THE MONEY STORE INC.
TMS AUTO HOLDINGS, INC.
The Money Store Auto Trust 1997-1
$91,000,000 Class A-1 6.19% Asset Backed Notes
$36,400,000 Class A-2 6.64% Asset Backed Notes
2,600,000 6.83% Asset-Backed Certificates
UNDERWRITING AGREEMENT
March 18, 1997
XXXXX XXXXXX INC.
as Representative (the "Representative")
of the several Underwriters named
herein
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Money Store Inc., a New Jersey corporation ("TMSI") and TMS Auto
Holdings, Inc., a Delaware corporation (the "Seller") propose to cause THE MONEY
STORE AUTO TRUST 1997-1 (the "Trust") to issue and sell $91,000,000 principal
amount of its Class A-1 6.19% Asset Backed Notes (the "Class A-1 Notes"), and
$36,400,000 principal amount of its Class A-2 6.64% Asset Backed Notes (the
"Class A-2 Notes" and, together with the Class A-1 Notes, the "Notes") and
$2,600,000 principal amount of its 6.83% Asset Backed Certificates (the
"Certificates" and, together with the Notes, the "Securities") to the several
underwriters named in Schedule I attached hereto (the "Underwriters"). The
assets of the Trust include, among other things, a pool of non-prime receivables
generated pursuant to motor vehicle retail installment sale contracts (the
"Initial Receivables") acquired by the Seller pursuant to a purchase agreement
dated as of February 28, 1997 (the "Purchase Agreement") between the Seller and
TMS Auto Finance, Inc., all monies received under the Initial Receivables after,
with respect to each Initial Receivable, the later of (x) February 28, 1997 and
(y) the date of its origination (the "Initial Cutoff Date"), additional
receivables generated pursuant to motor vehicle retail installment sale
contracts (the "Subsequent Receivables," and together with the Initial
Receivables, the "Receivables") to be conveyed to the Trust subsequent to the
date of issuance of the Securities and all monies received under the Subsequent
Receivables after their respective subsequent cutoff dates (each, a "Subsequent
Cutoff Date"), an assignment of the security interests in the vehicles financed
thereby, certain bank accounts and the proceeds thereof, a financial guaranty
insurance policy issued by MBIA Insurance Corporation (the "Insurer") to the
Indenture Trustee (as defined below) for the benefit of the Noteholders (the
"Note Policy"), a financial guarantee insurance policy issued by the Insurer to
the Owner Trustee (as defined herein) for the benefit of the Certificateholders
(the "Certificate Policy" and, with the Note Policy, the "Policies") and certain
other property and the proceeds thereof to be conveyed to the Trust pursuant to
the Sale and Servicing Agreement to be dated as of February 28, 1997 (the "Sale
and Servicing Agreement") among the Trust, the Seller, TMSI and TMS Auto Finance
Inc., as servicer (the "Servicer"). Pursuant to the Sale and Servicing
Agreement, the Seller will sell the Receivables to the Trust and the Servicer
will service the Receivables on behalf of the Trust. In addition, pursuant to
the Sale and Servicing Agreement, the Servicer will agree to perform certain
administrative tasks imposed on the Trust under the Indenture. The Notes will be
issued pursuant to the Indenture to be dated as of February 28, 1997 (as amended
and supplemented from time to time, the "Indenture"), between the Trust and The
Chase Manhattan Bank, a New York banking corporation (the "Indenture Trustee"
and in its capacity as collateral agent, the "Indenture Collateral Agent"). The
Certificates, each representing a fractional undivided interest in the Trust,
will be issued pursuant to a Trust Agreement to be dated as of February 28,
1997, between the Seller and Bankers Trust (Delaware), as owner trustee (the
"Owner Trustee"). The Policies will be issued pursuant to the Insurance and
Indemnity Agreement dated as of February 28, 1997 by and among the Insurer,
TMSI, the Seller, the Servicer, the Indenture Trustee and the Owner Trustee. In
connection with the transactions contemplated hereby, the Representative, the
Insurer, TMSI and the Seller will enter into an Indemnification Agreement dated
as of March 25, 1997 (the "Indemnification Agreement").
Prior to the delivery of the Securities by the Seller, and the public
offering thereof by the Underwriters, the Representative, the Seller and TMSI
shall enter into an agreement substantially in the form of Exhibit A hereto (the
"Pricing Agreement"), which shall specify such applicable information as is
indicated in, and be in substantially the form of, Exhibit A hereto. The
offering of the Securities will be governed by this Agreement, as supplemented
by the Pricing Agreement. From and after the date of the execution and delivery
of the Pricing Agreement, this Agreement shall be deemed to incorporate the
Pricing Agreement. Capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in the Sale and Servicing Agreement or,
if not defined therein, in the Indenture.
The Seller and TMSI understand that the Underwriters propose to make a
public offering of the Securities as soon as the Underwriters deem advisable
after the Pricing Agreement has been executed and delivered.
Section 1. REPRESENTATIONS AND WARRANTIES OF TMSI AND THE SELLER.
(a) TMSI and the Seller represent and warrant to each of the Underwriters
as of the date hereof and, if the Pricing Agreement is executed on a date other
than the date hereof, as of the date of the Pricing Agreement (such latter date
being hereinafter referred to as the "Representation Date") as follows:
(i) TMSI and the Seller have filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-14075) including a prospectus, and such amendments thereto as may have
been required to the date hereof, relating to the Securities and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "1933 Act"), and such registration
statement, as amended, has become effective. Such registration statement,
as amended, and the prospectus relating to the sale of the Securities
constituting a part thereof as from time to time amended or supplemented
(including any prospectus supplement (the "Prospectus Supplement") filed
with the Commission pursuant to Rule 424 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations") and any
information incorporated therein by reference are respectively referred to
herein as the "Registration Statement" and the "Prospectus." The conditions
of Rule 415 under the 1933 Act have been satisfied with respect to TMSI,
the Seller and the Registration Statement.
(ii) At the time the Registration Statement became effective and at
the Representation Date, the Registration Statement complied and will
comply in all material respects with the requirements of the 1933 Act, the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the
1933 Act Regulations, and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, at the Representation Date (unless the term "Prospectus" refers
to a prospectus which has been provided to the Underwriters by TMSI and the
Seller for use in connection with the offering of the Securities which
differs from the Prospectus on file at the Commission at the time the
Registration Statement became effective, in which case at the time it is
first provided to the Underwriters for such use) and at Closing Time
referred to in Section 2 hereof, will not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to TMSI and the Seller in writing by
any Underwriter through the Representative expressly for use in the
Registration Statement or Prospectus and provided further, that the Company
makes no representations or warranties as to any information in any
Computational Materials (as defined in Section 11 below) provided by any
Underwriter to the Company pursuant to Section 11, except to the extent of
any errors in the Computational Materials that are caused by errors in the
pool information provided by the Company to the applicable Underwriter. The
conditions to the use by TMSI and the Seller of a registration statement on
Form S-3 under the 1933 Act, as set forth in the General Instructions to
Form S-3, have been satisfied with respect to the Registration Statement
and the Prospectus.
(iii) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Seller, the Servicer, TMSI and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of
business, which would have a material adverse effect on the ability of each
of TMSI, the Seller and the Servicer to perform its obligations under the
Basic Documents (as defined below) to which it is a party and (B) there
have been no transactions entered into by the Seller, the Servicer, TMSI or
any of its subsidiaries, other than those in the ordinary course of
business, which would have a material adverse effect on the ability of the
Seller, the Servicer or TMSI to perform its obligations under this
Agreement, the Pricing Agreement, the Sale and Servicing Agreement, the
Trust Agreement, the Purchase Agreement, the Indemnification Agreement and
the Insurance and Indemnity Agreement (this Agreement, the Pricing
Agreement, the Sale and Servicing Agreement, the Trust Agreement, the
Purchase Agreement, the Indemnification Agreement and the Insurance and
Indemnity Agreement being herein referred to, collectively, as the "Basic
Documents") to which it is a party.
