Exhibit 10.78
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INDEMNIFICATION AGREEMENT
among
FINANCIAL SECURITY ASSURANCE INC.
UNITED PANAM MORTGAGE CORPORATION
PAN AMERICAN BANK, FSB
XXXXXX ABS CORPORATION
and
XXXXXX BROTHERS INC.
Dated as of December 22, 1997
Xxxxxx ABS Corporation
$114,425,000 United PanAm Mortgage Loan Asset Backed Certificates
Series 1997-1, Class A
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TABLE OF CONTENTS
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Page
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Section 1. Definitions........................................................................ 1
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Section 2. Representations, Warranties and Agreements of Financial Security................... 2
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Section 3. Representations, Warranties and Agreements of the Underwriter...................... 4
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Section 4. Indemnification.................................................................... 5
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Section 5. Indemnification Procedures........................................................ 6
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Section 6. Contribution...................................................................... 7
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Section 7. Miscellaneous..................................................................... 8
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EXHIBIT
Exhibit A Opinion of General Counsel
INDEMNIFICATION AGREEMENT
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INDEMNIFICATION AGREEMENT, dated as of December 22, 1997, among
FINANCIAL SECURITY ASSURANCE INC. ("Financial Security"), UNITED PANAM MORTGAGE
CORPORATION (the "Seller"), PAN AMERICAN BANK, FSB (the "Company"), XXXXXX ABS
CORPORATION (the "Depositor") and XXXXXX BROTHERS INC. (the "Underwriter"):
Section 1. Definitions. For purposes of this Agreement, the
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following terms shall have the meanings provided below:
"Agreement" means this Indemnification Agreement, as amended from time
to time.
"Company Party" means any of the Seller or the Company, and 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.
"Depositor Party" means any of the Depositor, 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.
"Financial Security Agreements" means this 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 December 1, 1997, by and among Financial Security, the Seller, the
Company and the Depositor.
"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 actual expenses reasonably 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
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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 Circular" means the Prospectus Supplement, dated December
22, 1997, including the Prospectus thereto, dated December 15, 1997, relating to
the Securities.
"Offering Document" means the Offering Circular and any amendments or
supplements thereto and any other material or documents delivered by the
Underwriter 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.
"Securities" means the Xxxxxx ABS Corporation, $114,425,000 United
PanAm Mortgage Loan Asset Backed Certificates, Series 1997-1, Class A, issued
pursuant to a Pooling and Servicing Agreement, dated as of December 1, 1997,
among the Depositor, the Seller, the Company and Bankers Trust Company of
California, N.A. as trustee.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Underwriting Agreement" means the Underwriting Agreement dated as of
December 19, 1997, between the Depositor and the Underwriter in respect of the
Securities.
"Underwriter Information" has the meaning provided in Section 3(c)
hereof.
"Underwriter Party" means any of the Underwriter, 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.
Section 2. Representations, Warranties and Agreements of Financial
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Security. Financial Security represents, warrants and agrees, as of the date
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hereof and as of the Closing Date, as follows:
(a) Organization, Etc. Financial Security is a stock insurance
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company duly organized, validly existing, in good standing and authorized to
transact financial guaranty insurance business under the laws of the State of
New York.
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(b) Authorization, Etc. The Policy and the Financial Security
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Agreements have been duly authorized, executed and delivered by Financial
Security.
(c) Validity, Etc. The Policy and the Financial Security Agreements
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constitute legal, 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
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registration under the Securities Act.
(e) No Conflicts. Neither the execution or delivery by Financial
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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
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Financial Security as of December 31, 1996 and December 31, 1995 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 sheet
of Financial Security as of September 30, 1997, and the related statements of
income, changes in shareholder's equity and cash flows for the interim period
then ended, furnished by Financial Security for use in the Offering Circular,
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 except as noted therein
(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 Offering
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Circular set forth under the caption "The Certificate 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 an offering memorandum. Within such limited scope of
disclosure, however, as of the date of the Offering Circular and as of the
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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 light of the circumstances under which they
were made, not misleading.
(h) Additional Information. Financial Security will furnish to the
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Underwriter, the Company, the Seller or the Depositor, upon request of the
Underwriter, the Company, the Seller or the Depositor, 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); provided, however, that, if the Underwriter,
the Company, the Seller or the Depositor shall require a manually signed report
or consent of Financial Security's auditors in connection with such financial
statements, such report or consent shall be at the expense of the Underwriter,
the Company, the Seller or the Depositor, as the case may be.
(i) Opinion of Counsel. Financial Security will furnish to the
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Seller, the Depositor, the Underwriter and the Company on the closing date for
the sale of the Securities an opinion of its Associate General Counsel, to the
effect set forth in Exhibit A attached hereto, dated such closing date and
addressed to the Seller, the Depositor, the Underwriter and the Company.
(j) Consents and Reports of Independent Accountants. Financial
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Security will furnish to the Underwriter, the Company, the Seller and the
Depositor, 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 Offering Circular, 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 claims-paying
ability by Standard & Poor's Ratings Services or Xxxxx'x Investors Service, Inc.
or any other rating agency (collectively, the "Rating Agencies"). The Rating
Agencies, in assigning such ratings, take into account facts and assumptions not
described in the Offering Circular 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
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Underwriter. The Underwriter represents, warrants and agrees, as of the date
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hereof and as of the Closing Date, as follows:
(a) Compliance With Laws. The Underwriter will comply in all
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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 Offering Document.
