and agrees as follows:
(a) Organization, Etc. Financial Security is a stock insurance company
duly organized, validly existing and authorized to transact financial
guaranty insurance business under the laws of the State of New York.
(b) Authorization, Etc. The Policy and the Financial Security
Agreements have been duly authorized, executed and delivered by Financial
Security.
(c) Validity, Etc. The Policy and the Financial Security Agreements
constitute valid and binding obligations of Financial Security, enforceable
against Financial Security in accordance with their terms, subject, as to
the enforcement of remedies, to bankruptcy, insolvency, reorganization,
rehabilitation, moratorium and other similar laws affecting the
enforceability of creditors' rights generally applicable in the event of
the bankruptcy or insolvency of Financial Security and to the application
of general principles of equity and subject, in the case of this Agreement,
to principles of public policy limiting the right to enforce the
indemnification provisions contained herein.
(d) Exemption From Registration. The Policy is exempt from
registration under the Securities Act.
(e) No Conflicts. Neither the execution or delivery by Financial
Security of the Policy or the Financial Security Agreements, nor the
performance by Financial Security of its obligations thereunder, will
conflict with any provision of the certificate of incorporation or the
bylaws of Financial Security nor result in a breach of, or constitute a
default under, any material agreement or other instrument to which
Financial Security is a party or by which any of its property is bound nor
violate any judgment, order or decree applicable to Financial Security of
any governmental or regulatory body, administrative agency, court or
arbitrator having jurisdiction over Financial Security (except that, in the
published opinion of the Securities and Exchange Commission, the
indemnification provisions of this Agreement, insofar as they relate to
indemnification for liabilities arising under the Securities Act, are
against public policy as expressed in the Securities Act and are therefore
unenforceable).
(f) Financial Information. The consolidated balance sheets of
Financial Security as of December 31, 2005 and December 31, 2004 and the
related consolidated statements
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of income, changes in shareholder's equity and cash flows for each of the
three years in the period ended December 31, 2005, and the interim
consolidated balance sheets of Financial Security as of March 31, 2006 (and
March 31, 2005) (unaudited), and the related statements of income, changes
in shareholder equity and cash flows for the interim period then ended,
which are incorporated by reference in the Prospectus, fairly present in
all material respects the financial condition of Financial Security as of
such dates and for such periods in accordance with generally accepted
accounting principles consistently applied (subject as to interim
statements to normal year-end adjustments) and since the date of the most
current interim consolidated balance sheet referred to above there has been
no change in the financial condition of Financial Security which would
materially and adversely affect its ability to perform its obligations
under the Policy.
(g) Financial Security Information. The information in the Prospectus
Supplement set forth or incorporated by reference under the caption "The
Insurer" (as revised from time to time in accordance with the provisions
hereof, the "Financial Security Information") is limited and does not
purport to provide the scope of disclosure required to be included in a
prospectus with respect to a registrant in connection with the offer and
sale of securities of such registrant registered under the Securities Act.
Within such limited scope of disclosure, however, with respect to (i) the
Preliminary Prospectus Supplement, as of the Time of Sale, and (ii) the
Final Prospectus Supplement, as of its date and the Closing Date, the
Financial Security Information does not contain any untrue statement of a
material fact, or omit to state a material fact necessary to make the
statements contained therein, in the light of the circumstances under which
they were made, not misleading.
(h) Additional Information. Financial Security will furnish to the
Underwriters or the Seller, upon request of the Underwriters or the Seller,
as the case may be, copies of Financial Security's most recent financial
statements (annual or interim, as the case may be) which fairly present in
all material respects the financial condition of Financial Security as of
the dates and for the periods indicated, in accordance with generally
accepted accounting principles consistently applied except as noted therein
(subject, as to interim statements, to normal year-end adjustments). In
addition, if the delivery of a Prospectus relating to the Securities is
required at any time prior to the expiration of nine months after the time
of issue of the Prospectus in connection with the offering or sale of the
Securities, the Seller or the Underwriters will notify Financial Security
of such requirement to deliver a Prospectus and Financial Security will
promptly provide the Underwriters and the Seller with any revisions to the
Financial Security Information that are in the judgment of Financial
Security necessary to prepare an amended Prospectus or a supplement to the
Prospectus.