(iv) Each of TMSI, the Seller and the Servicer has been duly organized
and is validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation with all requisite power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its obligations
under the Basic Documents to which it is a party; and each is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify would not have a material
adverse effect on, (A) the ability of any of TMSI, the Seller or the
Servicer to perform its obligations under the Basic Documents to which it
is a party, or (B) the business, properties, financial position, operations
or results of operations of TMSI, the Seller or the Servicer.
(v) Any person who signed this Agreement on behalf of TMSI or the
Seller was, as of the time of such signing and delivery, and is now duly
elected or appointed, qualified and acting, and the Agreement, as so
executed, is duly and validly authorized, executed, and constitutes the
valid, legal and binding agreement of each of TMSI and the Seller,
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights in general and by general
principles of equity regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(vi) Each Basic Document to which it is a party has been duly and
validly authorized by TMSI, the Seller and the Servicer and, when executed
and delivered by TMSI, the Seller and the Servicer, as the case may be, and
duly and validly authorized, executed and delivered by the other parties
thereto, will constitute, the valid and binding agreement of TMSI, the
Seller and the Servicer, as the case may be, enforceable in accordance with
their terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights in general and by general principles of equity
regardless of whether such enforcement is considered in a proceeding in
equity or at law; and such Basic Documents and the Policies conform in all
material respects to the statements relating thereto contained in the
Prospectus.
(vii) The Notes, when duly and validly executed by the Indenture
Trustee, authenticated and delivered in accordance with the Indenture, and
delivered and paid for pursuant hereto will be validly issued and
outstanding and entitled to the benefits of the Indenture. The
Certificates, when duly and validly executed by the Owner Trustee,
authenticated and delivered in accordance with the Trust Agreement, and
delivered and paid for pursuant hereto will be validly issued and
outstanding and entitled to the benefits of the Trust Agreement. The
Securities conform in all material respects to all statements relating
thereto contained in the Prospectus.
(viii) Neither the grant of the security interest in the Collateral to
the Indenture Collateral Agent pursuant to the Indenture, nor the issuance
or delivery of the Notes or the Certificates, nor the consummation of any
other of the transactions herein contemplated or in any other Basic
Document, nor the execution and delivery by each of TMSI, the Seller and
the Servicer of the Basic Documents to which it is a party, nor the
fulfillment of the terms of the Notes or the Certificates or each such
Basic Document will result in the breach of any term or provision of the
charter or by-laws of TMSI, the Seller or the Servicer, and none of TMSI,
the Seller and the Servicer is in breach or violation of or in default (nor
has an event occurred which with notice or lapse of time or both would
constitute a default) under the terms of (A) any material obligation,
agreement, covenant or condition contained in any material contract,
indenture, loan agreement, note, lease or other material instrument to
which it is a party or by which it may be bound, or to which any of its
property or assets is subject, or (B) any law, decree, order, rule or
regulation applicable to TMSI, the Seller, the Servicer or the Receivables
of any court or supervisory, regulatory, administrative or governmental
agency, body or authority, or arbitrator having jurisdiction over any such
entity or its properties or the Receivables, the default in or the breach
or violation of which would have a material adverse effect on TMSI, the
Seller or the Servicer or the ability of any such entity to perform its
obligations under the Basic Documents to which it is a party; and neither
the issuance or delivery of the Notes or the Certificates, nor the
consummation of any other of the transactions herein contemplated, nor the
fulfillment of the terms of the Notes or the Certificates or the Basic
Documents will result in such a breach, violation or default which would
have such a material adverse effect.
(ix) Except as described in the Prospectus, there is no action, suit
or proceeding against or investigation of TMSI, the Seller or the Servicer
now pending, or, to the knowledge of TMSI or the Seller, threatened against
TMSI, the Seller or the Servicer, before any court, governmental agency or
body (A) which is required to be disclosed in the Prospectus (other than as
disclosed therein) or (B) (1) asserting the invalidity of any Basic
Document or the Notes or the Certificates, (2) seeking to prevent the
issuance of the Notes or the Certificates or the consummation of any of the
transactions contemplated by the Basic Documents, (3) which would
materially and adversely affect the performance by any of TMSI, the Seller
or the Servicer of its obligations under the Basic Documents to which it is
a party, or the validity or enforceability of any Basic Document or the
Notes or the Certificates or (4) seeking to adversely affect the federal
income tax attributes of the Notes or the Certificates described in the
Prospectus; all pending legal or governmental proceedings to which TMSI,
the Seller or the Representative is a party or of which any of their
respective property or assets is the subject which are not described in the
Prospectus, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material to TMSI's, the
Seller's and the Servicer's ability to perform their respective obligations
under the Basic Documents to which each is a party.
(x) Each of TMSI, the Seller and the Servicer possesses such licenses,
certificates, authorities or permits issued by the appropriate state or
federal regulatory agencies or governmental bodies necessary to conduct the
businesses now conducted by it (except where the failure to possess any
such license, certificate, authority or permit would not materially and
adversely affect the holders of the Notes or the Certificates) and none has
received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which,
singly or in the aggregate, if the subject of any unfavorable decision,
ruling or finding, would materially and adversely affect the ability of
such entity to perform its obligations under the Basic Documents to which
it is a party.
(xi) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
issuance or sale of the Securities hereunder, except such as may be
required under the 1933 Act, the Trust Indenture Act or the 1933 Act
Regulations or state securities laws.
(xii) At the time of execution and delivery of the Sale and Servicing
Agreement by TMSI, the Seller, the Servicer and the Trust, the Trust will
have acquired good title to the Initial Receivables (including an
assignment of the security interests in the Financed Vehicles securing the
Initial Receivables and the proceeds of each of the foregoing), free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity, and, upon delivery to the Underwriters of the Securities, the
Underwriters will have good and marketable title to the Securities free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity. At each Subsequent Transfer Date, the Trust will have acquired
good title to the Subsequent Receivables (including an assignment of the
security interests in the Financed Vehicles securing the Subsequent
Receivables and the proceeds of each of the foregoing), free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(xiii) The transfer of the Initial Receivables by TMS Auto Finance to
the Seller, and by the Seller to the Trust at Closing Time will be treated
by TMS Auto Finance and the Seller for financial accounting and reporting
purposes as a sale of assets and not as a pledge of assets to secure debt.
The transfer of the Subsequent Receivables by TMS Auto Finance to the
Seller, and by the Seller to the Trust at the applicable Subsequent
Transfer Date will be treated by TMS Auto Finance and the Seller for
financial accounting and reporting purposes as a sale of assets and not as
a pledge of assets to secure debt.
(xiv) Any taxes, fees and other governmental charges that are assessed
and due in connection with the execution, delivery and issuance of the
Basic Documents and the Securities which have become due or will become due
on or prior to Closing Time shall have been paid at or prior to Closing
Time.
(xv) The Trust is not required to be registered as an "investment
company" under the Investment Company Act of 1940 (the "1940 Act").
(xvi) The Receivables are chattel paper as defined in the UCC as in
effect in the State of California.
(b) Any certificate signed by any officer of TMSI, the Seller or the
Servicer and delivered to the Representative on behalf of the Underwriters or
counsel for the Underwriters shall be deemed a representation and warranty by
TMSI, the Seller and the Servicer as to the matters covered thereby.
Section 2. DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Seller agrees to cause
the Trust to sell the Securities to the Underwriters. In the event that the
initial remittance rates and prices for the Securities have not been agreed upon
and the Pricing Agreement has not been executed and delivered by all parties
thereto by the close of business on the fourth business day following the date
of this Agreement, this Agreement shall terminate forthwith, without liability
of any party to any other party, unless otherwise agreed upon by the
Representative, TMSI and the Seller.
(b) Delivery of the Certificates shall be made at the offices of Stroock &
Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other
place as shall be agreed upon by the Representative, TMSI and the Seller, at
10:00 A.M., New York City time, on March 25, 1997, or such other time not later
than ten business days after such date as shall be agreed upon by the
Representative, TMSI and the Seller (such time and date of payment and delivery
being herein called "Closing Time").