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(b) Offering Document. The Underwriter will not use, or distribute
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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 or in the immediately succeeding sentence.
Financial Security hereby consents to the Financial Security Information
included in the Offering Circular and the financial statements of Financial
Security incorporated by reference therein. 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 with respect to Financial
Security (unless incorporated by reference therein) prepared in accordance with
generally accepted accounting principals 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 principals in making such determinations."
(c) Underwriting Information. All material provided by the
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Underwriter for inclusion in the Offering Document (as revised from time to
time, the "Underwriter Information"), insofar as such information relates to the
Underwriter, is true and correct in all material respects. In respect of the
Offering Document, the Underwriter Information is limited to the information set
forth in the last paragraph on the cover of the Offering Document, the third
paragraph of page S-3 of the Offering Document and the second paragraph under
the caption "Underwriting" in the Offering Document.
Section 4. Indemnification. (a) Financial Security agrees, upon
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the terms and subject to the conditions provided herein, to indemnify, defend
and hold harmless each Depositor Party, 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 Depositor Party, 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) The Underwriter agrees, 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
Underwriter's breach of any of its representations, warranties or agreements
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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 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
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in Section 6 with respect to contribution or in Section 7(e), 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 there may be one or more legal defenses available to them which are
different from or additional to those available to the Indemnifying 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
Depositor Parties, one such firm for all Underwriter Parties, one such firm for
all Company Parties and one such firm for all Financial Security Parties, as the
case may be, which firm shall be designated in writing by the Depositor in
respect of the Depositor Parties, by the Underwriter in respect of the
Underwriter Parties, by the Company in respect of the Company 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
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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.
Section 6. Contribution. (a) To provide for just and equitable
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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 in such proportion as is appropriate to
reflect 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, the Underwriter shall be
solely responsible for the Underwriter Information, the Seller and the Company
shall be solely responsible for the Company Information, and that, as and to the
extent provided in the Insurance Agreement, the balance of the Offering Document
shall be the responsibility of the Seller and the Company, jointly and not
severally, and of the Depositor, severally and not jointly with the Seller and
the Company.
(d) Notwithstanding anything in this Section 6 to the contrary, an
Underwriter Party shall not be required to contribute an amount in excess of the
amount by which the Underwriter's Compensation, which shall be deemed to be the
percentage of the total price of the Securities underwritten by such Underwriter
set forth as the Underwriting Discount on the cover page of the Offering
Document relating to the Class of Certificates offered thereby, exceeds the
amount of any damages that such Underwriter has otherwise been required to pay
hereunder 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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(g) The provisions relating to contribution set forth in this Section
6 do not limit the rights of any party to indemnification under Section 4.
Section 7. Miscellaneous.
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(a) Notices. All notices and other communications provided for under
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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: Surveillance Department
Re: United PanAm Mortgage Loan Asset Backed
Certificates, Series 1997-1
If to the Seller: United PanAm Mortgage Corporation
000 Xxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Confirmation: (000) 000-0000
Telecopy No.: (000) 000-0000
If to the Company: Pan American Bank, FSB
0000 Xxxxx Xx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Confirmation: (000) 000-0000
Telecopy No.: (000) 000-0000
If to the Depositor: Xxxxxx ABS Corporation
Three World Financial Center
New York, New York 10285
Attention: Xxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
If to the Underwriter: Xxxxxx Brothers Inc.
Three World Financial Center
New York, New York 10285
Attention: Xxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
(b) Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of New York.
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(c) Assignments. This Agreement may not be assigned by any party
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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
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signed by each party hereto.
(e) Survival, Etc. The indemnity and contribution agreements
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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, the Company, the Depositor,
Financial Security or the Underwriter under the Underwriting Agreement or the
Insurance Agreement, as applicable.
(f) Counterparts. This Agreement may be executed in counterparts by
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the parties hereto, and all such counterparts shall constitute one and the same
instrument.
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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: /s/
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Authorized Officer
UNITED PANAM MORTGAGE CORPORATION
By: /s/
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Name:
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Title:
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PAN AMERICAN BANK, FSB
By: /s/
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Name:
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Title:
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XXXXXX ABS CORPORATION
By: /s/
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Name:
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Title:
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XXXXXX BROTHERS INC.
By: /s/
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Name:
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Title:
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EXHIBIT A
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OPINION OF 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 and the Agreements have been duly authorized, executed
and delivered by Financial Security.
3. The Policy and the 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 Agreements, nor the performance by Financial Security of its
obligations thereunder, will conflict with any provision of the certificate of
incorporation or the by-laws 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).
In addition, please be advised that I have reviewed the description of
Financial Security under the caption "The Certificate Insurer" in the Prospectus
Supplement dated December 22, 1997 (the "Offering Document") of the Depositor
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 an offering
memorandum. 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
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Security referred to above, as of the date of the Offering Document 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).
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