EXHIBIT 99.1.7
--------------
MBIA
FINANCIAL GUARANTY MASTER
WHILE IN TRUST WITH A PERMANENT OPTION
UNIT INVESTMENT TRUST INSURANCE POLICY
MBIA Insurance Corporation
Xxxxxx, Xxx Xxxx 00000
Policy No. XXXX-000-0000
XXXX Insurance Corporation (the "Insurer"), in consideration of the
payment of the premium and subject to the terms of this policy, hereby
unconditionally and irrevocably guarantees to the Trust, as hereinafter defined,
the full and complete payment required to be made by or on behalf of the
issuer(s) to the applicable Paying Agent(s) or its/their successor(s) (the
"Paying Agent") of an amount equal to (i) the principal of (either at the stated
maturity or by any advancement of maturity pursuant to a mandatory sinking fund
payment) and interest on the obligations described in Exhibit A attached hereto
(referred to herein as the "Obligations"), as such payments shall become due but
shall not be so paid (except that in the event of any acceleration of the due
date of such principal by reason of mandatory or optional redemption or
acceleration resulting from default or otherwise, other than any advancement of
maturity pursuant to a mandatory sinking fund payment, the payments guaranteed
hereby shall be made in such amounts and at such times as such payments of
principal would have been due had there not been any such acceleration); and
(ii) the reimbursement of any such payment which is subsequently recovered from
the Trust pursuant to a final judgment by a court of competent jurisdiction that
such payment constitutes an avoidable preference to the Trust within the meaning
of any applicable bankruptcy law. The amounts referred to in clauses (i) and
(ii) of the preceding sentence shall be referred to herein collectively as the
"Insured Amounts."
Upon receipt of telephonic or telegraphic notice, such notice
subsequently confirmed in writing by registered or certified mail, or upon
receipt of written notice by registered or certified mail, by the Insurer or its
designee from the Paying Agent or the Trust, that required payment of any
Insured Amount has not been made, the Insurer on the due date of such payment or
within one business day after receipt of notice of such nonpayment, whichever is
later, will make a deposit of funds, in an account with State Street Bank and
Trust Company, N.A., in New York, New York, or its successor, sufficient for the
payment of any such Insured Amounts which are then due. Upon presentment and
surrender of such Obligations or coupons or presentment of such other proof of
ownership of the Obligations registered as to principal or as to principal and
interest, together with evidence satisfactory to State Street Bank and Trust
Company, N.A. that (i) in the case of Pre-Insured Obligations, as hereinafter
defined, that demand for payment has been made from the other insurer, and (ii)
in all cases, that such Obligations or coupons are the Obligations or coupons
described in this policy or replacements or successors thereto, and any
appropriate instruments of assignment to evidence the assignment of the Insured
Amounts due on the Obligations as are paid by the Insurer, and appropriate
instruments to effect the appointment of the Insurer as agent for the Trust in
any legal proceeding related to payment of Insured Amounts on the Obligations or
coupons, such instruments being in a form satisfactory to State Street Bank and
Trust Company, N.A., State Street Bank and Trust Company, N.A. shall disburse to
the Trust or the Paying Agent making such presentment and/or surrender payment
of the Insured Amounts due on such Obligations and coupons, less any amount held
by the Paying Agent for the payment of such Insured Amounts and legally
available therefor. This policy does not insure against loss of any prepayment
premium which may at any time be payable with respect to any Obligation or
coupon.
The term "Depositor" shall mean Glickenhaus & Co. and Lebenthal, a
division of Advest, Inc. and its successors or any successor Depositor.
The term "Pre-Insured Obligations" shall mean obligations, if any, on
which the payment of principal of and/or interest on shall have been insured
prior to the issuance of this policy by the Insurer.
The term "Trust" shall mean the Empire State Municipal Exempt Trust,
Guaranteed Series 168, created pursuant to the Trust Indenture and Agreement
dated December 18, 1990, among the Depositor, the Trustee and Standard & Poor's
Corporation, as supplemented and amended as of November 14, 2002 by the
Reference Trust Agreement dated as of November 14, 2002, among the Depositor,
the Trustee and CapeLogic, Inc.
The term "Trustee" shall mean Bank of New York, or any successor
trustee or co-trustee.
Any service of process on the Insurer may be made to the Insurer at its
offices located at 000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000, and such service of
process shall be valid and binding.