(c) The Securities to be delivered will be initially represented by one or
more Class A-1 Notes, one or more Class A-2 Notes and one or more Certificates
registered in the name of Cede & Co., the nominee of the Depository Trust
Company ("DTC").
For purposes of this Agreement, all Securities initially represented by one
or more certificates registered in the name of Cede & Co., the nominee of DTC,
shall be referred to herein, collectively, as the "DTC Securities."
The interests of beneficial owners of the DTC Securities will be
represented by book entries on the records of DTC and participating members
thereof. Definitive Notes and Definitive Certificates will be available in
exchange for DTC Securities only under the limited circumstances specified in
the Indenture and Trust Agreement. The DTC Securities to be purchased by the
Underwriters will be delivered by the Seller to the Underwriters (which delivery
shall be made through the facilities of DTC) against payment of the purchase
price therefor. Each of the Underwriters hereby agrees, severally and not
jointly, subject to the terms, conditions and provisions hereof, to purchase
from the Trust the Securities in the principal amounts set forth opposite its
name on Schedule I at the prices specified in the Pricing Agreement. The
purchase price shall be paid by the Representative by a same day federal funds
wire payable to the order of the Seller or its designee. The Securities will be
made available for examination by the Representative not later than 10:00 A.M.
on the last business day prior to Closing Time.
(d) The Securities shall be offered to the public from time to time for
sale in negotiated transactions or otherwise, at prices determined at the time
of sale.
Section 3. COVENANTS OF TMSI AND THE SELLER. TMSI and the Seller covenant
with each of the Underwriters as follows:
(a) Either TMSI or the Seller will promptly notify the Representative,
and confirm the notice in writing, (i) of any amendment to the Registration
Statement; (ii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information; (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the initiation or threatening of any proceedings for that purpose; and (iv)
of the receipt by either of any notification with respect to the suspension
of the qualification of the Notes or the Certificates for sale in any
jurisdiction or the initiation or threatening of any proceedings for that
purpose. TMSI and the Seller will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain
the lifting thereof at the earliest possible moment.
(b) Either TMSI or the Seller will give the Representative notice of
their intention to file or prepare any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (including any
revised prospectus which they propose for use by the Underwriters in
connection with the offering of the Securities which differs from the
prospectus on file at the Commission at the time the Registration Statement
becomes effective, whether or not such revised prospectus is required to be
filed pursuant to Rule 424(b) of the 1933 Act Regulations), will furnish
the Representative with copies of any such amendment or supplement a
reasonable amount of time prior to such proposed filing or use, as the case
may be, and, unless required by law to do so, will not file any such
amendment or supplement or use any such prospectus to which the
Representative or counsel for the Underwriters shall reasonably object.
(c) TMSI and the Seller will deliver to the Representative as many
signed and as many conformed copies of the Registration Statement as
originally filed and of each amendment thereto (in each case including
exhibits filed therewith) as the Representative may reasonably request.
(d) TMSI and the Seller will furnish to the Representative, from time
to time during the period when the Prospectus is required to be delivered
under the 1933 Act or the Securities Exchange Act of 1934, as amended (the
"1934 Act"), such number of copies of the Prospectus (as amended or
supplemented) as the Representative may reasonably request for the purposes
contemplated by the 1933 Act or the 1934 Act or the respective applicable
rules and regulations of the Commission thereunder.
(e) If any event shall occur as a result of which it is necessary, in
the reasonable opinion of counsel for the Underwriters, to amend or
supplement the Prospectus in order to make the Prospectus not misleading in
the light of the circumstances existing at the time it is delivered to a
purchaser, TMSI and the Seller will forthwith amend or supplement the
Prospectus (in form and substance satisfactory to counsel for the
Underwriter) so that, as so amended or supplemented, the Prospectus will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a
purchaser, not misleading, and TMSI and the Seller will furnish to the
Representative a reasonable number of copies of such amendment or
supplement. Neither the consent of the Representative of, nor the delivery
by the Representative of, any such amendment or supplement shall constitute
a waiver of any of the conditions set forth in Section 5.
(f) TMSI and the Seller will endeavor, in cooperation with the
Underwriter, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the
United States as the Representative may designate; provided, however, that
neither TMSI nor the Seller shall be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. In each
jurisdiction in which the Securities have been so qualified, TMSI and the
Seller will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for a period
of not less than one year from the date hereof.
(g) TMSI and the Seller will file with the Commission such reports on
Form SR as may be required pursuant to Rule 463 under the 1933 Act.
(h) So long as any Notes or Certificates shall be outstanding, TMSI
and the Seller will deliver to the Underwriters, as promptly as
practicable, such information concerning TMSI, the Seller, the Servicer or
the Notes or other Certificates as the Representative may reasonably
request from time to time.
Section 4. PAYMENT OF EXPENSES. TMSI and the Seller will pay all expenses
incident to the performance of their obligations under this Agreement, including
(i) the printing (or other reproducing) and filing of the Registration Statement
as originally filed and of each amendment thereto (other than amendments
relating to the filing of Computational Materials pursuant to Section 11); (ii)
the reproducing of the Basic Documents and the Indenture; (iii) the preparation,
printing, issuance and delivery of the DTC Securities to the Underwriters; (iv)
the fees and disbursements of (A) the Underwriters' counsel, (B) accountants for
TMSI and the Seller and issuer of the comfort letter, (C) the Indenture Trustee
and its counsel, (D) the Owner Trustee and its counsel, and (E) DTC in
connection with the book-entry registration of the DTC Securities; (v) the
qualification of the Securities under state securities laws in accordance with
the provisions of Section 3(f) hereof, including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey; (vi) the printing (or
other reproducing) and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto, of
each preliminary prospectus and of the Prospectus and any amendments or
supplements thereto; (vii) the fees charged by the Insurer; (viii) the fees
charged by each of Standard & Poor's Structured Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc. ("S&P") and Xxxxx'x Investors Service, Inc.
("Moody's") for rating the Securities; and (ix) the reproducing and delivery to
the Underwriters of copies of the Blue Sky Survey.
If this Agreement is terminated by the Representative in accordance with
the provisions of Section 5 or Section 9(a)(i) (unless, in the case of Section
9(a)(i), such termination arises from a change or development involving a
prospective change in or affecting the business or properties of the Insurer),
TMSI and the Seller shall reimburse the Representative for all of its reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of TMSI and the Seller herein contained or in any of the Basic
Documents, to the performance by TMSI and the Seller of their respective
obligations hereunder, and to the following further conditions:
(a) The Registration Statement shall have become effective and, at
Closing Time, no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission. As of the
Closing Time, the Prospectus shall have been filed with the Commission in
accordance with Rule 424 of the 1933 Act Regulations.
(b) At Closing Time, the Representative shall have received:
(i) The favorable opinion, dated as of Closing Time, of Stroock &
Stroock & Xxxxx LLP, counsel for the Underwriters, to the effect that:
(A) The Registration Statement is effective under the 1933
Act, and, to the best of their knowledge and information, no stop
order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission.
(B) At the time the Registration Statement became effective
and at the Representation Date, the Registration Statement (other
than the financial, numerical, statistical and quantitative
information included therein, as to which no opinion need be
rendered) complied as to form in all material respects with the
requirements of the 1933 Act and the Rules and Regulations
thereunder.
(C) The information in the Prospectus under "The Notes,"
"The Certificates" and "Description of the Purchase Agreements
and the Trust Documents" and the information in the Prospectus
Supplement under "Description of the Notes" and "Description of
the Certificates" insofar as they constitute summaries of certain
provisions of the Notes, the Certificates, the Indenture and the
Trust Agreement, summarizes fairly such provisions.
(D) The information in the base Prospectus under "Prospectus
Summary -- Tax Status," "Prospectus Summary -- ERISA
Considerations" "Federal Income Tax Consequences," and "ERISA
Considerations" and in the Prospectus Supplement under "Summary
of Terms -- Tax Status," "Summary of Terms -- ERISA
Considerations," "Certain Federal Income Tax Consequences," and
"ERISA Considerations," to the extent that they constitute
matters of federal, New York or California law, summaries of
legal matters, documents or proceedings or legal conclusions, has
been reviewed by them and is correct in all material respects.
