EXHIBIT 10.2
EXECUTION COPY
INDEMNIFICATION AGREEMENT
among
FINANCIAL SECURITY ASSURANCE INC.,
LONG BEACH ACCEPTANCE RECEIVABLES CORP.,
GREENWICH CAPITAL MARKETS, INC.
and
CITIGROUP GLOBAL MARKETS INC.
Dated as of October 1, 2003
Long Beach Acceptance Auto Receivables Trust 2003-C
$170,000,000 1.70% Asset Backed Notes, Class A-1
$80,000,000 3.29% Asset Backed Notes, Class A-2
Section 1. Definitions.......................................................1
Section 2. Representations, Warranties and Agreements of Financial Security..3
Section 3. Representations, Warranties and Agreements of the Underwriters....6
Section 4. Indemnification...................................................6
Section 5. Indemnification Procedures........................................7
Section 6. Contribution......................................................8
Section 7. Miscellaneous.....................................................9
EXHIBIT A - Opinion of Assistant General Counsel
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT, dated as of October 1, 2003, among FINANCIAL
SECURITY ASSURANCE INC. ("Financial Security"), LONG BEACH ACCEPTANCE
RECEIVABLES CORP. (the "Company"), GREENWICH CAPITAL MARKETS, INC. - ("RBS GC")
and CITIGROUP GLOBAL MARKETS INC., ("Citigroup" and, together with RBS GC, the
"Underwriters"):
Section 1. DEFINITIONS. For purposes of this Agreement, the following
terms shall have the meanings provided below:
"Agreement" means this Indemnification Agreement, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
the terms hereof.
"Commission" means the Securities and Exchange Commission.
"Company Party" means any of the Company, 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.
"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.
"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 October 1, 2003, among Financial Security, the Company and LBAC, and
Long Beach Acceptance Auto Receivables Trust 2003-C as the same may be amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof.
"LBAC" means Long Beach Acceptance Corp., a Delaware Corporation.
"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, 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;
provided, however, the Preliminary Computational Materials dated October 15,
2003, in respect of the Securities shall not be included in this definition of
"Offering Document".
"Person" means any individual, partnership, joint venture, corporation,
trust, unincorporated organization, limited liability company, limited liability
partnership 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.
"Prospectus" means, collectively, the Prospectus relating to the
Securities dated September 11, 2003, and the Prospectus Supplement.
"Prospectus Supplement" means the Prospectus Supplement dated October
17, 2003 relating to the Securities.
"Rating Agencies" has the meaning provided in the last paragraph of
Section 2 hereof.
"Representative" means Citigroup Global Markets Inc. as representative
of the Underwriters.
"Securities" means the Long Beach Acceptance Auto Receivables Trust
2003-C $170,000,000 1.70% Asset Backed Notes, Class A-1, $80,000,000 3.29% Asset
Backed Notes, Class A-2, each as described in the Prospectus Supplement and
covered by the Policy.
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"Securities Act" means the Securities Act of 1933, as amended from time
to time, and any rule or regulation in effect from time to time under such Act.
"Spread Account Agreement" means the Master Spread Account Agreement,
dated as of October 1, 2003 among the Company, the Collateral Agent specified
therein, Financial Security and the Trustee specified therein, as the same may
be amended, supplemented or otherwise modified from time to time in accordance
with the terms thereof.
"Underwriters" means Greenwich Capital Markets, Inc. and Citigroup
Global Markets Inc.
"Underwriter Information" has the meaning provided in Section 3(c)
hereof.
"Underwriter Party" means any of the Underwriters, its respective
parent, subsidiaries and affiliates and any shareholder, director, officer,
employee, or agent of the "controlling person" (as such item is used in the
Securities Act) of any of the foregoing.
"Underwriting Agreement" means the Underwriting Agreement dated as of
October 17, 2003 among the Company, LBAC and the Underwriters with respect to
the offer and sale of the Securities, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with the terms thereof.
Section 2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF FINANCIAL
SECURITY. Financial Security represents, warrants and agrees with the parties
hereto 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.
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(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, 2002 and December 31, 2001 and
the related consolidated statements of income, changes in shareholder's
equity and cash flows for the fiscal years then ended, and the interim
consolidated balance sheets for Financial Security as of March 31, 2003
and June 30, 2003, and the related statements of income, changes in
shareholders equity and cash flows for the interim period then ended,
furnished by Financial Security to the Underwriters 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.
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(g) Financial Security Information. The information in the
Prospectus Supplement set forth 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, as of the date of the
Prospectus Supplement and as of the date hereof, 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 Company, upon request of the Underwriters or
the Company, 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 issuance of the
Prospectus in connection with the offering or sale of the Securities,
the Company or the Underwriters will notify Financial Security of such
requirement to deliver a Prospectus and Financial Security will
promptly provide the Underwriters and the Company with any revisions to
the Financial Security Information that are in the judgment of
Financial Security reasonably necessary to prepare a supplement to the
Prospectus.
(i) Opinion of Counsel. Financial Security will furnish to the
Underwriters and the Company, on the closing date for the sale of the
Securities, an opinion of its Assistant General Counsel, to the effect
set forth in Exhibit A attached hereto, dated such closing date and
addressed to the Company and the Underwriters.
(j) Consents and Reports of Independent Accountants. Financial
Security will furnish to the Underwriters and the Company, 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.
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Section 3. Representations, Warranties and Agreements of the
Underwriters. Each of the Underwriters represents, warrants and agrees with the
parties hereto 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 any Offering Memorandum.
(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 Supplement.