(i) Opinion of Counsel. Financial Security will furnish to the
Underwriters and the Seller on the closing date for the sale of the
Securities an opinion of its Assistant General Counsel, Associate General
Counsel or General Counsel to the effect set forth in Exhibit A attached
hereto, dated such closing date and addressed to the Seller and the
Underwriters.
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(j) Consents and Reports of Independent Accountants. Financial
Security will furnish to the Underwriters and the Seller, upon request, as
comfort from its independent accountants in respect of its financial
condition, (i) at the expense of the Person specified in the Insurance
Agreement, a copy of the Prospectus, including either a manually signed
consent or a manually signed report of Financial Security's independent
accountants and (ii) the quarterly review letter by Financial Security's
independent accountants in respect of the most recent interim financial
statements of Financial Security.
Nothing in this Agreement shall be construed as a representation or warranty by
Financial Security concerning the rating of its insurance financial strength by
Fitch Ratings, Xxxxx'x Investors Service, Inc., Standard & Poor's and Rating and
Investment Information, Inc. or any other rating assigned by a rating agency
(collectively, the "Rating Agencies"). The Rating Agencies, in assigning such
ratings, take into account facts and assumptions not described in the Prospectus
and the facts and assumptions which are considered by the Rating Agencies, and
the ratings issued thereby, are subject to change over time.
Section 3. Representations, Warranties and Agreements of the Underwriters.
Each of the Underwriters represents, warrants and agrees as follows:
(a) Compliance With Laws. Such Underwriter will comply in all material
respects with all legal requirements in connection with offers and sales of
the Securities and make such offers and sales in the manner provided in the
Prospectus Supplement.
(b) Offering Document. Such Underwriter will not use, or distribute to
other broker-dealers for use, any Offering Document in connection with the
offer and sale of the Securities unless such Offering Document includes
such information as has been furnished by Financial Security for inclusion
therein and the information therein concerning Financial Security has been
approved by Financial Security in writing. Financial Security hereby
consents to the information in respect of Financial Security included in
the Prospectus. Each Offering Document which described the Policy will
include the following statement:
"The Policy is not covered by the Property/Casualty Insurance Security
Fund specified in Article 76 of the New York Insurance Law".
Each Offering Document including financial statements with respect to
Financial Security prepared in accordance with generally accepted
accounting principles (but excluding any Offering Document in which such
financial statements are incorporated by reference) will include the
following statement immediately preceding such financial statements:
"The New York State Insurance Department recognizes only statutory
accounting practices for determining and reporting the financial
condition and results of operations of an insurance company, for
determining its solvency under the New York Insurance Law, and for
determining whether its financial condition
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warrants the payment of a dividend to its stockholders. No
consideration is given by the New York State Insurance Department to
financial statements prepared in accordance with generally accepted
accounting principles in making such determinations."
(c) Underwriter Information. All material provided by the Underwriters
for inclusion in the Prospectus (as revised from time to time, the
"Underwriter Information"), insofar as such information relates to the
Underwriters, is true and correct in all material respects, with respect to
the Preliminary Prospectus Supplement, as of the Time of Sale, and with
respect to the Final Prospectus Supplement, as of its date and the Closing
Date. The Underwriter Information is limited to the information set forth
(i) on the cover page of the Preliminary Prospectus Supplement or Final
Prospectus Supplement, as applicable, the information in the table under
the headings entitled "Price to Public", "Underwriting Discounts" and
"Proceeds to Seller" and (ii) in the body and within the "Underwriting"
section of the Preliminary Prospectus Supplement or Final Prospectus
Supplement, as applicable, (a) the paragraph immediately following the
Class A-4 Notes Underwriter commitment table, (b) the fourth and fifth
paragraphs under the sub-heading "European Economic Area", (c) the last
sentence of the sixth paragraph under the sub-heading "European Economic
Area" and (d) the second sentence in the next-to-last paragraph and the
last paragraph of the "Underwriting" section.