(E) The Seller and the Servicer have been duly incorporated
and are validly existing and in good standing under the laws of
the State of Delaware.
(F) The Seller has the power to engage in the transactions
contemplated by each of this Agreement, the Pricing Agreement,
the Indemnification Agreement and the Trust Agreement, and the
Seller and the Servicer have the power to engage in the
transactions contemplated by each of the Sale and Servicing
Agreement, the Insurance and Indemnity Agreement and the Purchase
Agreement, and have all requisite power, authority and legal
right to execute and deliver this Agreement, the Pricing
Agreement, the Sale and Servicing Agreement, the Purchase
Agreement, the Indemnification Agreement, the Insurance and
Indemnity Agreement and the Trust Agreement, as the case may be
(and any other documents delivered in connection therewith) and
to perform and observe the terms and conditions of such
instruments.
(G) Each of the Sale and Servicing Agreement, the Insurance
and Indemnity Agreement and the Purchase Agreement has been duly
authorized, executed and delivered by the Seller and the
Servicer, and each of the Trust Agreement, the Indemnification
Agreement, the Pricing Agreement and this Agreement has been duly
authorized, executed and delivered by the Seller. Assuming due
authorization, execution and delivery by the other parties
thereto, the Sale and Servicing Agreement, the Purchase
Agreement, the Indemnification Agreement, the Insurance and
Indemnity Agreement, the Trust Agreement, the Pricing Agreement
and this Agreement are legal, valid and binding agreements
enforceable in accordance with their respective terms against the
Seller and the Servicer, as the case may be, subject (a) to the
effect of bankruptcy, insolvency, reorganization, moratorium and
similar laws relating to or affecting creditors' rights generally
and court decisions with respect thereto, (b) to the
understanding that no opinion is expressed as to the application
of equitable principles in any proceeding, whether at law or in
equity, and (c) to limitations of public policy under applicable
securities laws as to rights of indemnity and contribution
thereunder.
(H) The Receivables are chattel paper as defined in the UCC
as in effect in the State of California.
(I) The Seller is not, and will not as a result of the offer
and sale of the Securities as contemplated in the Prospectus and
this Agreement become, an "investment company" as defined in the
Investment Company Act of 1940, as amended (the "Investment
Company Act"), or a company "controlled by" an "investment
company" within the meaning of the Investment Company Act.
(J) All actions required to be taken and all filings
required to be made by the Seller or the Trust under the 1933 Act
and the 1934 Act prior to the sale of the Securities have been
duly taken or made.
(K) The Trust Agreement need not be qualified under the
Trust Indenture Act and the Trust is not required to register
under the Investment Company Act.
(L) The Indenture has been duly qualified under the Trust
Indenture Act.
Stroock & Stroock & Xxxxx LLP shall additionally provide an
opinion, in form and substance satisfactory to the Rating Agencies,
that if a court concludes that the transfer of the Receivables from
the Seller to the Owner Trustee on behalf of the Trust is a sale, the
interest of the Trust in the Receivables, the interest of the Trust in
the Seller's security interests in the Financed Vehicles securing the
Receivables and the proceeds of each of the foregoing will be
perfected upon the filing of appropriate UCC-1 financing statements
and, if a court concludes that such transfer is not a sale, the Sale
and Servicing Agreement constitutes a grant by the Seller to the Trust
of a valid security interest in the Receivables, the interest of the
Trust in the Seller's security interests in the Financed Vehicles
securing the Receivables and the proceeds of each of the foregoing,
which security interest will be perfected upon the filing of
appropriate UCC-1 financing statements.
Stroock & Stroock & Xxxxx LLP shall additionally provide an
opinion, in form and substance satisfactory to the Rating Agencies,
regarding the creation and attachment of a security interest in the
Collateral (including, without limitation, the Trust Estate, as to
which such opinion shall also cover the perfection and priority of the
Indenture Collateral Agent's interest therein) in favor of the
Indenture Trustee on behalf of the Noteholders. Such opinions may
contain such assumptions, qualifications and limitations as are
customary in opinions of this type and are reasonably acceptable to
counsel to the Underwriters. In rendering such opinion, such counsel
may state that they express no opinion as to the laws of any
jurisdiction other than the federal law of the United States of
America and the laws of the States of New York and California.
In rendering its opinion, Stroock & Stroock & Xxxxx LLP shall
additionally state that nothing has come to its attention that has
caused it to believe that the Registration Statement, at the time it
became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, at the Representation Date (unless the term "Prospectus"
refers to a prospectus which has been provided to the Underwriters by
TMSI for use in connection with the offering of the Securities which
differs from the Prospectus on file at the Commission at the
Representation Date, in which case at the time it is first provided to
the Underwriters for such use) or at Closing Time, included an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (other than
(i) the financial, numerical, statistical and quantitative information
contained therein and (ii) the information under the heading "The
Insurer," as to which such counsel need express no view).
In rendering its opinions, Stroock & Stroock & Xxxxx LLP may
rely on certificates of responsible officers of the Seller, the
Indenture Trustee, the Owner Trustee, and public officials or, as to
matters of law other than New York, California or Federal law or the
General Corporation Law of the State of Delaware, on opinions of other
counsel (copies of which opinions shall be delivered to you). Such
opinion may contain such assumptions, qualifications and limitations
as are customary in opinions of this type and are reasonably
acceptable to the Representative.
(ii) The favorable opinion of Stroock & Stroock & Xxxxx LLP,
special California counsel for the Seller and the Servicer, dated as
of the Closing Time to the effect that (i) noting the assignee's name
on a certificate of title, where a validly perfected security interest
in a motor vehicle, registered in California and for which a
certificate of title has been issued by the Department of Motor
Vehicles of the State of California, is not necessary to continue the
perfection of the security interest assigned as against the debtor on
the Contract, creditors and transferees of the debtor on the Contract,
and (ii) the Indenture Collateral Agent has acquired a perfected first
priority security interest in the Financed Vehicles located in the
State of California and subject to the statutes, laws and regulations
governing motor vehicles located in the State of California. Such
opinion may contain such assumptions, qualifications and limitations
as are customary in opinions of this type and are reasonably
acceptable to counsel to the Underwriters. In rendering such opinion,
such counsel may state that they express no opinion as to the laws of
any jurisdiction other than the federal law of the United States of
America and the laws of the State of California.
(iii) The favorable opinion, dated as of Closing Time, of
corporate counsel for the Seller, the Servicer and TMSI, in form and
substance satisfactory to counsel for the Underwriters, to the effect
that:
(A) TMSI has been duly organized and is validly existing and
is in good standing under the laws of the State of New Jersey.
(B) TMSI has the power to engage in the transactions
contemplated by this Agreement, the Pricing Agreement, the Sale
and Servicing Agreement, the Indemnification Agreement and the
Insurance and Indemnity Agreement and has all requisite power,
authority and legal right to execute and deliver this Agreement,
the Pricing Agreement, the Sale and Servicing Agreement, the
Indemnification Agreement and the Insurance and Indemnity
Agreement (and any other documents delivered in connection
therewith) and to perform and observe the terms and conditions of
such instruments.
(C) This Agreement, the Pricing Agreement, the Sale and
Servicing Agreement, the Indemnification Agreement and the
Insurance and Indemnity Agreement have been duly authorized,
executed and delivered by TMSI and, assuming due authorization,
execution and delivery by the other parties thereto, are legal,
valid and binding agreements of TMSI and assuming such agreements
were governed by the laws of the State of New Jersey, would be
enforceable in accordance with their respective terms against
TMSI subject (a) to the effect of bankruptcy, insolvency,
reorganization, moratorium and similar laws relating to or
affecting creditors' rights generally and court decisions with
respect thereto, (b) to the understanding that no opinion is
expressed as to the application of equitable principles in any
proceeding, whether at law or in equity, and (c) to limitations
of public policy under applicable securities laws as to rights of
indemnity and contribution thereunder.
