EXHIBIT 10.2
EXECUTION COPY
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INDEMNIFICATION AGREEMENT
among
FINANCIAL SECURITY ASSURANCE INC.,
AFS FUNDING CORP.
and
CREDIT SUISSE FIRST BOSTON CORPORATION
Dated as of February 21, 2002
$250,000,000 Class A-1 1.92% Asset Backed Notes
$225,000,000 Class A-2-A 2.64% Asset Backed Notes
$225,000,000 Class A-2-B Floating Rate Asset Backed Notes
$500,000,000 Class A-3 Floating Rate Asset Backed Notes
$400,000,000 Class A-4 4.61% Asset Backed Notes
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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........................................................................8
EXHIBIT A -- Opinion of Assistant General Counsel
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT dated as of February 13, 2002, among FINANCIAL
SECURITY ASSURANCE INC. ("FINANCIAL SECURITY"), AFS FUNDING CORP., (the
"SELLER") and CREDIT SUISSE FIRST BOSTON CORPORATION, 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.
"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 Stock Pledge
Agreement, the Spread Account Agreement, the Spread Account Agreement Supplement
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 February 21, 2002 among Financial Security, the Trust, AmeriCredit Financial
Services, Inc., AFS Funding Corp., 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 and any other material or
documents delivered by the Underwriters 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.
"PROSPECTUS" means, collectively, the Prospectus relating to the Securities
dated January 25, 2002 and the Prospectus Supplement dated February 13, 2002
(the "Prospectus Supplement") relating to the Securities.
"REPRESENTATIVE" means Credit Suisse First Boston Corporation, as
representative of the Underwriters.
"SECURITIES" means the Trust's $250,000,000 Class A-1 1.92% Asset Backed
Notes, $225,000,000 Class A-2-A 2.64% Asset Backed Notes, $225,000,000 Class
A-2-B Floating Rate Asset Backed Notes, $500,000,000 Class A-3 Floating Rate
Asset Backed Notes and $400,000,000 Class A-4 4.61% Asset Backed Notes issued
pursuant to the Series 2002-A 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 shareholder, director, officer, 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, as amended
and restated, dated as of May 11, 1998, as amended as of October 25, 1999, as
further amended as of May 22, 2000, as further amended as of November 29, 2000,
among Financial Security, AFS Funding Trust, the collateral agent named therein
and the trustees specified therein, as the same may be amended, supplemented or
otherwise modified in accordance with the terms thereof.
"SPREAD ACCOUNT AGREEMENT SUPPLEMENT" means the Series 2002-A Supplement to
Spread Account Agreement, dated as of February 21, 2002, among Financial
Security, AFS Funding Corp., the collateral agent named therein and the trustees
specified therein.
"STOCK PLEDGE AGREEMENT" means the Stock Pledge Agreement, dated as of May
1, 1996 among Financial Security, AmeriCredit Financial Services, Inc. and the
collateral agent named therein, as the same may be amended, supplemented or
otherwise modified in accordance with the terms thereof.
"TRUST" means AmeriCredit Automobile Receivables Trust 2002-A.
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"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,
agent or "controlling person" (as such item is used in the Securities Act) of
any of the foregoing.
"UNDERWRITERS" means Barclays Capital, Inc., Credit Suisse First Boston
Corporation, Bank of America Securities LLC, Deutsche Banc Alex. Xxxxx Inc.,
First Union Securities, Inc. and Xxxxxxx Xxxxx and Xxxxxx, Xxxxxx & Xxxxx
Incorporated, as underwriters.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement, dated as of
February 13, 2002 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).
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(f) FINANCIAL INFORMATION. The consolidated balance sheets of
Financial Security as of December 31, 2000 and December 31, 1999 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, 2001,
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 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 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, to the effect set
forth in Exhibit A attached hereto, dated such closing date and addressed
to the Seller and the Underwriters.
(j) CONSENTS AND REPORTS OF INDEPENDENT ACCOUNTANTS. Financial
Security will furnish to the Underwriters and the Seller, upon request, as
comfort from its
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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
Xxxxx'x Investors Service, its insurer financial strength by Standard & Poor's
Ratings Services and Standard & Poor's (Australia) Pty. Ltd., its claims-paying
ability by Fitch IBCA, Inc. and Japan 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.
(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 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
5
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. In respect of
the Prospectus Supplement, the Underwriter Information is limited to the
information set forth (i) on the cover page of the Prospectus Supplement,
the information in the bottom table under the categories entitled "Price to
Public", "Underwriting Discounts" and "Proceeds to Seller" and (ii) in the
body of the Prospectus Supplement and within the "Underwriting" section,
the first, third and final (i.e., seventh) paragraphs immediately following
the Class A-4 Notes Underwriter commitment table.
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, upon the terms and subject to
the conditions provided herein, to indemnify, defend and hold harmless each
Financial Security Party and each Seller 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 or Seller
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
6
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 satisfactory to Financial Security 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 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.
7
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 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.
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.
8
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: AmeriCredit Automobile Receivables Trust 2002-A
Confirmation: (000) 000-0000
Telecopy Nos.: (000) 000-0000,
(000) 000-0000
If to the Seller: AFS Funding Corp.
000 Xxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attention: General Counsel
Confirmation: (000) 000-0000
If to the Underwriters: Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxxx,
Legal and Compliance Department
Confirmation: (000) 000-0000
Telecopy No.: (000) 000-0000
(b) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS 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.
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(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]
10
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/ Xxxxxxx Xxxxxxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
--------------------------------------
Title: Authorized Officer - Managing Director
AFS FUNDING CORP.
By: /s/ Xxxxx Xxxxx
----------------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President, Structured Finance
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxx X. XxXxxxxxxx, XX
----------------------------------------------
Name: Xxxx X. XxXxxxxxxx, XX
Title: Director
11
EXHIBIT A
OPINION OF ASSOCIATE 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 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 the Prospectus (the
"OFFERING DOCUMENT") of the Seller 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 Act in
connection with the public offer and sale of securities of such registrant.
Within such limited scope of disclosure,
A-1
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 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).
A-2