Section 4. Indemnification.
(a) Financial Security agrees, upon the terms and subject to the
conditions provided herein, to indemnify, defend and hold harmless each
Seller Party and each Underwriter Party against (i) any and all Losses
incurred by them with respect to the offer and sale of the Securities and
resulting from Financial Security's breach of any of its representations,
warranties or agreements set forth in Section 2 hereof and (ii) any and all
Losses to which any Seller Party or Underwriter Party may become subject,
under the Securities Act or otherwise, insofar as such Losses arise out of
or result from an untrue statement of a material fact contained in any
Offering Document or the omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or omission was made in the Financial Security Information
included therein in accordance with the provisions hereof.
(b) Each of the Underwriters, agrees, severally but not jointly, upon
the terms and subject to the conditions provided herein, to indemnify,
defend and hold harmless each Financial Security Party against (i) any and
all Losses incurred by them with respect to the offer and sale of the
Securities and resulting from the Underwriters' breach of any of its
representations, warranties or agreements set forth in Section 3 hereof and
(ii) any and all Losses to which any Financial Security Party may become
subject, under the Securities Act or otherwise, insofar as such Losses
arise out of or result from an untrue statement of a material fact
contained in any Offering Document or the omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue
6
statement or omission was made in the Underwriter Information of the
Underwriter included therein.
(c) Upon the incurrence of any Losses for which a party is entitled to
indemnification hereunder, the Indemnifying Party shall reimburse the
Indemnified Party promptly upon establishment by the Indemnified Party to
the Indemnifying Party of the Losses incurred.
Section 5. Indemnification Procedures. Except as provided below in Section
6 with respect to contribution, the indemnification provided herein by an
Indemnifying Party shall be the exclusive remedy of any and all Indemnified
Parties for the breach of a representation, warranty or agreement hereunder by
an Indemnifying Party; provided, however, that each Indemnified Party shall be
entitled to pursue any other remedy at law or in equity for any such breach so
long as the damages sought to be recovered shall not exceed the Losses incurred
thereby resulting from such breach. In the event that any action or regulatory
proceeding shall be commenced or claim asserted which may entitle an Indemnified
Party to be indemnified under this Agreement, such party shall give the
Indemnifying Party written or telegraphic notice of such action or claim
reasonably promptly after receipt of written notice thereof. The Indemnifying
Party shall be entitled to participate in and, upon notice to the Indemnified
Party, assume the defense of any such action or claim in reasonable cooperation
with, and with the reasonable cooperation of, the Indemnified Party. The
Indemnified Party will have the right to employ its own counsel in any such
action in addition to the counsel of the Indemnifying Party, but the fees and
expenses of such counsel will be at the expense of such Indemnified Party,
unless (a) the employment of counsel by the Indemnified Party at its expense has
been authorized in writing by the Indemnifying Party, (b) the Indemnifying Party
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, or (c)
the named parties to any such action or proceeding (including any impleaded
parties) include both the Indemnifying Party and one or more Indemnified
Parties, and the Indemnified Parties shall have been advised by counsel that (A)
there may be one or more legal defenses available to them which are different
from or additional to those available to the Indemnifying Party and (B) the
representation of the Indemnifying Party and such Indemnified Parties by the
same counsel would be inappropriate or contrary to prudent practice (in which
case, if such Indemnified Parties notify the Indemnifying Party in writing that
they elect to employ separate counsel at the expense of the Indemnifying Party,
the Indemnifying Party shall not have the right to assume the defense of such
action or proceeding on behalf of such Indemnified Parties, it being understood,
however, that the Indemnifying Party shall not, in connection with any one such
action or proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys at any time for all Seller Parties, one such firm
for all Underwriter Parties and one such firm for all Financial Security
Parties, as the case may be, which firm shall be designated in writing by the
Seller in respect of the Seller Parties, by the Underwriters in respect of the
Underwriter Parties and by Financial Security in respect of the Financial
Security Parties), in each of which cases the fees and expenses of counsel will
be at the expense of the Indemnifying Party and all such fees and expenses will
be reimbursed promptly as they are incurred. The Indemnifying Party shall not be
liable for any settlement of any such claim or action unless the Indemnifying
Party shall have consented thereto or be in default in its
7
obligations hereunder. Any failure by an Indemnified Party to comply with the
provisions of this Section shall relieve the Indemnifying Party of liability
only if such failure is prejudicial to the position of the Indemnifying Party
and then only to the extent of such prejudice.