(D) Neither the transfer of the Receivables by the Seller to
the Owner Trustee on behalf of the Trust, nor the assignment by
the Seller of the Trust Estate to the Trust, nor the consummation
of the transactions contemplated by, nor the fulfillment of the
terms of, the Sale and Servicing Agreement, the Indemnification
Agreement, the Insurance and Indemnity Agreement, the Purchase
Agreement, this Agreement and the Pricing Agreement, in the case
of the Seller and TMSI, and the Sale and Servicing Agreement, the
Insurance and Indemnity Agreement and the Purchase Agreement, in
the case of the Servicer, and the Trust Agreement, in the case of
the Seller, conflicts or will conflict with or results or will
result in a breach of or constitutes or will constitute a default
under (a) the Certificate of Incorporation or Bylaws of TMSI, the
Seller or the Servicer, as applicable, (b) the terms of any
material indenture or other material agreement or instrument of
which counsel has knowledge to which TMSI, the Seller or the
Servicer, as applicable, is a party or by which it is bound or to
which it is subject or (c) any statute or order, rule,
regulation, writ, injunction or decree of which counsel has
knowledge, or of any court, governmental authority or regulatory
body to which TMSI, the Seller or the Servicer, as applicable, is
subject or by which it is bound, or results in, or will result in
the creation or imposition of any lien or encumbrance upon the
Trust Estate or upon the related Securities, except as otherwise
contemplated by the Indenture.
(E) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
execution, delivery and performance by TMSI or the Seller of, or
compliance by TMSI or the Seller with, this Agreement, the
Pricing Agreement, the Sale and Servicing Agreement, the
Indemnification Agreement or the Insurance and Indemnity
Agreement, or the offer, issuance, sale or delivery of the
Securities, or, in the case of the Servicer, by the Servicer of,
or compliance by the Servicer with, the Sale and Servicing
Agreement, the Insurance and Indemnity Agreement or the Purchase
Agreement, or, in the case of the Seller, by the Seller of, or
compliance of the Seller with, the Trust Agreement or the
consummation of any other transactions by TMSI, the Seller or the
Servicer contemplated by the Sale and Servicing Agreement, the
Purchase Agreement, this Agreement, the Indemnification
Agreement, the Insurance and Indemnity Agreement, the Trust
Agreement and the Pricing Agreement, as the case may be, except
as may be required under the blue sky laws of any jurisdiction
(as to which such counsel need not opine) and such other
approvals as have been obtained.
(F) Except as set forth in the Prospectus Supplement, there
is no action, suit, proceeding or investigation pending or, to
the best of such counsel's knowledge, threatened against the
Seller, the Servicer or TMSI which, in such counsel's judgment,
either in any one instance or in the aggregate, may result in any
material adverse change in the business, operation, financial
condition, properties or assets of the Seller, the Servicer or
TMSI or in any material impairment of the right or ability of the
Seller, the Servicer or TMSI to carry on its business
substantially as now conducted or result in any material
liability on the part of the Seller, the Servicer or TMSI or
which would draw into question the validity of this Agreement,
the Pricing Agreement, the Certificates, the Purchase Agreement,
the Indemnification Agreement, the Insurance and Indemnity
Agreement, the Trust Agreement, the Sale and Servicing Agreement
or of any action taken or to be taken in connection with the
transactions contemplated thereby, or which would be likely to
impair materially the ability of any of the Seller, the Servicer
or TMSI to perform under the terms of this Agreement, the Pricing
Agreement, the Purchase Agreement, the Indemnification Agreement,
the Insurance and Indemnity Agreement, the Sale and Servicing
Agreement or the Trust Agreement, as applicable.
In rendering its opinions, such counsel may rely on
certificates of responsible officers of the Seller, the Servicer and
TMSI, and public officials or, as to matters of law other than New
Jersey or the Federal law, on opinions of other counsel (copies of
which opinions shall be delivered to you). Such opinion may contain
such assumptions, qualifications and limitations as are customary in
opinions of this type and are reasonably acceptable to the
Representative.
(iv) The favorable opinion of in-house counsel to the
Servicer, or such other counsel acceptable to counsel for the
Underwriters, dated as of Closing Time, satisfactory in form and
substance to counsel for the Underwriters, to the effect that:
Such counsel has been advised of the Servicer's standard
operating procedures relating to the Servicer's acquisition of a
perfected first priority security interest in the vehicles
financed by the Servicer pursuant to the retail installment sale
contracts in the ordinary course of the Servicer's business.
Assuming that the Servicer's standard procedures are followed
with respect to the perfection of security interests in the
Financed Vehicles (such counsel having no reason to believe that
the Servicer has not or will not continue to follow its standard
procedures in connection with the perfection of security
interests in the Financed Vehicles), the Servicer has acquired or
will acquire a perfected first priority security interest in the
Financed Vehicles.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are
reasonably acceptable to counsel to the Underwriters.
(v) The favorable opinion, dated as of Closing Time, of
general counsel for the Insurer, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(A) The Insurer 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) The Policies, the Indemnification Agreement and the
Insurance and Indemnity Agreement have been duly authorized,
executed and delivered by the Insurer.
(C) The Policies, the Indemnification Agreement and the
Insurance and Indemnity Agreement constitute valid and binding
obligations of the Insurer, enforceable against the Insurer 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 the Insurer and to the
application of general principles of equity and subject, in the
case of the Insurance and Indemnity Agreement, to principles of
public policy limiting the right to enforce the indemnification
provisions contained therein insofar as such provisions relate to
indemnification for liabilities arising under the securities law.
(D) Each Policy is exempt from registration under the
Securities Act of 1933, as amended (the "Act").
(E) Neither the execution nor the delivery by the Insurer of
each Policy, the Indemnification Agreement or the Insurance and
Indemnity Agreement, nor the performance by it of its obligations
thereunder, will conflict with any provision of the certificate
of incorporation or the by-laws of the Insurer or, to the best of
such counsel's knowledge, result in a breach of, or constitute a
default under, any agreement or other instrument to which the
Insurer is a party or by which it or any of its property is bound
or, to the best of such counsel's knowledge, violate any
judgment, order or decree applicable to the Insurer of any
governmental or regulatory body, administrative agency, court or
arbitrator having jurisdiction over the Insurer (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
Securities Act of 1933, as amended, and are therefore
unenforceable).
Such counsel shall additionally state that nothing has come
to its attention that has caused it to believe that, as of the
date of the Prospectus Supplement, relating to the offer and sale
of the Securities, to the Prospectus forming a part of the
Registration Statement on Form S-3 (No. 333-14075) filed by the
Company with the Securities and Exchange Commission and declared
effective on December 9, 1996, or as of the date of counsel's
opinion, the information set forth under the caption "The
Insurer" in the Prospectus Supplement, insofar as such statements
constitute a description of the Insurer, contained or contains an
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 (such counsel not being required to express an opinion
with respect to any financial statements or other financial
information contained or referred to therein). Such statement may
be given with the understanding that such 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 under
the Securities Act of 1933, as amended, in connection with the
public offer and sale of securities of such registrant.
In rendering this opinion, such counsel may rely, as to
matters of fact, on certificates of responsible officers of the
Insurer, the Trustee and public officials. Such opinion may
assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties
thereto other than the Insurer.
(vi) The favorable opinion, dated as of Closing Time, of
Xxxxxxxx, Xxxxxx & Finger, in form and substance satisfactory, to
counsel for the Underwriters, to the effect that:
(A) The Owner Trustee is a Delaware banking corporation duly
incorporated and organized and validly existing under the laws of
the State of Delaware.
(B) The Owner Trustee has the full corporate trust power to
accept the office of owner trustee under the Trust Agreement and
to enter into and perform its obligations under the Trust
Agreement, the Sale and Servicing Agreement and, on behalf of the
Trust, under the Indenture and the Sale and Servicing Agreement.