Each Offering Document 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 information (other than
financial information included in the Financial Security Information) with
respect to Financial Security prepared in accordance with generally accepted
accounting principles will include the following statement immediately preceding
such financial information:
"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 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. With respect to any Underwriter,
all material provided by such Underwriter for inclusion in any Offering
Document (as revised from time to time and certified by such
Underwriter in writing to constitute Underwriter Information, the
"Underwriter Information"), insofar as such information relates to such
Underwriter, is true and correct in all material respects. In respect
of the Prospectus Supplement, the Underwriter Information with respect
to such Underwriter is limited to the information relating to such
Underwriter set forth (i) in the body of the Prospectus Supplement
under the caption "Underwriting" the first, second and last two
paragraphs and (ii) any other information certified in writing by such
Underwriter to be Underwriter Information.
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Section 4. Indemnification.
(a) Financial Security agrees, upon the terms and subject to
the conditions provided herein, to indemnify, defend and hold harmless
each Company 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 Company 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 and 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 such Underwriter's
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
statement or omission was made in the Underwriter Information with
respect to such 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.
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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 shall have the right to employ separate counsel in any such
action and to participate in the defense thereof at the expense of the
Indemnified Party; provided, however, that the fees and expenses of such
separate counsel shall be at the expense of the Indemnifying Party if (i) the
Indemnifying Party has agreed to pay such fees and expenses, (ii) the
Indemnifying Party shall have failed to assume the defense of such action or
proceeding and employ counsel satisfactory to the Indemnified Party in any such
action or proceeding or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both the Indemnified Party and the
Indemnifying Party, and the Indemnified Party shall have been advised by counsel
that (A) there may be one or more legal defenses available to it which are
different from or additional to those available to the Indemnifying Party and
(B) the representation of the Indemnifying Party and the Indemnified Party by
the same counsel would be inappropriate or contrary to prudent practice, in
which case, if the Indemnified Party notifies the Indemnifying Party in writing
that it elects 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 Party, 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 the
Company 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 Company in respect of the Company Parties, by the
Representative in respect of the Underwriter Parties and by Financial Security
in respect of the Financial Security Parties. 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 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.
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Section 6. Contribution.
(a) To provide for just and equitable contribution if the
indemnification provided by any Indemnifying Party is determined to be
unavailable for any Indemnified Party (other than due to application of
this Section), each Indemnifying Party 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, each Underwriter
shall be solely responsible for the Underwriter Information with
respect to such Underwriter and that the balance of each Offering
Document shall be the responsibility of LBAC and the Company.
(d) Notwithstanding anything in this Section 6 to the
contrary, no Underwriter shall be required to contribute an amount in
excess of the amount by which the total principal balance of the
Securities underwritten by such Underwriter exceeds the amount of any
damages that such Underwriter has otherwise been required to pay in
respect of any breach by such Underwriter of its representations or
warranties contained in Section 3 hereof.
(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. 000 Xxxx
Xxxxxx Xxx Xxxx, XX 00000 Attention: Senior
Vice President--Transaction Oversight
Department (with a copy to the Attention of
the General Counsel)
Re: Long Beach Acceptance Auto Receivables
Trust 2003-C Policy No. 51465-N
Confirmation: (000) 000-0000
Facsimile Nos.: (000) 000-0000, (212)
339-3529 (in each case in which notice or
other communication to Financial Security
refers to an Event of Default, a claim on
the Policy or with respect to which failure
on the part of Financial Security to respond
shall be deemed to constitute consent or
acceptance, then a copy of such notice or
other communication should also be sent to
the attention of each of the General Counsel
and the Head-Financial Guaranty Group and
shall be marked to indicate "URGENT MATERIAL
ENCLOSED.")
If to the Company:
Long Beach Acceptance Receivables Corp.
Xxx Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
Confirmation: (000) 000-0000
If to the RBS GC:
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Asset-Backed Finance
Facsimile No: (000) 000-0000
Confirm No: (000) 000-0000
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If to the Citigroup:
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Asset Backed Finance
Facsimile No:(000) 000-0000
Confirm No: (000) 000-0000
Phone: (000) 000-0000
(b) Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND THIS AGREEMENT AND ALL MATTERS ARISING 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 LBAC or the Company under the Underwriting Agreement or
under 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.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
FINANCIAL SECURITY ASSURANCE INC.
By:
----------------------------------------
Name:
Title:
LONG BEACH ACCEPTANCE RECEIVABLES CORP.
By:
----------------------------------------
Name:
Title:
GREENWICH CAPITAL MARKETS, INC.
By:
----------------------------------------
Name:
Title:
CITIGROUP GLOBAL MARKETS INC.
By:
----------------------------------------
Name:
Title:
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EXHIBIT A
OPINION OF ASSISTANT GENERAL 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, the Insurance Agreement and the Indemnification
Agreement been duly authorized, executed and delivered by Financial Security.
3. The Policy, the Insurance Agreement and the Indemnification
Agreement 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 Insurance Agreement or the Indemnification Agreement, 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, 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).
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6. In addition, please be advised that I have reviewed the description
of Financial Security under the caption "THE INSURER" in the Prospectus
Supplement dated October 17, 2003, (the "Offering Document") of the Company with
respect to the Securities. The information provided in the Offering Document
with respect to Financial Security is limited and does not purport to provide
the scope of disclosure required to be included in a prospectus with respect to
a registrant under the Securities Act of 1933, as amended, 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
which would cause me to believe that the description of Financial Security
referred to above, as of the date of the Prospectus Supplement or the date
hereof, contained any untrue statement of a material fact or omitted 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 no opinion
is rendered with respect to any financial statements or other financial
information contained or referred to therein).
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