Section 6. Contribution.
(a) To provide for just and equitable contribution if the
indemnification provided by any Indemnifying Party is determined to be
unavailable or insufficient for any Indemnified Party (other than due to
application of this Section), each Indemnifying Party (severally and not
jointly in the case of the Underwriters) shall contribute to the Losses
arising from any breach of any of its representations, warranties or
agreements contained in this Agreement on the basis of the relative fault
of each of the parties as set forth in Section 6(b) below; provided,
however, that an Indemnifying Party shall in no event be required to
contribute to all Indemnified Parties an aggregate amount in excess of the
Losses incurred by such Indemnified Parties resulting from the breach of
representations, warranties or agreements contained in this Agreement.
(b) The relative fault of each Indemnifying Party, on the one hand,
and of each Indemnified Party, on the other, shall be determined by
reference to, among other things, whether the breach of, or alleged breach
of, any representations, warranties or agreements contained in this
Agreement relates to information supplied by, or action within the control
of, the Indemnifying Party or the Indemnified Party and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such breach.
(c) The parties agree that Financial Security shall be solely
responsible for the Financial Security Information and the Underwriters
shall be solely responsible for the Underwriter Information and that the
balance of each Offering Document shall be the responsibility of the
Seller.
(d) Notwithstanding anything in this Section 6 to the contrary, the
Underwriters shall not be required to contribute an amount in excess of the
amount by which the total price of the Securities underwritten by the
Underwriters exceeds the amount of any damages that the Underwriters have
otherwise been required to pay in respect of such untrue statement or
omission.
(e) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) Upon the incurrence of any Losses entitled to contribution
hereunder, the contributor shall reimburse the party entitled to
contribution promptly upon establishment by the party entitled to
contribution to the contributor of the Losses incurred.
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Section 7. Miscellaneous.
(a) Notices. All notices and other communications provided for under
this Agreement shall be delivered to the address set forth below or to such
other address as shall be designated by the recipient in a written notice
to the other party or parties hereto.
If to Financial Security: Financial Security Assurance Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Senior Vice President --
Transaction Oversight Department (with a
copy to the attention of the General
Counsel)
Re: Policy No. 51749-N
AmeriCredit Automobile Receivables
Trust 2006-A-F
Confirmation: (000) 000-0000
Telecopy Nos.: (000) 000-0000,
(000) 000-0000
If to the Seller: AFS Funding Trust
c/o Deutsche Bank Trust Company Delaware
(f/k/a Bankers Trust (Delaware))
E.A. Delle Donne Corporate Center
Xxxxxxxxxx Building
0000 Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Administration
Confirmation: (000) 000-0000
With a copy to: AmeriCredit Financial Services, Inc.
Administrator of AFS Funding Trust
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attn: Chief Financial Officer
Confirmation: (000) 000-0000
Telecopy No.: (000) 000-0000
If to the Underwriters: Wachovia Capital Markets, LLC
One Wachovia Center
000 X. Xxxxxxx Xxxxxx, XX 0610
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopy No.: (000) 000-0000
(b) Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND THIS AGREEMENT AND ALL MATTERS ARISING
9
OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT SHALL BE GOVERNED BY, THE
LAW OF THE STATE OF NEW YORK.
(c) Assignments. This Agreement may not be assigned by any party
without the express written consent of each other party. Any assignment
made in violation of this Agreement shall be null and void.
(d) Amendments. Amendments of this Agreement shall be in writing
signed by each party hereto.