(C) The execution and delivery of the Trust Agreement, the
Sale and Servicing Agreement and, on behalf of the Trust, of the
Indenture and the Sale and Servicing Agreement, and the
performance by the Owner Trustee of its obligations under the
Trust Agreement and the Sale and Servicing Agreement, as well as
the performance by the Owner Trustee of its obligations on behalf
of the Trust under the Indenture and the Sale and Servicing
Agreement have been duly authorized by all necessary action of
the Owner Trustee and each has been duly executed and delivered
by the Owner Trustee.
(D) The Trust Agreement constitutes the valid and binding
obligations of the Owner Trustee enforceable against the Owner
Trustee in accordance with its terms.
(E) The execution and delivery by the Owner Trustee of the
Trust Agreement, the Sale and Servicing Agreement and, on behalf
of the Trust, of the Indenture and the Sale and Servicing
Agreement do not require any consent, approval or authorization
of, or any registration or filing with, any applicable
governmental authority.
(F) Each of the Notes and Certificates has been duly
executed and delivered by the Owner Trustee, on behalf of the
Trust.
(G) Neither the consummation by the Owner Trustee of the
transactions contemplated in the Sale and Servicing Agreement,
the Indenture or the Trust Agreement, nor the fulfillment of the
terms thereof by the Owner Trustee will conflict with, result in
a breach or violation of, or constitute a default under any law
or the charter, by-laws or other organizational documents of the
Owner Trustee or the terms of any indenture or other agreement or
instrument known to such counsel and to which the Owner Trustee
or any of its subsidiaries is a party or is bound or any
judgment, order or decree known to such counsel to be applicable
to the Owner Trustee or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Owner Trustee or any of
its subsidiaries.
(H) There are no actions, suits or proceedings pending or,
to the best of such counsel's knowledge, threatened against the
Owner Trustee (as owner trustee under the Trust Agreement or in
its individual capacity) before or by any governmental authority
that might materially and adversely affect the performance by the
Owner Trustee of its obligations under, or the validity or
enforceability of, the Trust Agreement or the Sale and Servicing
Agreement, as applicable.
(I) The execution, delivery and performance by the Owner
Trustee of the Sale and Servicing Agreement, the Indenture or the
Trust Agreement will not subject any of the property or assets of
the Trust or any portion thereof, to any lien created by or
resulting from any actions of the Owner Trustee that are
unrelated to the transactions contemplated in such agreements.
(J) The Trust has been duly formed and is validly existing
as a business trust under the Business Trust Statute. The Trust
Agreement authorizes the Trust to execute and deliver the Trust
Agreement, the Indenture and the Sale and Servicing Agreement, to
issue the Notes and the Certificates and to grant the Trust
Estate to the Trustee as security for the Notes.
(K) Assuming that the Certificates have delivered to the
Underwriter and paid for pursuant to the Underwriting Agreement,
the Certificates have been validly issued and are entitled to the
benefits of the Trust Agreement.
(L) To the extent that Article 9 of the Uniform Commercial
Code as in effect in the State of Delaware (the "Delaware UCC")
is applicable (without regard to conflicts of laws principles),
and assuming that the security interest created by the Indenture
in the Receivables has been duly created and has attached, upon
the filing of a UCC-1 financing statement with the Secretary of
State of the State of Delaware the Indenture Trustee will have a
perfected security interest in such Receivables and the proceeds
thereof, and such security interest will be prior to any other
security interest that is perfected solely by the filing of
financing statements under the Delaware UCC, excluding purchase
money security interests under Section 9-312(4) of the UCC and
temporarily perfected security interests in proceeds under
Section 9-306(3) of the Delaware UCC.
(M) No re-filing or other action is necessary under the
Delaware UCC in order to maintain the perfection of such security
interest except for the filing of continuation statements at five
year intervals.
(N) Under Section 3805(b) of the Business Trust Statute, no
creditor of any Certificateholder shall have any right to obtain
possession of, or otherwise exercise legal or equitable remedies
with respect to, the property of the Trust except in accordance
with the terms of the Trust Agreement.
(O) Under Section 3805(c) of the Business Trust Statute, and
assuming that the Sale and Servicing Agreement conveys good title
to the Receivables to the Trust as a true sale and not as a
security arrangement, the Trust rather than the
Certificateholders is the owner of the Receivables.
(P) The Delaware Trustee is not required to hold legal title
to the Trust Estate in order for the Trust to qualify as a
business trust under the Act.
(Q) The execution and delivery by the Owner Trustee of the
Trust Agreement and, on behalf of the Trust, the Indenture and
the Sale and Servicing Agreement do not require any consent,
approval or authorization of, or any registration or filing with,
any governmental authority of the State of Delaware, except for
the filing of the Certificate of Trust with the Secretary of
State.
(R) Neither the consummation by the Owner Trustee of the
transactions contemplated in the Trust Agreement or, on behalf of
the Trust, the transactions contemplated in the Trust Agreement,
the Indenture and the Sale and Servicing Agreement nor the
fulfillment of the terms thereof by the Owner Trustee will
conflict with or result in a breach or violation of any law of
the State of Delaware.
Such opinion may contain such assumptions, qualifications and
limitations as are customary in opinions of this type and are
reasonably acceptable to counsel to the Underwriters. In rendering
such opinion, such counsel may state that they express no opinion as
to the laws of any jurisdiction other than the federal law of the
United States of America and the laws of the State of Delaware.
(vii) The favorable opinion, dated as of Closing Time, of Xxxxx
Xxxxxxxxxx, counsel for the Indenture Trustee, the Indenture
Collateral Agent, in form and substance satisfactory to counsel for
the Underwriters.
(viii) Such other opinions as may be requested by (i) the Rating
Agencies, which opinions shall also be for the benefit of the Insurer
and the Underwriters and (ii) the Insurer, which opinions shall also
be for the benefit of the Underwriters.
(c) At Closing Time there shall not have been, since the date hereof
or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Seller, the Servicer or TMSI and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Representative shall have received a
certificate signed by one or more duly authorized officers of TMSI and the
Seller, dated as of Closing Time, to the effect that (i) there has been no
such material adverse change; (ii) the representations and warranties in
Section 1(a) hereof are true and correct in all material respects with the
same force and effect as though expressly made at and as of Closing Time;
(iii) each of TMSI and the Seller has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to Closing Time; and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the Commission.
(d) At or prior to the delivery of the Prospectus Supplement, the
Representative shall have received from KPMG Peat Marwick a letter dated as
of such date and in form and substance satisfactory to the Representative,
to the effect that they have carried out certain specified procedures, not
constituting an audit, with respect to (i) certain amounts, percentages and
financial information relating to the Servicer's servicing portfolio which
are included in the Prospectus Supplement and which are specified by the
Underwriter, and have found such amounts, percentages and financial
information to be in agreement with the relevant accounting, financial and
other records of the Servicer, (ii) certain information regarding the
Receivables and the Receivables Files which are specified by the
Representative and contained in the Prospectus Supplement and setting forth
the results of such specified procedures and (iii) certain information
regarding the Receivables and the Receivables Files which are specified by
the Representative, as representative of the Underwriters, and contained in
the Current Report on Form 8-K described in Section 5(1) hereof and setting
forth the results of such specified procedures.
(e) At Closing Time, the Representative shall have received from the
Trustee a certificate signed by one or more duly authorized officers of the
Indenture Trustee, dated as of Closing Time, as to the due acceptance of
the Indenture by the Indenture Trustee and the due authentication of the
Notes by the Indenture Trustee and such other matters as the Representative
shall request.