MBIA
This policy shall only apply to Obligations held in and owned by the
Trust and shall not apply to any Obligations not deposited therein by the
Depositor. This policy shall continue in force only with respect to Obligations
held in and owned by the Trust, and, subject to the provisions of this
paragraph, the Insurer shall not have any liability under this policy with
respect to any Obligations which do not constitute part of the Trust. This
policy is non-cancellable during the term hereof for any reason, but shall
terminate as to any Obligation which has been redeemed from or sold by the
Trustee or the Trust on the date of such redemption or on the settlement date of
such sale, and the Insurer shall not have any liability under this policy as to
any such Obligation thereafter. If the date of such redemption or the settlement
date of such sale occurs between a record date and a date of payment of any such
Obligation, this policy shall terminate as to such Obligation on the business
day next succeeding such date of payment. Notwithstanding the foregoing
provisions of this paragraph, the termination of this policy as to any
Obligation shall not affect the obligations of the Insurer regarding any other
Obligation in the Trust. This policy shall terminate as to all Obligations on
the date on which the last of the Obligations mature, are redeemed or are sold
by the Trust.
The premium on this policy is not refundable for any reason, including
the payment prior to maturity of the Obligations.
This policy is issued only to the Trust and is nontransferable.
This policy shall be governed by and construed under the laws of the
State of New York.
This policy is not covered by the Property/Casualty Insurance Security
Fund specified in Article 76 of the New York Insurance Law.
IN WITNESS WHEREOF, the Insurer has caused this policy to be executed
in facsimile on its behalf by its President and its Secretary, this 14th day of
November, 2002.
MBIA INSURANCE CORPORATION
/s/ Xxxx X. Xxxxxx
----------------------------
President
Attest: /s/ Xxx X. Xxxxx
----------------------------
Assistant Secretary
MBIA
E N D O R S E M E N T
- - - - - - - - - - -
Attached to Policy No. ESGT-168-1010
issued by MBIA Insurance Corporation (the "Insurer"), to the Trust, as defined
in the policy issued with respect to the small issue industrial development
bonds and pollution control revenue bonds listed in Exhibit A (the "Bonds").
It is further understood that this policy shall guarantee to the Trust, as
defined in the policy, the full and complete payments required to be made by or
on behalf of the Issuer if there occurs pursuant to the terms of the Bonds an
event which results in the loss of the tax exempt status of the interest on the
Bonds, including any principal, interest or premium payments payable thereon, if
any, as and when thereby required.
This endorsement forms a part of the policy to which it is attached, effective
on the inception date of the policy.
IN WITNESS WHEREOF, the Insurer has caused this endorsement to be executed in
facsimile on its behalf by its President and its Assistant Secretary this 14th
day of November, 2002.
MBIA INSURANCE CORPORATION
/s/ Xxxx X. Xxxxxx
----------------------------
President
Attest: /s/ Xxx X. Xxxxx
----------------------------
Assistant Secretary
MBIA
CERTIFICATE OF MBIA INSURANCE CORPORATION
(EMPIRE STATE MUNICIPAL EXEMPT TRUST, GUARANTEED SERIES 168)
This Certificate is being delivered in connection with the issuance by
MBIA Insurance Corporation (the "Corporation") of a Municipal Bond Guaranty
Insurance Policy relating to EMPIRE STATE MUNICIPAL EXEMPT TRUST, GUARANTEED
SERIES 168 (the "Policy"). The undersigned, hereby certifies that she is
qualified and acting as Assistant Secretary of the Corporation.
The undersigned hereby certifies that:
(a) The Policy has been duly executed, is a valid and binding
obligation of the Corporation enforceable in accordance with its terms
except that the enforcement of the Policy may be limited by laws
relating to bankruptcy, insolvency, reorganization, moratorium,
receivership and other similar laws affecting creditors' rights
generally and by general principles of equity;
(b) The information concerning the Corporation and its policy or
policies as set forth in the prospectus of the Trust filed as part of a
Registration Statement dated November 14, 2002, under the caption
entitled "Insurance on the Bonds," regarding Empire State Municipal
Exempt Trust, Guaranteed Series 168, is accurate; and
(c) The financial information as of June 30, 2002 for the Corporation
supplied to the Sponsors is true and correct financial information
provided to the New York Insurance Department in connection with the
licensing of the Corporation, and such financial information is the
most recent financial information available.
IN WITNESS WHEREOF, the undersigned has herewith set her hand and
caused her signature to be affixed hereto on this 14th day of November, 2002.
By /s/ Xxx X. Xxxxx
--------------------------
Assistant Secretary