(e) Survival, Etc. The indemnity and contribution agreements contained
in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any
Indemnifying Party, (ii) the issuance of the Securities or (iii) any
termination of this Agreement or the Policy. The indemnification provided
in this Agreement will be in addition to any liability which the parties
may otherwise have and shall in no way limit any obligations of the Seller
under the Underwriting Agreement or the Insurance Agreement.
(f) Counterparts. This Agreement may be executed in counterparts by
the parties hereto, and all such counterparts shall constitute one and the
same instrument.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Indemnification
Agreement to be duly executed and delivered as of the date first above written.
FINANCIAL SECURITY ASSURANCE INC.
By: /s/ Xxxx Xxxxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Managing Director
AFS FUNDING TRUST
By: AmeriCredit Financial Services, Inc., as
Administrator
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Vice President, Structured Finance
WACHOVIA CAPITAL MARKETS, LLC
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
[INDEMNITY AGREEMENT SIG. PAGE]
EXHIBIT A
OPINION OF COUNSEL
Based upon the foregoing, I am of the opinion that:
1. Financial Security is a stock insurance company duly organized, validly
existing and authorized to transact financial guaranty insurance business under
the laws of the State of New York.
2. The Policy and the Financial Security Agreements have been duly
authorized, executed and delivered by Financial Security.
3. The Policy and the Financial Security Agreements constitute valid and
binding obligations of Financial Security, enforceable against Financial
Security in accordance with their terms, subject, as to the enforcement of
remedies, to bankruptcy, insolvency, reorganization, rehabilitation, moratorium
and other similar laws affecting the enforceability of creditors' rights
generally applicable in the event of the bankruptcy or insolvency of Financial
Security and to the application of general principles of equity and subject, in
the case of the Indemnification Agreement, to principles of public policy
limiting the right to enforce the indemnification provisions contained therein
insofar as they relate to indemnification for liabilities arising under
applicable securities laws.
4. The Policy is exempt from registration under the Securities Act of 1933,
as amended (the "Act").
5. Neither the execution or delivery by Financial Security of the Policy or
the Financial Security Agreements, nor the performance by Financial Security of
its obligations thereunder, will conflict with any provision of the certificate
of incorporation or the bylaws of Financial Security or violate any law or
regulation, which violation would impair the binding effect or enforceability of
the Policy or any of the Agreements or, to the best of my knowledge, result in a
breach of, or constitute a default under, any agreement or other instrument to
which Financial Security is a party or by which it or any of its property is
bound or, to the best of my knowledge, violate any judgment, order or decree
applicable to Financial Security of any governmental or regulatory body,
administrative agency, court or arbitrator having jurisdiction over Financial
Security (except that in the published opinion of the Securities and Exchange
Commission the indemnification provisions of the Indemnification Agreement,
insofar as they relate to indemnification for liabilities arising under the Act,
are against public policy as expressed in the Act and are therefore
unenforceable).
In addition, please be advised that I have reviewed the description of
Financial Security under the caption "The Insurer" in (i) the preliminary
Prospectus Supplement dated July 10, 2006 (the "Preliminary Prospectus
Supplement") and (ii) the final Prospectus Supplement dated July 11, 2006 (the
"Final Prospectus Supplement" and, together with the Preliminary Prospectus
Supplement, the "Disclosure Documents") of the Seller with respect to the
Securities. The information provided in the Disclosure Documents with respect to
Financial Security is limited
A-1
and does not purport to provide the scope of disclosure required to be included
in a prospectus with respect to a registrant under the Act in connection with
the public offer and sale of securities of such registrant. Within such limited
scope of disclosure, however, there has not come to my attention any information
that would cause me to believe that the description of Financial Security
referred to above, with respect to the Preliminary Prospectus Supplement, as of
12:00 noon (New York time) on July 11, 2006, and with respect to the Final
Prospectus Supplement, as of its date or as of the date of this opinion,
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading (except
that I express no opinion with respect to any financial statements or other
financial information contained or referred to therein).
A-2