(f) At Closing Time, the Representative shall have received a
certificate signed by one or more duly authorized officers of the Seller,
the Servicer and TMSI dated as of Closing Time to the effect that:
(i) the representations and warranties of TMSI, the Seller and
the Servicer in each of the Basic Documents to which it is a party are
true and correct in all material respects at and on the Closing Date,
with the same effect as if made on the Closing Date;
(ii) each of TMSI, the Seller and the Servicer has complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied in connection with the sale and delivery of the
Securities;
(iii) all statements and information contained in the Prospectus
Supplement under the caption "The Receivables" and contained in the
base Prospectus under the captions "The Receivables," "The Seller,"
"TMS Auto Finance," and "The Money Store" are true and accurate in all
material respects and nothing has come to such officer's attention
that would lead him to believe that any of the specified sections
contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements and
information therein, in the light of the circumstances under which
they were made, not misleading;
(iv) the information set forth in the Schedule of Receivables
required to be furnished pursuant to the Sale and Servicing Agreement
is true and correct in all material respects;
(v) the copies of the Charter and By-laws of the Seller, the
Servicer and TMSI attached to such certificate are true and correct
and, are in full force and effect on the date thereof;
(vi) except as may otherwise be disclosed in the Prospectus,
there are no actions, suits or proceedings pending (nor, to the best
knowledge of such officers, are any actions, suits or proceedings
threatened), against or affecting the Seller, the Servicer or TMSI,
which if adversely determined, individually or in the aggregate, would
adversely affect the Seller's or Servicer's obligations under any of
the Basic Documents to which it is a party;
(vii) each person who, as an officer or representative of the
Seller, the Servicer or TMSI, as the case may be, signed (a) this
Agreement, (b) the Sale and Servicing Agreement, (c) the Trust
Agreement, (d) the Purchase Agreement, (e) the Pricing Agreement, (f)
the Insurance and Indemnity Agreement, or (g) the Indemnification
Agreement or (h) any other document delivered prior hereto or on the
date hereof in connection with the purchase described in this
Agreement and the Sale and Servicing Agreement, was, at the respective
times of such signing and delivery, and is now duly elected or
appointed, qualified and acting as such officer or representative;
(viii) except as otherwise set forth in the Sale and Servicing
Agreement, each of the Receivables referred to in the Sale and
Servicing Agreement was purchased by the Seller from TMS Auto Finance,
which acquired it from a Dealer;
(ix) a certified true copy of the resolutions of the board of
directors of TMSI and the Seller with respect to the sale of the
Securities subject to this Agreement and the Sale and Servicing
Agreement, which resolutions have not been amended and remain in full
force and effect are attached to such certificate;
(x) all payments received with respect to the Initial Receivables
after the Initial Cutoff Date, and certain payments received with
respect to the Precomputed Receivables on or prior to the Initial
Cutoff Date that relate to Scheduled Payments due after the Cutoff
Date, as set forth in the Sale and Servicing Agreement, have been
deposited in the Collection Account, and are, as of the Closing Date,
in the Collection Account;
(xi) each of TMSI, the Seller and the Servicer has complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied in connection with the issuance, sale and
delivery of the Receivables and the Securities;
(xii) all statements contained in the Prospectus with respect to
TMSI, the Seller and the Servicer are true and accurate in all
material respects and nothing has come to such officer's attention
that would lead such officer to believe that the Prospectus contains
any untrue statement of a material fact or omits to state any material
fact;
(g) On or before the Closing Time the Seller shall have delivered to
the Trustee, to hold in trust for the benefit of the holders of the Notes
and Certificates, Initial Receivables with an aggregate Principal Balance
as of the Initial Cutoff Date of approximately $100,118,176.73. TMSI and
the Seller shall, immediately following the sale of the Securities, cause
to be deposited with the Indenture Trustee, as collateral agent, for
deposit (i) in the Pre-Funding Account (as defined in the Prospectus
Supplement), cash in an amount equal to the sum of approximately
$26,100,000, and (ii) in the Capitalized Interest Account (as defined in
the Prospectus Supplement), cash in an amount equal to a sum satisfactory
to the Insurer.
(h) The Policies shall have been delivered to the Trustee.
(i) At Closing Time, the Notes, and the Certificates shall have been
rated "AAA" by S & P and "AAA" by Xxxxx'x and neither S&P nor Xxxxx'x shall
have placed the Notes or the Certificates under surveillance or review with
possible negative implications.
(j) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and delivery of
the Securities as herein contemplated and related proceedings, or in order
to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all
proceedings taken by TMSI, the Seller and the Servicer in connection with
the issuance and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to TMSI and counsel for the
Underwriters.
(k) On or before the Closing Time TMSI shall have delivered to the
Representative a Current Report on Form 8-K containing a detailed
description of the Receivables actually being delivered to the Owner
Trustee and pledged to the Indenture Trustee at Closing Time, in form and
substance satisfactory to the Representative.
(l) The Representative shall have received evidence satisfactory to it
that, on or before the Closing Date, UCC-1 financing statements have been
or are being filed in the appropriate filing offices reflecting the
transfer of the interest in the Receivables to the Owner Trustee on behalf
of the Trust and the proceeds thereof to the Trust and the grant of the
security interest by the Trust in the Receivables and the proceeds thereof
to the Indenture Trustee.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representative by notice to the Seller at any time at or prior to Closing time,
and such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof.
Section 6. INDEMNIFICATION.
(a) TMSI and the Seller jointly and severally agree to indemnify and hold
harmless each of the Underwriters and each person, if any, who controls either
of the Underwriters within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any untrue statement or omission described in clause
(i) above, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of TMSI; and
(iii) against any and all expense whatsoever, as reasonably incurred
(including, subject to Section 6(c) hereof, the reasonable fees and
disbursements of counsel chosen by such Underwriter) in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any untrue statement or omission described
in clause (i) above, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply
to any loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with the information referred to in clauses (w),
(x), (y) and (z) of the immediately following paragraph; provided, further, such
indemnity with respect to any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with the
information referred to in clauses (w), (x), (y) and (z) of the immediately
following paragraph and contained in the Prospectus or any preliminary
prospectus shall not inure to the benefit of either Underwriter (or person
controlling such Underwriter) from whom the person suffering any such loss,
claim, damage or liability purchased the Notes or Certificates which are the
subject thereof if such person did not receive a copy of the Prospectus at or
prior to the confirmation of the sale of such Notes or Certificates to such
person in any case where such delivery is required by the 1933 Act and the
untrue statement or omission of a material fact contained in any preliminary
prospectus was corrected in the Prospectus and the Prospectus was delivered to
such Underwriter in a timely manner in accordance with Section 3(d).
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless TMSI and the Seller, their directors, each of TMSI's and Seller's
officers who signed the Registration Statement, and each person, if any, who
controls TMSI or the Seller within the meaning of Section 15 of the 1933 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, contained in written information furnished by such Underwriter
through the Representative specifically for use in the Prospectus Supplement, it
being understood and agreed that the only such information is contained in (w)
the seventh paragraph on the inside cover (discussing the risk of a lack of
secondary trading) of the Prospectus Supplement (or any amendment or supplement
thereto), (x) the first paragraph under "Risk Factors--Limited Liquidity" of the
Prospectus, (y) the information contained under "Underwriting" of the Prospectus
Supplement, and (z) any Computational Materials prepared by such Underwriter,
except to the extent of any errors in the Computational Materials that are
caused by errors in the pool information provided by the Company to the
applicable Underwriter. The parties hereto agree that no Underwriter shall be
under any liability to the Company, the Originators or any other person
identified in this paragraph (b) for Computational Materials prepared by any
other Underwriter.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the omission to so notify the indemnifying party will not relieve the
indemnifying party from any liability that it may have to any indemnified party
except to the extent that it has been prejudiced in any material respect by such
failure or from any liability that it may have otherwise than under this Section
6. In case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses other than the reasonable costs of investigation subsequently
incurred in connection with the defense thereof unless (i) the indemnified party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence, (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii). After such notice from the indemnifying party to
such indemnified party, the indemnifying party will not be liable for the costs
and expenses of any settlement of such action effected by such indemnified party
without the consent of the indemnifying party. No indemnifying party shall,
without the prior written consent of the indemnified party, which consent shall
not be unreasonably withheld, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified party unless
such settlement includes an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such action.
Section 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 hereof is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, TMSI and the Seller
jointly and severally, on the one hand, and the Underwriters, on the other hand,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by TMSI
and the Seller jointly and severally, on the one hand, and the Underwriters, on
the other hand (i) in such proportion as is appropriate to reflect the relative
benefits received by TMSI and the Seller on the one hand and the Underwriters on
the other from the sale of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of TMSI and the Seller on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by TMSI and
the Seller on the one hand and the Underwriters on the other shall be deemed to
be in such proportion that the Underwriters are responsible for that portion
represented by the excess, if any, of the purchase price received by the
Underwriters for the sale of the Securities over the purchase price paid by the
Underwriters for the Securities (the "Spread") (or, with respect to
Computational Materials furnished by an Underwriter, the Spread received by such
Underwriter with respect to the principal amount of Securities set forth next to
such Underwriter's name on Schedule I hereto; and TMSI and the Seller shall be
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by TMSI or the Seller or by any Underwriter
through the Representative and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or
omission. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this Section 7. Notwithstanding the
provisions of this Section 7, the Underwriters shall not be required to
contribute any amount in excess of the amount by which the Spread exceeds the
amount of any damages which the Underwriters have otherwise been required to pay
in respect of such losses, liabilities, claims, damages and expenses. For
purposes of this Section 7, each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Underwriters and each respective director of the Seller,
each officer of the Seller who signed the Registration Statement, and each
respective person, if any, who controls the Seller within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the Seller.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement and
the Pricing Agreement, or contained in certificates of officers of TMSI and the
Seller submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of the Underwriters
or any controlling person thereof, or by or on behalf of TMSI or the Seller, and
shall survive delivery of the Securities to the Underwriters.
Section 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this Agreement, by notice to TMSI and
the Seller, at any time at or prior to Closing Time (i) if there has been, since
the time of execution of this Agreement or since the respective dates as of
which information is given in the Registration Statement or Prospectus, any
change, or any development involving a prospective change, in or affecting
particularly the business or properties of TMSI, the Servicer or the Seller
considered as one entity or the Insurer which, in the Representative's
reasonable judgment, materially impairs the investment quality of the Notes or
the Certificates; (ii) if there has occurred any downgrading in the rating of
the claims-paying ability of the Insurer by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the 0000 Xxx) which, in the reasonable judgment of the Representative,
materially impairs the investment quality or marketability of the Notes or the
Certificates or if the claims-paying ability of the Notes or the Insurer has
been put on the "watch list" of any such rating organization with negative
implications; (iii) if there has occurred any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any setting
of minimum prices for trading on such exchange or by any governmental authority;
(iv) if any banking moratorium has been declared by Federal or New York
authorities; (v) any suspension or limitation of trading of any securities of
TMSI on any exchange or in the over-the-counter market; or (vi) if there has
occurred any outbreak or escalation of major hostilities in which the United
States of America is involved, any declaration of war by Congress, or any other
substantial national or international calamity or emergency if, in the
Representatives judgment, the effects of any such outbreak, escalation,
declaration, calamity, or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Notes or the
Certificates.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof.
Section 10. COMPUTATIONAL MATERIALS. (a) It is understood that any
Underwriter may prepare and provide to prospective investors certain
Computational Materials (as defined below) in connection with the Company's
offering of the Securities, subject to the following conditions:
(i) Each Underwriter shall comply with all applicable laws and
regulations in connection with the use of Computational Materials including
the No-Action Letter of May 20, 1994 issued by the Commission to Xxxxxx,
Xxxxxxx Acceptance Corporation I, Xxxxxx, Peabody & Co. Incorporated and
Xxxxxx Structured Asset Corporation, as made applicable to other issuers
and underwriters by the Commission in response to the request of the Public
Securities Association dated May 24, 1994, and the No-Action Letter of
February 17, 1995 issued by the Commission to the Public Securities
Association (collectively, the "Xxxxxx/PSA Letters").
(ii) As used herein, "Computational Materials" and the term "ABS Term
Sheets" shall have the meanings given such terms in the Xxxxxx/PSA Letters,
but shall include only those Computational Materials that have been
prepared or delivered to prospective investors by or at the direction of an
Underwriter.
(iii) Each Underwriter shall provide the Company with representative
forms of all Computational Materials prior to their first use, to the
extent such forms have not previously been approved by the Company for use
by such Underwriter. The Underwriter shall provide to the Company, for
filing on Form 8-K as provided in Section 11(b), copies of all
Computational Materials that are to be filed with the Commission pursuant
to the Xxxxxx/PSA Letters. The Underwriter may provide copies of the
foregoing in a consolidated or aggregated form. All Computational Materials
described in this subsection (a)(iii) must be provided to the Company not
later than 10:00 a.m. New York time one business day before filing thereof
is required pursuant to the terms of this Agreement.
(iv) If an Underwriter does not provide any Computational Materials to
the Company pursuant to subsection (a)(iii) above, such Underwriter shall
be deemed to have represented, as of the Closing Date, that it did not
provide any prospective investors with any information in written or
electronic form in connection with the offering of the Certificates that is
required to be filed with the Commission in accordance with the Xxxxxx/PSA
Letters.
(v) In the event of any delay in the delivery by any Underwriter to
the Company of all Computational Materials required to be delivered in
accordance with subsection (a)(iii) above, the Company shall have the right
to delay the release of the Prospectus to investors or to any Underwriter,
to delay the Closing Date and to take other appropriate actions in each
case as necessary in order to allow the Company to comply with is agreement
set forth in Section 11(b) to file the Computational Materials by the time
specified therein.
(b) The Company shall file the Computational Materials (if any) provided to
it by each Underwriter under Section 11(a)(iii) with the Commission pursuant to
a Current Report on Form 8-K no later than 10:00 a.m. on the date required
pursuant to the Xxxxxx/PSA Letters.
Section 11. NOTICES. All notices and other communi- cations hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Representative shall be directed to Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Asset Finance Group (fax: (000) 000-0000); and
notices to TMSI or the Seller shall be directed to it at 0000 Xxxxxx Xxxxxx,
Xxxxx, Xxx Xxxxxx 00000, Attention: Executive Vice President (fax: (908)
000-0000).
Section 12. PARTIES. This Agreement and the Pricing Agreement shall each
inure to the benefit of and be binding upon the Underwriters, TMSI, the Seller
and their respective successors. Nothing expressed or mentioned in this
Agreement or the Pricing Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters, TMSI, the Seller and
their respective successors and the controlling persons and officers and
directors referred to in Section 6 and 7 hereof and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or with
respect to this Agreement or the Pricing Agreement or any provision herein or
therein contained. This Agreement and the Pricing Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the Underwriters, TMSI, the Seller and their respective successors,
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Notes or Certificates from any Underwriter shall be
deemed to be a successor by reason merely of such purchase. TMSI and the Seller
shall be jointly and severally liable for all obligations incurred under this
Agreement and the Pricing Agreement.
Section 13. GOVERNING LAW AND TIME. This Agreement and the Pricing
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to principles of conflicts of laws, applicable
to agreements made and to be performed in said State. Unless otherwise set forth
herein, specified times of day refer to New York time.
Section 14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to TMSI and the Seller a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters, the Seller and TMSI in accordance with its terms.
Very truly yours,
TMS AUTO HOLDINGS, INC.
By: /s/ Xxxxxx Dear
Name: Xxxxxx Dear
Title: Executive Vice President
THE MONEY STORE INC.
By: /s/ Xxxxxx Dear
Name: Xxxxxx Dear
Title: Executive Vice President
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXX XXXXXX INC.
CREDIT SUISSE FIRST BOSTON
By: XXXXX XXXXXX INC.
By: /s/ Xxxx XxXxxxxxxx
Name: Xxxx XxXxxxxxxx
Title: Associate
SCHEDULE I
INITIAL
PRINCIPAL AMOUNT OF NOTES
UNDERWRITER CLASS
Xxxxx Xxxxxx Inc. A-1 $ 82,000,000
Credit Suisse First A-1 $ 9,000,000
Boston
Xxxxx Xxxxxx Inc. A-2 $ 15,400,000
Credit Suisse First A-2 $ 21,000,000
Boston
PRINCIPAL INITIAL
UNDERWRITER AMOUNT OF
CERTIFICATES
Xxxxx Xxxxxx Inc. $ 2,600,000
Credit Suisse First $ 0
Boston
